07-004522 Jeffrey C. Barnes vs. Florida Real Estate Commission Status: Closed Recommended Order on Wednesday, January 30, 2008.

Summary: Petitioner`s lack of credible evidence of rehabilitation lends to recommendation that licensure as a real estate broker be denied at the present time.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY BARNES, ) )

)

Petitioner, )

) Case No. 07-4522

vs. )

)

FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings conducted a final hearing in this case

on December 11, 2007, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jeffrey C. Barnes, pro se

133 Adler Drive

Libertyville, Illinois 60048

For Respondent: Garnett Chisenhall

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 the Petitioner’s

application for licensure as a real estate broker should be

approved or denied.

PRELIMINARY STATEMENT

On August 8, 2007, the Florida Real Estate Commission (the

Commission) rendered a “Notice of Intent to Deny” informing the

Petitioner of the Commission’s preliminary decision to deny his

application for licensure as a real estate broker. Via the

Notice of Intent to Deny, the Commission also advised the

Petitioner of his right to challenge the Commission’s proposed

action through an administrative hearing. On September 4, 2007,

the Petitioner filed a hearing request with the Commission, and

the matter was referred to the Division of Administrative

Hearings (DOAH) for a formal administrative hearing.

During the final hearing in this matter, the Petitioner

testified on his own behalf and called the following witnesses:

Ms. Janet Victoria, Pastor Christopher Barnes, and Reverend J.D.

Millar. The Petitioner also offered into evidence an audio

recording from the Commission’s July 18, 2007, meeting in

Orlando, Florida, and it was accepted into evidence without

objection. 1/ The Commission did not call any witnesses, but it

offered a composite exhibit which was accepted into evidence

without objection. That composite exhibit consisted of Chapter

475, Part I, Florida Statutes (2007), and a copy of the

Respondent’s application file maintained by the Division of Real

Estate.

A transcript of the proceeding was filed with DOAH on

December 19, 2007. The parties requested and were granted leave

to file proposed recommended orders more than 10 days following

the filing of the transcript. Proposed recommended orders were

submitted by the parties and both proposals have been considered

and utilized in preparing this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Jeffrey C. Barnes, is a 60-year-old

male who maintains a residence in Illinois and is currently a

licensed realtor in Illinois and Wisconsin.

2. On April 9, 2007, the Department of Business and

Professional Regulation received the Petitioner’s application to

become a licensed real estate broker in Florida.

3. The Petitioner responded affirmatively to a question on

the application form which asked, “Have you ever been convicted

of a crime, found guilty, or entered a plea of guilty or nolo

contendere (no contest) . . ., even if you received a withhold

of adjudication?”

4. The Petitioner’s reported criminal history began with

an incident on November 19, 1985, when the Illinois police

stopped him for driving 53 M.P.H. in a 40 M.P.H. zone. Upon

discovering that the Petitioner was driving with a suspended

license, the police arrested him and found a small glass bottle

containing cocaine on his person. The police also found 23

individually-wrapped packets of cocaine in the Petitioner’s

vehicle. Because of this incident, the Illinois authorities

charged the Petitioner with unlawfully possessing a controlled

substance with the intent to deliver more than 30 grams.

5. On February 18, 1986, an Illinois police officer

witnessed the Petitioner driving erratically and pulled his car

over. While asking for the Petitioner’s license, the officer

detected a strong odor of alcohol coming from the car. Upon

looking into the car, the officer saw a bottle containing

cocaine hanging from one of the Petitioner’s pockets. During a

subsequent search of the Petitioner and his car, the police

discovered drug paraphernalia and more cocaine. The police also

administered a sobriety test which the Petitioner failed.

6. The Petitioner was 38 years old during the incidents

described above.

7. Ultimately, the Petitioner was convicted on two counts

of manufacturing and delivering a controlled substance, one

count of possessing cannabis , and one count of possessing a

controlled substance (i.e., cocaine). The Petitioner was

released in 1990 after serving four years in prison.

8. The Commission considered the Petitioner’s licensure

application on July 18, 2007 during a regularly-scheduled

meeting in Orlando, Florida. The Petitioner was present, but he

was not represented by an attorney.

9. During the aforementioned meeting, the Commission made

the following findings of fact: (a) “[a]pplicant’s criminal

record is as revealed in [his] application; (b) “[a]pplicant’s

testimony or evidence in explanation/mitigation was

unpersuasive;” and (c) “[a]pplicant’s criminal history is recent

in time.” 2/

10. Based on the findings of fact described above, the

Commission concluded the Petitioner had “engaged in conduct or

practices which would have been grounds for revoking or

suspending a real estate license.” The Commission also

concluded the Petitioner had been “[c]onvicted or found guilty

or entered a plea of nolo contendere to, . . . a crime which

directly relates to activities of a licensed broker or sales

associate or involves moral turpitude or fraudulent or dishonest

dealing.”

