06-003036 Sonia L. Taylor vs. Department Of Business And Professional Regulation, Florida Real Estate Commission Status: Closed Recommended Order on Tuesday, January 9, 2007.

Summary: Petitioner failed to present evidence to demonstrate that she was rehabilitated, after being involved in numerous criminal offenses in the past. Therefore, her application for licensure as a real estate associate should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SONIA L. TAYLOR , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3036

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

FLORIDA REAL ESTATE COMMISSION , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 23, 2006, before Carolyn S. Holifield, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings. The hearing was conducted by video

teleconference at sites in Tampa and Tallahassee, Florida.

APPEARANCES

For Petitioner: Sonia L. Taylor, pro se

802 W. West Street

Tampa, Florida 33602

For Respondent: Claudel Pressa, Esqu ire

Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is eligible

for licensure as a real estate sales associate.

PRELIMINARY STATEMENT

By application dated November 25, 2005, Petitioner,

Sonia L. Taylor (Petitioner), applied for licensure as a real

estate sales associate. The applicati on was considered by the

Florida Real Estate Commission (Florida Real Estate Commission

or Commission) at its meeting of April 18, 2006, in Orlando,

Florida. The letter that notified Petitioner of the meeting

advised her to furnish the Commission with at least three

letters of recommendation "from persons who know of [her]

honesty, truthfulness, trustworthiness, good character and good

reputation," two of which must be from individuals who are not

related to Petitioner. The letter from the Commission also

advised Petitioner that the requested letters of recommendations

would assist the Commission in determining her eligibility for

licensure. Petitioner did not attend the Commission's April 18,

2005, meeting nor was she represented at the meeting. 1

On May 19, 2006, the Florida Real Estate Commission issued

a Notice of Intent to Deny Petitioner's application for

licensure as a real estate sales associate. According to the

Notice of Intent to Deny, the application was denied based on

the following findings m ade by the Commission: (1) Petitioner's

criminal record as revealed in her application; (2) Petitioner's

testimony/evidence in explanation/mitigation was unpersuasive 2 ;

(3) Petitioner's criminal history in recent time;

(4) Petitioner's criminal history sho wed pattern and practice of

criminal behavior over an extended period of time; and

( 5) Petitioner is a convicted felon.

Based on the foregoing findings, the Commission determined

that Petitioner did not meet the eligibility requirements for

licensure in Su bsection 475.17(1)(a), Florida Statutes (2005). 3

According to the Conclusions of Law reached in the Notice of

Intent to Deny, Petitioner failed to demonstrate honesty,

truthfulness, trustworthiness, and good character, and did not

have a good reputation fo r fair dealing. The Commission also

concluded that several of the findings were grounds for

suspending or revoking a license and, thus, were a basis for

denying Petitioner's application, pursuant to Subsection

475.17(1)(a) and Section 475.181, Florida Sta tutes 2005. 4

Petitioner timely challenged the findings and conclusions

in the Commission's Notice of Intent to Deny her application for

licensure as a real estate associate. On August 18, 2006, the

Commission forwarded the matter to the Division of

Admini strative Hearings for assignment of an administrative law

judge to conduct a formal hearing.

At the hearing, Petitioner presented the testimony of one

witness, Hector Cordero, and testified on her own behalf.

Petitioner offered no exhibits at hearing, but the record was

left open until October 30, 2006, to allow Petitioner to late -

file exhibits. 5 However, as of the date of this Recommended

Order, Petitioner had not filed any exhibits. The Commission

presented no witnesses and had one composite exhibit ad mitted

into evidence. By agreement of the parties, proposed

recommended orders were to be filed on November 9, 2006.

The proceeding was recorded but was not transcribed.

As of the date of this Recommended Order, Petitioner had

not filed a proposed recomm ended order. The Commission timely

filed its Proposed Recommended Order, which has been considered

in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was born on October 2, 1969.

