06-000258 Rafael Oropesa vs. Florida Real Estate Appraisal Board Status: Closed Recommended Order on Thursday, July 13, 2006.

Summary: Petitioner failed to disclose felony convictions on his application for licensure and therefore to prove entitlement to licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAFAEL OROPESA, )

)

Petitioner, )

)

vs. ) Case No. 06 - 0258

)

FLORIDA REAL ESTATE APPRAISAL )

BOARD, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on April 10,

2006, via videoteleconference at sites in Miami and

Tallahassee, Florida, before Florence Snyder Rivas, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : John R. Sutton, Esquire

Sutton & Associates

7721 Southwest 62nd Avenue, Suite 101

South Miami, Florida 33143

For Respondent: Brian J. Stabley, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

ST ATEMENT OF THE ISSUE

Whether Petitioner Rafael Oropesa is entitled to licensure

as a Florida registered trainee real estate appraiser.

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated January 6, 2006, the

Respondent Florida Real Estate Appraisal Board (Respondent)

advised Petitioner (Petitioner) that his application for

licensure as a Florida registered trainee real estate

appraiser (trainee appraiser) was denied. Petitioner timely

filed a Petition for Administrative Relief (Petition) invoking

hi s right to an administrative hearing to contest the denial.

The identity of witnesses, exhibits, and attendant

rulings are contained in the one - volume transcript filed May

17, 2006. The parties timely submitted proposed recommended

orders which have been carefully considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at

the final hearing and on the entire record of this proceeding,

the following findings of fact are made:

1. Petitioner applied for licensure as a trainee

apprais er. Respondent, an agency of state government, is

charged with the duty of licensing and regulating Florida real

estate brokers, sales associates, schools and appraisers.

With particular relevance to the instant case, it is

Respondent's responsibility to investigate the qualifications

of individuals who apply for licensure as trainee appraisers,

and to issue licenses to applicants who meet the licensure

criteria set forth in relevant provisions of the Florida

Statutes. Respondent determined that Petitione r did not meet

licensure criteria and denied his application.

2. Respondent requires applicants to submit, in writing,

information relevant to its investigation of the

qualifications of individuals who apply for licensure as

trainee appraisers. Responde nt prescribes the form and detail

required of applicants in submitting such information. More

specifically, applicants are provided application forms

approved by Respondent (application forms). The application

forms include detailed, specific, and unambi guous questions

and instructions. Applicants are required to "attest" that

they read the questions asked in the application and answered

the questions "completely and truthfully to the best of

[applicant's] knowledge." Once a completed application is

sub mitted, Respondent's staff commences to verify information

provided and attested to by the applicant, and to make a

recommendation regarding the applicant's qualifications for

licensure. Respondent reviews staff recommendations and makes

a determination a s to whether the applicant meets licensure

criteria; based upon its determination, Respondent grants or

denies licensure.

3. Upon review and investigation of the information

provided and attested to by Petitioner, staff determined that

Petitioner failed to meet licensure criteria and recommended

that his application for licensure be denied. The staff

recommendation was based upon Petitioner's criminal record,

which included three felony convictions for crimes involving

moral turpitude, as well as Petitio ner's failure to disclose

two of the convictions in such form and detail as Respondent

prescribes. At a meeting held October 3, 2005, Respondent

considered Petitioner's application and afforded Petitioner a

full opportunity to present whatever information he wished

Respondent to consider. Following discussion of Petitioner's

criminal record, and his failure to disclose two of the

convictions, Respondent concluded that Petitioner had not

demonstrated that he met licensure criteria.

4. The evidence establi shed and Petitioner admits that

on or about February 20, 1991, the Circuit Court of the 13th

Judicial Circuit, in and for Hillsborough County, Florida (the

Court) adjudicated Petitioner guilty of three felonies he

committed on or about April 19, 1990: att empted arson; armed

burglary of a structure; and making, possessing, throwing,

placing, projecting, or discharging a destructive device.