11. Ultimately, the Commission elected to deny the

Petitioner’s application by concluding “it would be a breach of

its duty to protect the health, safety and welfare of the public

to license this applicant and thereby provide him easy access to

the homes, families or personal belongings of the citizens of

Florida.”

12. The Commission’s decision was memorialized in a

“Notice of Intent to Deny” rendered on August 8, 2007.

13. The Petitioner responded by filing a petition

disputing the facts on which the Commission’s decision was

based. Specifically, due to the lapse of time since his

convictions and subsequent good conduct, the Petitioner asserted

he satisfied the criteria for licensure set forth in Section

475.17(1)(a), Florida Statutes.

14. During the December 11, 2007 formal hearing, the

Petitioner testified on his own behalf and described how he has

worked in the information technology field for over 35 years.

In addition, the Petitioner described his charitable and civic

activities in considerable detail.

15. The Petitioner attributed his convictions to a serious

cocaine addiction. While incarcerated, he participated in

substance abuse programs and describes his time in prison as a

blessing. The Petitioner testified that he has had no further

involvement with illegal drugs since his release from prison.

16. During his testimony at hearing, the Petitioner

revealed that he had sold 3.5 grams of cocaine to a friend in

the presence of an undercover police officer, a crime not

disclosed to the Commission in his licensure application. The

Petitioner was not specific about when this crime occurred, but

he believed that he was 25 or 30 years old at the time. While

it is uncertain whether the Petitioner’s sale of cocaine

actually resulted in a conviction which had to be expressly

disclosed to the Commission in his licensure application, his

claim that this crime was fully disclosed casts doubt on his

credibility.

17. In addition to his own testimony, the Petitioner

offered the testimony of his brother, Pastor Christopher Barnes.

When asked about the Petitioner’s character, Pastor Barnes

expressed his opinion that the Petitioner’s arrest and

convictions were responsible for the turn-around in the

Petitioner’s life and present day exemplary good character.

18. The Petitioner also offered the testimony of his wife,

Ms. Janet Victoria. They met in late 1991 or early 1992 and

have been married since 1997. Ms. Victoria works as a real

estate broker in Illinois, and the Petitioner began working for

her in 2004.

19. Reverend James Dean Millar also testified on the

Petitioner’s behalf that he and the Petitioner met in 2003, that

the Petitioner has been involved in charitable endeavors and

that the Petitioner regularly attends church services.

20. All of the Petitioner’s witnesses responded

affirmatively when asked if they knew the Petitioner to be

honest, truthful, trustworthy, and a person of good character.

They also responded affirmatively when asked if they knew

whether the Petitioner had a good reputation for fair dealing.

However, their statements were more in the nature of

conclusions, lacking any specific detail to support their

opinions. No specific instances were related where the

Petitioner demonstrated honesty, morality, or ethical behavior.

Also, none of the witnesses can be considered “disinterested.”

21. The testimony and evidence indicated the Petitioner is

accomplished in the fields of information technology and real

estate sales.

CONCLUSIONS OF LAW

22. DOAH has jurisdiction over the subject matter of this

proceeding and over the parties hereto pursuant to Chapter 120,

Florida Statutes.

23. The Commission consists of seven members who act in a

quasi-judicial capacity. Those seven members are responsible

for regulating real estate brokers, salespersons, and real

estate schools. See §§ 475.001, 475.02, Fla. Stat. (2007).

24. The Department of Business and Professional Regulation

licenses any applicant whom the Commission certifies as being

“qualified to practice as a broker or sales associate.” §

475.181(1), Fla. Stat. (2007).

25. A professional license is not a right, but a privilege

granted by the State. Borrego v. AHCA , 675 So. 2d 666, 668

(Fla. 1st DCA 1996).

26. The Commission’s judgment regarding who is qualified

to hold a real estate broker’s license in Florida is entitled

to a considerable degree of deference. See Autry v. Fla. Real

Estate Comm’n , DOAH Case No. 07-0587 (Recommended Order issued

July 8, 2007, adopted by Final Order issued July 10, 2007)

where the Administrative Law Judge concluded that licensing

agencies such as the Commission have broad latitude in

determining the fitness of applicants for licensure; Dep’t of

Bus. & Prof’l Regulation v. Martin County Liquors Inc. , 574 So.