2. On or about November 30, 2005, Petitioner applied to

the Commission for a real estate sales associate license.

3. Question No. 1 was one of four questions on the

application that asked the applicant to provide background

information about himself/herself. Question No. 1 provided in

pertinent part the following:

Have you ever been convicted of a crime,

found guilty, or entered a plea of guilty or

nolo contendre (no contest) to, even if you

received a withhold of adjudication? This

question applies to any violation of the

laws of any municipality, count y, state or

nation, including felony, misdemeanor and

traffic offenses (but not parking, speeding,

inspection, or traffic signal violations),

without regard to whether you were placed on

probation, had adjudication withheld, were

paroled, or pardoned. . . .

4. The application directed applicants, who responded

"yes" to Question No. 1, to provide details regarding "any

criminal conviction, . . . including the nature of the charges,

dates, outcomes, sentences, and/or conditions imposed."

5. Petitioner answ ered Question No. 1 in the affirmative.

In accordance with the directions on the application, Petitioner

provided the details related to all the criminal matters with

which she had been charged and/or convicted and the ultimate

disposition or action taken as a result thereof.

6. Petitioner was forthright and honest in disclosing the

background information that was requested. In all, Petitioner

listed ten separate offenses on a form that was submitted as

part of her application packet. For each offense, Petitioner

was required to and did provide the type and description of the

offense; the date and place (county and state) the offense

occurred; and the penalty imposed and/or the disposition of the

matter. Finally, in accordance with the directions on the

application, Petitioner indicated whether all sanctions had been

satisfied, with respect to each offense.

7. Petitioner listed a "disorderly conduct" offense which

occurred on November 26, 1988, in Hillsborough County, Florida.

This incident involved an altercation with a family member (her

mother) and resulted in the police being called. As a result of

this incident, Petitioner received counseling and adjudication

was withheld. At the time of this incident, Petitioner was

19 years old.

8. Petitione r listed an offense related to passing six

worthless checks. At the time of this offense, Petitioner was

24 years old. This offense occurred in Hillsborough County,

Florida , on October 22, 1993. As a result of this offense,

Petitioner was put on six mon ths ' probation. Petitioner paid

the checks and the required fines and also successfully

completed probation. Adjudication was withheld in the case.

9. According to Petitioner, the worthless check charge was

the result of her allowing her brother to rent a car, using

Petitioner's debit/checking card. When Petitioner's brother

kept the rental car longer than he had agreed to, the rental

company assigned the additional charges to her debit card. At

the time this occurred, Petitioner was unaware that her b rother

had kept the rental car for an extended time and that the

additional rental car charges were debited from her checking

account, thereby reducing her checking account balance. As a

result, there was no money in her account to pay for several

(presum ably six) checks that Petitioner had written on that

debit/checking account.

10. Between June 1994 and April 1996, Petitioner was

involved in four offenses involving theft. Three of the four

offenses involved petty theft and one involved grand theft.

Pe titioner described these four "theft" offenses on her

application as set forth in paragraphs 11 through 14.

11. On December 9, 1994, Petitioner was charged with grand

theft and resisting a merchant. The incident which led to this

charge occurred in Mario n County, Florida. In describing the

incident which resulted in the grand theft charge, Petitioner

stated that she was with two people who were shoplifting and one

of those people gave her the merchandise (clothes) to take to

the vehicle. As to the incid ent which led to the resisting

merchant charge, Petitioner stated that as she was "exiting the

door, a man came behind me and grabbed me by the neck without

[identifying] himself." In response to this action, Petitioner

stated that she "snatched away" fro m the man. As a result of

the foregoing offenses, Petitioner was placed on three (3) years

probation. Adjudication was withheld upon Petitioner's

successful completing probation.

12. On March 29, 1995, Petitioner was charged with petty

theft as a result of her "shoplifting a watch that was $12.99. "

Petitioner was convicted of this offense and placed on six

months ' probation. Petitioner completed her probation and paid

all applicable fines.