Petitioner broke into the referenced structure, a building

which housed a bar owned by a business competitor, for the

purpose of destroying the structure and its contents.

Following Petitioner's conviction, the Court pronounced

sentence of 30 years in prison, of which 15 were suspended at

the time of sentencing. Petitioner served two years in

prison, at which time he wa s released and placed on probation.

Petitioner was released from probation on or about October

27, 2000.

5. On or about August 2, 2005, Petitioner filed his

application forms. The application forms include "background

information" questions, one of whi ch asks if the applicant has

ever been convicted of crime(s) other than minor traffic

offenses. Applicants who answer this question in the

affirmative are unambiguously instructed to provide "full

details of any criminal conviction . . . including the nat ure

of any charges, dates, outcomes, sentences, and/or conditions

imposed; the dates, name and location of the court and/or

jurisdiction in which any proceedings were held or are

pending. . . ." (full details). Applicants are directed to

supply full detai ls on a separate form known as DBPR 0050 - 1 ---

Explanatory Information for Background Questions (form 0050 -

1). Form 0050 - 1 contains space for applicants to list the

crimes of which they have been convicted and to provide the

required full details with respe ct to each offense.

6. Having answered the background question regarding

criminal conviction(s) in the affirmative, Petitioner filled

out form 0050 - 1. On it, he disclosed only his conviction for

attempted arson; he failed to reveal his contemporaneous

c onvictions on the charges of armed burglary of a structure

and making, possessing, throwing, placing, projecting, or

discharging a destructive device.

7. Petitioner does not claim that he did not understand

the form and detail Respondent had prescribed w ith reference

to the disclosures required to be made on the application

forms in general and form 0050 - 1 in particular. Rather, he

attempted to justify his failure to disclose, claiming under

oath that he had attached "court documents" (documents) to his

application; that the documents he furnished fully disclosed

all required information; and that the documents had been lost

by Respondent. Assuming arguendo that Respondent has

discretion to grant licensure to an applicant who chooses to

submit documents i n lieu of submitting an application in the

form and detail prescribed by Respondent, this Petitioner is

not a candidate for the exercise of such discretion. The

fact - finder had the opportunity to closely observe

Petitioner's demeanor as he testified that he had attached

documents to his application, and that the documents fully

disclosed all information required to be disclosed by

applicants with criminal backgrounds. On direct and cross -

examination with respect to the documents, as well as with

respect t o matters of lesser significance, Petitioner was

evasive and on occasion combative. Petitioner's testimony

regarding the documents was not corroborated in any way. The

fact - finder does not believe that Petitioner attached

documents to his application; it follows that Respondent did

not lose any documents. There is no persuasive evidence that

Petitioner's application was mishandled in any way.

8. Even if the fact - finder credited Petitioner's

uncorroborated testimony to the effect that he had furnished

f ull details regarding his criminal history, the crimes

themselves are sufficiently egregious to warrant a denial of

licensure. Each of the Petitioner's crimes involved moral

turpitude. Each related directly to the activities of a

trainee appraiser, in th at each was calculated to cause the

destruction of real and personal property. In this case, the

property Petitioner sought to destroy belonged to the owners

of a business competitor. Petitioner's crimes victimized not

only the owners of the structure, b ut also their employees,

customers, and vendors. Because trainee appraisers have

substantial access to the property of sellers and purchasers,

a record of crimes against property raises grave concerns as

to an applicant's fitness for licensure. Petitione r's crimes

reflect depraved indifference to the lives of individuals who

may have been in the structure at the time the crimes were

committed, as well as to the lives of the firefighters and

police who would forseeably be called upon to put out the fire

an d to pursue the individual(s) who committed the crimes.

Licensure is limited to applicants who demonstrate competence

and qualifications to make real estate appraisals with safety

to those with whom they may undertake a relationship of trust

and confidenc e. Petitioner's crimes demonstrate that he lacks

the requisite trustworthiness, competence, and qualifications

for licensure.