2d 170, 175 (Fla. 1st DCA 1991)(holding “[a]gencies have broad

discretionary authority to issue licenses especially when the

operation of that license is deemed a privilege rather than a

right, as in liquor licenses”); Astral Liquors, Inc. v. Dep’t

of Bus. & Prof’l Regulation , 463 So. 2d 1130, 1132 (Fla.

1985)(noting that “[d]iscretionary authority is necessary for

agencies involved in the issuance of licenses and the

determination of fitness of applicants for licenses” and that

“[t]his discretionary authority is particularly necessary where

an agency regulates ‘occupations which are practiced by

privilege rather than by right and which are potentially

injurious to the public welfare.’ Solimena , 402 So. 2d at

1246.”).

27. Deference to the Commission’s judgment is particularly

important in the instant case because the Petitioner is seeking

a broker’s license rather than a sales associate’s license.

Accordingly, if the Petitioner were to be licensed, he would

not be subject to supervision. See § 475.01(1)(j), Fla. Stat.

(2007) (defining the term “sales associate” to mean “a person

who performs any act specified in the definition of ‘broker,’

but who performs such act under the direction, control, or

management of another person.”).

28. With regard to determining who is qualified to

practice as a broker or sales associate, Section 475.25(1)(f),

Florida Statutes (2007), provides in pertinent part that the

Commission may deny an application for licensure if it finds

that the applicant “[h]as been convicted or found guilty of, or

entered a plea of nolo contendere to, regardless of

adjudication, a crime in any jurisdiction which directly

relates to the activities of a licensed broker or sales

associate , or involves moral turpitude or fraudulent or

dishonest dealing.” (emphasis added)

29. In addition, Section 475.17(1)(a), Florida Statutes

(2007), provides in pertinent part that:

if 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 lapse of time and subsequent good

conduct and reputation, 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

registration.

(emphasis added)

30. The Petitioner was convicted on two counts of

manufacturing and delivering cocaine, and such an offense is a

crime of moral turpitude. 3/

31. Such crimes would have been grounds for revoking or

suspending a license if the Petitioner had been licensed at the

time he committed the offenses. See § 475.25(1)(f), Fla. Stat.

(2007).

32. Therefore, in order to avoid a determination that he

does not satisfy the criteria for licensure as a real estate

broker set forth in Section 475.17(1)(a), Florida Statutes

(2007), and that his application for licensure should not be

denied pursuant to Section 475.25(1)(f), Florida Statutes

(2007), it was the Petitioner’s burden to establish by a

preponderance of the evidence that, “because of lapse of time

and subsequent good conduct and reputation, or other reason

deemed sufficient, . . . the interest of the public and

investors will not likely be endangered” by granting his

application. See Osborne Stern & Co. , 670 So. 2d at 934

(noting “[t]he general rule is that a party asserting the

affirmative of an issue has the burden of presenting evidence

as to that issue.”).

33. The convictions disclosed on the Petitioner’s

licensure application resulted from arrests which occurred on

November 19, 1985 and February 18, 1986. Given the amount of

time that has passed since those arrests, however, one could

conclude there has been a sufficient “lapse of time.” Notably,

Section 475.17(1)(a), Florida Statutes (2007), requires that

the Petitioner also demonstrate through “subsequent good

conduct and reputation, or other reason deemed sufficient, . .

.[that] the interest of the public and investors will not

likely be endangered” by granting his application. See

Strockbine v. Dep’t of Bus. & Prof’l Regulation , DOAH Case

No. 05-1138 (Recommended Order issued June 29, 2005; adopted by

Final Order issued April 27, 2006, noting that passage of time

notwithstanding, “[s]ection 475.17(1)(a), Florida Statutes,

however, requires both the passage of time and subsequent good

conduct and reputation. Viewing both prongs of the test leads

one to conclude that Petitioner has satisfied neither.”)

34. There is no need to assess whether there has been a

sufficient “lapse of time” since the Petitioner committed his

offenses. As explained below, the Findings of Fact set forth

above lead the undersigned to conclude that the Petitioner has

failed to carry his burden of proof on the second prong of

Section 475.17(1)(a), Florida Statutes (2007). See generally

Lillquist v. Dep’t of Bus. & Prof’l Regulation, Fla. Real

Estate Comm’n , DOAH Case no. 86-2902, (Recommended Order issued

January 14, 1987, adopted by Final Order issued February 20,

1987, explaining “[i]t is not found or concluded that

Petitioner is not honest, truthful, trustworthy, of good

character and of good reputation for fair dealing, or that it

is likely that the interest of the public and investors will be

endangered if Petitioner’s application is granted. It is

simply concluded that Petitioner has not presented sufficient

proof to establish that the contrary is true at this time.”).