13. On May 19, 1995, in Hillsborough County, Petitioner

was ch arged with petty theft. According to Petitioner, she was

pulled over for a traffic violation and after the law

enforcement officer(s) ran a check of the tag, it was determined

that the tag had been reported as stolen. Petitioner indicated

that she was un aware that the tag was stolen. Petitioner was

found guilty of petty theft for this incident and was put on

probation for one year. Petitioner satisfied all sanctions

imposed for this conviction.

14. On April 26, 1996, Petitioner was charged with and

con victed of petty theft, in Hillsborough County, Florida. This

offense was the result of Petitioner's "shoplifting [a] tool

[worth] less than $10.00." As a result of her conviction of

this petty theft charge, Petitioner was put on probation for one

year. Petitioner completed the probationary period.

15. Petitioner was charged on two separate occasions with

violation of probation. Both of these charges relate to

Petitioner's probation as a result of the grand theft and

resisting merchant conviction discus sed in paragraph 11 above.

16. The first charge of violating probation occurred on

June 6, 1995, in Alachua County, Florida , when Petitioner went

to court on the petty theft charge, based on the March 1995

shoplifting incident in that county. When Petiti oner appeared

in court for that petty theft charge, a warrant was issued for a

probation violation in connection with the grand theft

conviction in Marion County. As a result of the probation

violation, Petitioner's probation in Marion County was

reinstat ed and Petitioner attended counseling for six weeks.

Adjudication was withheld in this probation violation case.

17. On December 5, 1997, Petitioner was, for the second

time, charged with violating her probation. Based on

Petitioner's explanation, this violation of parole was related

to Petitioner's changing her address and about "new [criminal]

charges. " 6 As a result of this probation violation, her

probation was reinstated until the required fee was paid.

Apparently, the fee was paid, and thereafter, Petitioner's

probation was terminated in June 1998.

18. During the period of time between 1994 and 1996,

Petitioner was charged, on two separate occasions, with driving

with a suspended license. Petitioner was first charged with

driving with a suspended license on June 6, 1994, in Alachua

County, Florida, after she was pulled over for a traffic

violation. For this offense, Petitioner was placed on six - month

non - reporting court probation. All sanctions were satisfied and

adjudication was withheld.

19. On August 31, 1996, in Hillsborough County, Florida,

Petitioner was, again, charged with driving with driving with a

suspended license. In this case, Petitioner paid outstanding

tickets and adjudication wa s withheld.

20. Petitioner appears remorseful abo ut the criminal

activities in which she engaged. She testified that the time

period in which most of the criminal activities occurred was a

difficult time in her life, having recently experienced the

death of two close relatives (her father and grandmothe r) and a

close friend. According to Petitioner, this was a traumatic

time in her life and the events (the deaths of three people with

whom she had close relationships) that occurred near that time

affected her behavior. Petitioner explained that soon

the reafter, she moved to Gainesville, where she had previously

attended college, and got involved with the "wrong" crowd.

21. It is undisputed that Petitioner has not been charged

with a criminal offense for over nine years. Furthermore, there

is no evide nce that Petitioner has been involved in any criminal

activity since completing her probation in June 1998.

22. Since 1996, Petitioner has worked on a regular basis

and held positions of responsibility. From 1996 through 1998,

Petitioner worked in a six - doctor office as an office clerk. In

that position, she posted payments and assisted in collections.

In 1998 through 1999, Petitioner worked for a cars sales company

and was the lead collection person for the dealership. In 2000,

Petitioner returned to the six - doctor office, where she had

previously been employed. This time, Petitioner worked in the

collections area and was also the internal computer person for

the office. After leaving the six - doctor office, Petitioner

went to work for a collection ag ency as a free agent. In

addition to the foregoing positions, Petitioner has worked in

marketing, where she increased her client base from six (6) to

seventy - one (71). At the time of the hearing, Petitioner was

self - employed in business aimed at assistin g customers with

"credit repair."