9. Petitioner's failure to reveal two of his felony

convictions on form 0050 - 1 furnishes an independent basis upon

which licensu re should be denied. Form 0050 - 1 as attested to

by Petitioner was an attempt to obtain a license by means of

knowingly making a false statement, submitting false

information, refusing to provide complete information in

response to an application question. Petitioner's form 0050 - 1

was a knowing fraud, misrepresentation, and concealment with

respect to information at the heart of Respondent's discharge

of its duty to assure that applicants meet statutory criteria

for licensure.

CONCLUSIONS OF LAW

10. Th e Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and

120.57(1), Florida Statutes (2006).

11. To prevail in this proceeding, Petitioner must prove

by a preponderance of the evidence that he meets licensure

criteria set forth in relevant provisions of the Florida

Statutes. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and

Company , 670 So. 2d 932 ( Fla. 1996). Petitioner has failed to

meet this burden.

12. Section 475.615, Florida Statutes (2006), addresses

qualifications for licensure as a trainee appraiser and

provides in relevant part:

(1) Any person desiring to act as a

registered trainee ap praiser or as a

licensed or certified appraiser must make

application in… such form and detail as the

board shall prescribe. . .

* * *

(6) All applicants must be competent and

qualified to make real estate appraisals

with safety to those with whom t hey may

undertake a relationship of trust and

confidence and the general public. . . .

13. Section 475.624, Florida Statutes, provides, in

relevant part:

The [Respondent] may deny an application

for registration, licensure, or

certification . . . if i t finds that the

[applicant]:

* * *

(5) Has been convicted or found guilty

of, or entered a plea of nolo contendere

to, regardless of adjudication, a crime . .

. which involves moral turpitude . . .

* * *

(12) Has obtained or attempted to ob tain

a registration, license, or certification

by means of knowingly making a false

statement, submitting false information,

refusing to provide complete information in

response to an application question, or

engaging in fraud, misrepresentation, or

concea lment.

14. Petitioner committed three felonies, each of which

involves moral turpitude within the meaning of Section

475.624(5), Florida Statutes (2006). The crimes he committed

are directly related to the activities of trainee appraisers

in that they w ere intended to destroy real and personal

property. Petitioner's crimes violated not only the criminal

laws of Florida, but also the basic precepts of a civilized

society. Section 475.615(6) provides that licensure may be

granted only upon a showing by t he applicant that he is

qualified to make real estate appraisals with safety to those

with whom he may undertake a relationship of trust and

confidence and the general public. Considered individually or

taken together, Petitioner's crimes demonstrate he i s not so

qualified.

15. Even if Petitioner's crimes did not involve moral

turpitude, he would yet not be entitled to licensure inasmuch

as he attempted to obtain licensure by means of knowingly

making a false statement, submitting false information, and

refusing to provide complete information with reference to his

criminal history. Deliberate dishonesty with respect to any

disclosure prescribed by Respondent on the application forms,

standing alone, would warrant denial of licensure. The

response provi ded by Petitioner on form 0050 - 1 was a

deliberate attempt to obtain licensure by means of knowingly

misrepresenting and concealing information which he was

required to provide. Petitioner knowingly engaged in fraud,

misrepresentation and concealment in co mpleting and attesting

to the accuracy of all information he provided on form 0050 - 1

in contravention of Section 475.624(12), Florida Statutes

(2006).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Respondent enter a final

order denying Petitioner's application for licensure as a

Florida registered trainee real estate appraiser.

DONE AND ENTERED this 13th day of July, 2006, in

Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of July, 2006.

COPIES FURNISHED :

Brian J. Stabley, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

John R. Sutton, Esquire

John R. Sutton & Associates, P.A.

7721 Southwest 62nd Avenue, Suite 101

South Miami, Florida 33143

Frank Gregoire, Chairman

Real Estate Appraisal Board

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32802 - 1900

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.