35. The Petitioner was 38 years old at the time of his

arrests. Therefore, his crimes cannot be attributed to

youthful indiscretion. See Autry , supra (finding the

“Petitioner’s criminal offenses were not acts of youthful

indiscretion or the result of momentary lapses of judgment.

All of the offenses, except for the first DUI, were committed

when Petitioner was in his 30’s and working in a professional

capacity.”).

36. Additionally, the Petitioner’s admissions at the final

hearing established his commission of another crime that was

not disclosed to the Commission in his licensure application.

Specifically, the Petitioner revealed that he had sold 3.5

grams of cocaine to a friend in the presence of an undercover

police officer.

37. While it is uncertain whether that crime actually

resulted in a conviction which had to be explicitly disclosed

to the Commission in the licensure application, the

Petitioner’s lack of candor regarding the non-disclosure casts

doubt on his credibility. See generally Nutting v. Fla. Real

Estate Comm’n , DOAH Case No. 05-4510 (Recommended Order issued

April 18 2006, adopted by Final Order issued July 27, 2006,

finding the “Petitioner’s evasiveness and lack of candor

demonstrate his failure to acknowledge and take responsibility

for his past actions. Petitioner’s rehabilitation will not be

complete before that happens.”).

38. In order to bolster his own testimony regarding the

second prong of Section 475.17(1)(a), Florida Statutes (2007),

the Petitioner offered the testimony of his brother (Pastor

Christopher Barnes), his wife (Ms. Janet Victoria), and a

friend (Reverend James Dean Millar). However, they were not

disinterested witnesses, and their testimony is insufficient to

support a finding of the Petitioner’s “subsequent good conduct

and reputation.” See generally Bettis v. Dep’t of Bus. &

Prof’l Regulation, Fla. Real Estate Comm’n , DOAH Case No.

82-453 (Recommended Order issued September 20, 1982, and

adopted by Final Order issued October 20, 1982, concluding

“[t]he evidence petitioner adduced consisted solely of his own

testimony and that of his wife. There was no testimony as to

his reputation either for fair dealing or otherwise.

Notwithstanding the apparently exemplary life petitioner has

led since prison, this testimony, uncorroborated by a single

disinterested witness , is legally insufficient to meet

Petitioner’s burden of proof.”); Taylor v. Dep’t of Bus. &

Prof’l Regulation, Fla. Real Estate Comm’n , DOAH Case No.

06-3036 (Recommended Order issued January 9, 2007, adopted by

Final Order issued March 22, 2007, concluding that in order to

satisfy the two-prong test of Section 475.17(1)(a), “Petitioner

must offer more than her own statements and those of her

personal friend attesting to her good conduct over the past

nine years. Such statements are insufficient to meet the

required burden of proof.”) (emphasis added).

39. Moreover, the conclusory nature of the witnesses’

testimony did not assist the Petitioner in satisfying his

burden of proof. See Baumgartner v. Dep’t of Bus. & Prof’l

Regulation, Fla. Real Estate Comm’n , DOAH Case no. 83-0802

(Recommended Order issued August 27, 1984, recommending denial

of the petitioner’s licensure application and concluding “[n]o

direct evidence was introduced to show that Petitioner is

honest, truthful, trustworthy or of good character, not even

the testimony of the Petitioner himself.”); Wozniak v. Fla.

Real Estate Comm’n , DOAH Case No. 88-0188, (Recommended Order

issued May 10, 1988, recommending denial of the petitioner’s

licensure application and concluding “[t]here is little

evidence of good conduct and honest reputation beyond the

conclusory and uncorroborated assertions of good character by

Petitioner.”) (emphasis added).

40. While the Petitioner and his witnesses testified at

about his participation in church and charitable activities,

such testimony does not satisfy the criteria of Section

475.17(1)(a), Florida Statutes (2007). See Doltie v. Dep’t of

Bus. & Prof’l Regulation, Div. of Real Estate , DOAH Case no.

02-0112 (Recommended Order issued May 23, 2002, finding that

“Petitioner’s testimony that he participates in church and

civic activities does not establish that Petitioner has

completed his rehabilitation. Nor are such activities, alone,

sufficient to establish his honesty, trustworthiness, good

character, or reputation for fair dealing.”).