23. In about 1998, Petitioner joined a church in Tampa.

Petitioner is still an active member of that church and is

involved in several church activities. Currently, Petitioner is

in the church choir and is secretary of the young adult women

mission circle.

24. Petitioner is a volunteer in various community service

activities. Currently, Petitioner is a volunteer coach for a

youth basketball team at the Boys and Girls Club. Petitioner

also serves as a mentor to childre n.

25. Hector Cordero, a member of the same church as

Petitioner, and a personal friend of Petitioner 7 testified on

Petitioner's behalf and vouched for her honesty and integrity.

26. Petitioner's testimony regarding her past criminal

offenses, her employ ment history, and her community service

activities is found to be cr edible.

27. Notwithstanding the credible testimony of Petitioner,

she has failed to comply with a directive of the Commission. In

a letter advising Petitioner of the meeting at which her

application would be considered, the Commission directed

Petitioner to furnish at least three letters from persons who

know of her honesty, truthfulness, trustworthiness, good

character and good reputation, two of which must be from

individuals not relate d to her. The letter explicitly stated

the letters of recommendation would assist the Commission in

determining her eligibility for licensure. As of the date of

this hearing, there is no evidence that Petitioner ever provided

the requested letters of rec ommendation.

28. At this proceeding, Petitioner was given the

opportunity to provide letters of recommendation. Such letters

could have been from previous employers , community organizations

and others with whom she had worked, who know of and could vouch

for Petitioner's honesty, truthfulness, trustworthiness, good

character and good reputation. Also, these letters of

recommendations could verify and support Petitioner's employment

history and community service activities for the past nine or

ten years a nd thereby show rehabilitation. Although the record

in this case was left open to provide Petitioner an opportunity

to late - file letters of recommendation for consideration, she

failed to provide any such letters or documentation.

29. In view of the fact that Petitioner's criminal history

spanned nine years, it was important that she provide evidence

that established that she met the eligibility requirements for

the licensure as noted in Subsection 475.17(1), Florida

Statutes. Also, in light of her crimi nal background, Petitioner

should have provided evidence to demonstrate that she is now

rehabilitated and will pose no threat to the public and

investors.

30. The evidence presented by Petitioner in this case is

insufficient to demonstrate that she meets the eligibility

requirements for licensure as a real estate sales associate and

that she is rehabilitated.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 1 20.569 and 120.57(1), Fla . Stat . 2006 .

32. The Commission is authorized to certify for licensure

as a real estate salesperson, any applicant who satisfies the

requirements of Section 475.17, Florida Statutes, and other

applicable statutory provisions. Se e § 475.181, Fla . Stat.

33. Petitioner has the burden of proving by a preponderance

of the evidence that she qualifies for the licensure she seeks.

Florida Department of Transportation v. J.W.C ., Co. , 396 So. 2d

778 (Fla. 1st DCA 1981) , and Subsection 12 0.57(1)(j), Florida

Statutes.

34. S ubse ction 475.17(1) ( a), Florida Statutes, pertains to

the licensure of real estate professionals in the State of

Florida, and provides in pertinent part the following:

(1)(a) An applicant for licensure who is a

natural person must be . . . honest,

truthful, trustworthy, and of good moral

character; and have a good reputation for

fair dealing. An applicant for an active

broker's license or s ales associate's license

must be competent and qualified to make real

estate tran sactions and conduct negotiations

therefor with safety to investors and to

those with whom t he applicant may undertake a

relationship of trust and confidence. . . .

[I]f the applicant has been guilty of conduct

or practices in this state or elsewhere which

would have been grounds for revoking or

suspending her or his license under this

chapter had the applicant then been

registered, the applicant shall be deemed not

to be qualified unless, because of a lapse of

time and subsequent good conduct and

reputatio n, or other reason deemed

sufficient, it appears to the commission that

the interest of the public and investors will

not likely be endangered by the granting of

the registration.