41. Finally, the testimony and evidence indicates the

Petitioner is accomplished in the fields of information

technology and real estate sales. However, information on the

Petitioner’s success in his chosen fields of endeavor is also

insufficient to establish the Petitioner’s “subsequent good

conduct and reputation.” See generally Denicola v. Dep’t of

Bus. & Prof’l Regulation, Div. of Real Estate, DOAH Case

No. 03-3498 (Recommended Order issued on March 5, 2004,

adopted by Final Order dated June 10, 2004, finding that

“[s]ince Petitioner’s release six years ago, he has started

his own part-time computer web design company. Many of his

customers submitted letters of recommendation on his behalf.

These recommendations include stating what a fine webmaster

and computer specialist he is and stating that his clients

have trust and confidence in his computer skills and his

business decisions and advice. His wife also has expressed

confidence in him through her letter. They are starting a

family. Unfortunately, only one letter mentioned moral or

ethical considerations. None of the letters related specific

personal experiences with Petitioner’s honesty, morality, or

ethical behavior over the entire course of time that the

author had known Petitioner.”).

42. In sum, the evidence and testimony offered by the

Petitioner fails to establish by a preponderance of the

evidence that “because of lapse of time and subsequent good

conduct and reputation, or other reason deemed sufficient, . .

. the interest of the public and investors will not likely be

endangered” by granting his application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That a final order be entered denying the Petitioner’s

application for licensure as a real estate broker.

DONE AND ENTERED this 30th day of January, 2008, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of January, 2008.

ENDNOTES

1/ While the Commission considered and denied the Petitioner’s

licensure application during its July 18, 2007 meeting, the

audio recording from that meeting has little or no relevance to

the instant proceeding which is de novo in nature. See

Snodgrass v. Dep’t of Bus. & Prof’l Regulation, Div. of Real

Estate , DOAH Case no. 05-1111 (Recommended Order issued

September 30, 2005; Final Order issued February 21, 2006, noting

“[t]he hearing to prove entitlement is de novo in nature and is

not a review of the hearings previously conducted by the Florida

Real Estate Commission.”); Silverstein v. Fla. Real Estate

Comm’n , DOAH Case no. 06-1144 (Recommended Order issued June 26,

2006; Final Order issued August 21, 2006, noting the de novo

nature of the proceeding and that “the undersigned has a duty,

as a participant in the decision-making process, to make an

independent recommendation, based on the evidentiary record and

applicable law, regarding the form and substance of final agency

action in the cause.”).

2/ A document entitled “Key for Licensure Denials” is attached

to the Commission’s Notice of Intent to Deny. The “Key for

Licensure Denials” is intended to facilitate licensure

proceedings by setting forth findings of fact and conclusions of

law that could apply to any licensure applicant. At the

conclusion of a licensure proceeding, a Commission staff member

can simply “check-off” the findings of fact and conclusions of

law that were made by the Commission. The “Key for Licensure

Denials” associated with the instant case indicates the

Commission also found that the Petitioner: (a) “has operated as

though licensed while unlicensed;” and (b) has had other

licenses revoked or suspended. However, the Commission’s

attorney stated during the formal hearing in this matter that he

had listened to the audio recording from the Commission’s

July 18, 2007, meeting and ascertained there was nothing to

support those findings of fact. He surmised that a scrivener’s

error was responsible for the discrepancy between the “Key for

Licensure Denials” associated with the instant case and the

findings actually made by the Commission during its July 18,

2007 meeting.

The “Key for Licensure Denials” associated with the instant case

also cited Chapter 112 of the Florida Statutes and “failure to

establish restoration of civil rights” as additional

justification for denying the Petitioner’s licensure

application. However, in Scherer v. Dep’t of Bus. & Prof’l

Regulation , 919 So. 2d 662, 664 (Fla. 5th DCA 2006), the Fifth

District Court of Appeal held that Section 112.011(1)(b) of the

Florida Statutes “does not deny licensure to a felon whose civil

rights have not been restored.”

3/ In State ex rel. Tullidge v. Hollingsworth , 146 So. 660, 661

(Fla. 1933), the Florida Supreme Court described “moral

turpitude” as “the idea of inherent baseness or depravity in the

private social relations or duties owed by man to man or by man

to society. It has also been defined as anything done contrary

to justice, honesty, principle or good morals, though it often

involves the question of intent as when unintentionally

committed through error of judgment when wrong was not

contemplated.”

COPIES FURNISHED :

Garnett Chisenhall, Esquire

Office of the Attorney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399

Jeffrey C. Barnes

133 Adler Drive

Libertyville, Illinois 60048

Poul Hornsleth, Chairman

Real Estate Commission

Department of Business

and Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801

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.