35. S ubs ection 475.17(1), Florida Statutes, authorizes the

Commission to d eny an application for licensure, and to suspend,

revoke, or otherwise discipline a real estate broker's or

salesperson's license for the grounds set forth therein.

36. The Commission determined that Petitioner's application

should be denied based on the following provisions of Subsection

475.25(1), Florida Statutes:

(1) The [C]omission may deny an application

for licensure . . . if it finds that the

. . . applicant:

* * *

(b) Has been guilty of fraud,

misrepresentation, concealment, false

promise s, false pretenses, dishonest dealing

by trick, scheme, or device, culpable

negligence, or breach of trust in any

business transaction in this or any other

state, nation, or territory; has violated a

duty imposed upon her or him by law or by the

terms of a listing contract. . . .

* * *

(f) Has been convicted or found guilty of,

or entered a plea of nolo contendre to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

activities of a licensed broker or sales

assoc iate, or involves moral turpitude or

fraudulent or dishonest dealing. . . .

* * *

(o) Has been found guilty, for a second

time, of any misconduct that warrants her or

his suspension or has been found guilty of a

course of conduct or practices which show

that she or he is so incompetent, negligent,

dishonest, or untruthful that the money,

property, transactions, and rights of

investors, or those with whom she or he may

sustain a confidential relation, may not

safely be entrusted to her or him.

37. According to S ubs ection 475.17(1), Florida Statutes, an

applicant for licensure must be honest, truthful, trustworthy,

and of good character and have a good reputation for fair

dealing. Furthermore, when an applicant has committed an act or

offense which would be grounds for disciplining his license if he

or she had been registered, there must be a lapse of time and

subsequent good conduct and reputation, or other good reason

deemed sufficient in order to be eligible for licensure.

38. Pursuant to the ter ms of Subsection 475.25(1)(f),

Florida Statutes, quoted above, the Commission may deny a

person's application for licensure if the applicant has been

convicted of or pled guilty or nolo contendre , regardless of

whether adjudication was withheld, to a crime involving moral

turpitude.

39. The evidence is undisputed and Petitioner acknowledged

that she was convicted of crimes that involve moral turpitude

( i.e. petty theft and grand theft). Based on this admission and

undisputed evidence, the Commission appro priately determined that

Petitioner was not qualified for licensure as a real estate sales

agent.

40. Given that Petitioner is guilty of conduct in

Subsection 475.25(1)(f), Florida Statutes, and described in

paragraph 39, Petitioner must show she is quali fied to be

licensed as a real estate sales associate. To prove that she is

qualified, Petitioner must demonstrate that "because of lapse of

time and subsequent good conduct and reputation, or other reason

deemed sufficient," that the interest of the publi c and investors

will not likely be endangered by granting the license.

See § 475.17(1)(a), Fla . Stat .

41. To meet his burden, Petitioner must offer more than her

own statements and those of her personal friend attesting to her

good conduct over the past n ine years. Such statements are

insufficient to meet the required burden of proof. Rather,

Petitioner must present evidence from individuals who know of her

honesty, truthfulness, trustworthiness, good character and good

reputation, subsequent to the time she was convicted of crimes

involving moral turpitude.

42. In Antel v. Department of Professional Regulation,

Florida Real Estate Commission , 522 So. 2d 1056 (Fla. 5th DCA

1988), Antel applied for a real estate license shortly after

being released from pr ison. The application was denied because

the crime for which Antel was convicted involved moral turpitude ,

and the hearing officer found that there was insufficient

evidence of the applicant's rehabilitation. In affirming the

Commission's denial, the cou rt found that the applicant

"presented nothing more than the facts of the crime itself, and a

scant employment history since her release on parole - - barely more

than a year prior to the hearing." Id. at 1057. The court held

that:

In view of the short time period since

Antel's release from prison, and the scant

record presented at hearing, we cannot find

that the Commission erred in finding Antel

failed to establish her rehabilitation and

right to be licensed. Id. at 1058.

43. In the instant case, the un disputed evidence is that a

substantial amount of time has passed, more than nine years,

since Petitioner was charged with a criminal offense. However,

considering the number of charges and convictions that Petitioner

had over a period that spanned severa l years, the record in this

case is scant as to evidence or testimony of Petitioner's

subsequent good conduct and reputation. Except for Petitioner's

own testimony and that of her friend, there is no evidence in the

record regarding Petitioner's employmen t record or other

activities subsequent to her criminal convictions and completion

of her probation.

44. The evidence presented by Petitioner was insufficient

to show that she is honest, truthful, trustworthy, of good

character, or that she has a good rep utation for fair dealing.

Therefore, Petitioner failed to demonstrate that she meets the

qualifications for licensure established in S ubs ection

475.17(1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing Find ings of Fact and Conclusions of

Law, it is

RECOMMENDED :

T hat the Florida Real Estate Commission enter a final order

denying Petitioner's application for licensure as a real estate

salesperson.

DONE AND ENTERED this 9 th day of January, 2007 , in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 9 th day of January, 2007 .

ENDNOTES

1 / Based on a letter from Petitioner dated June 5, 2006,

Petitioner did not attend the April 18, 2006 meeting because of

a misunderstanding as to the date of the meeting.

2 / Despite this finding by the Commission, there is nothing in

the record to indicate that Petitioner attended the April 18,

2006, Commission meeting at which the decision on her

application was made or that any evidence wa s presented on

Petitioner's behalf at that meeting.

3 / All references to Florida Statutes are to Florida Statutes

(2005), unless otherwise indicated.

4/ As a result of the findings, the Commission concluded that

Petitioner's conduct was a basis for sus pending or revoking a

real estate license, and, thus, a basis for denying her

licensure, pursuant to Subsection 475.25(1), Florida Statutes.

Specifically, the Commission alleged that Petitioner was (1)

guilty of fraud, misrepresentation, concealment, fals e promises,

false pretenses, dishonest dealing by trick, scheme, or device,

culpable negligence or breach of trust (Subsection 475.25(1)(b),

Florida Statutes); (2) was convicted or found guilty or entered

a plea of nolo contendre to, regardless of adjudica tion, a crime

which directly relates to activities of a licensed broker or

sales associate or involves moral turpitude or fraudulent or

dishonest dealing (Subsection 475.25(1)(f), Florida Statutes);

and (3) has been found guilty of a course of conduct or

p ractices which would show that Petitioner is so incompetent,

negligent, or dishonest that money, property and rights of

others may not safely be entrusted to applicant (Subsection

475.25(1)(o), Florida Statutes). In connection with

Petitioner' s criminal r ecord, the Commission concluded that

Petitioner had not had sufficient lapse of time, without

government supervision, to establish rehabilitation.

Finally, the Commission concluded that it would be a breach

of its duty to protect the health, safety and wel fare of the

public to license Petitioner, and thereby, provide her with easy

access to the homes, families or personal belongings of the

citizens of Florida (Subsection 455.201, Florida Statutes).

5/ The exhibits which Petitioner was to late - file related to

her employment history.

6/ According to Petitioner, her former probation officer had

approved her moving to another location, but apparently the

probation officer to whom she was later assigned did not approve

or know about the change. Petitioner al so indicated that her

former probation officer knew about the new charges, but did not

issue a violation. However, Petitioner states that when the new

probation officer came on board, he issued a probation violation

and required her to appear in court.

7 / According to Mr. Cordero, he and Petitioner have dated for

the last three - to - four years.

COPIES FURNISHED :

Sonia L. Taylor

802 West West Street

Tampa, Florida 33602

Claudel Pressa, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulatio n

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Nancy B. Hogan, Chairman

Real Estate Commission

Department of Business and

Professional Regulation

400 W est Robinson Street, Suite 801N

Orlando, Florida 32801

NOTICE OF RIGH T 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.