07-000587 Nicholas Autry vs. Florida Real Estate Commission Status: Closed Recommended Order on Tuesday, May 8, 2007.

Summary: Petitioner`s application for a real estate sales associate license should be denied because not enough time has passed since his most recent criminal offenses.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICHOLAS AUTRY , )

)

Petitioner , )

)

vs. ) Case No. 07 - 0587

)

FLORIDA REAL ESTATE COMMISSION , )

)

Respondent . )

)

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on April 16,

2007, in Tampa, Florida.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A.

1020 Vernoa Street

Kissimmee, Flori da 34741

For Respondent: Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Petitioner’s application for a real

estate sales associate license should be granted.

PRELIMINARY STATEMENT

On January 3, 2007, the Florida Real Estate Commission

(Commission) advised Petitioner that his application for a real

estate sales associate license was denied. Petitioner timely

requested a formal hearing on the denial of his application, and

on February 2, 2007, the Commission referred the matter to the

Division of Administrative Hearings (DOAH) for the assignment of

an Administrative Law Judge (ALJ) to conduct the hearing

requested by Petitioner.

The fin al hearing was scheduled for and held on April 16,

2007. Petitioner testified at the hearing in his own behalf and

also presented the testimony of Karen Putney. The Commission

did not present any witnesses. The following exhibits were

received into evid ence: Joint Exhibit 1 and Petitioner’s

Exhibits 1 through 4. Official recognition was taken of Section

475.17, Florida Statutes (2006). 1

No Transcript of the final hearing was filed with DOAH.

The parties were given 10 days from the date of the hearing to

file proposed recommended orders (PROs). The Commission timely

filed a PRO on April 26, 2007, and Petitioner filed a PRO on

April 27, 2007. The PROs have been given due consideration.

FINDINGS OF FACT

1. Petitioner is 36 years old. He has a b achelo r’s degree

and a m aster’s degree in environmental science. He also has a

Juris Doctorate degree.

2. Petitioner was licensed to practice law in Illinois in

May 2002. His license was suspended in August 2006 by the

Illinois Supreme Court as a result of t he October 2005 criminal

offenses discussed below . See Findings 12 - 14 .

3. The suspension of Petitioner’s license to practice law

is for a period of 18 months and “until further order of the

Court.” Thus, the suspension runs through at least

February 200 8.

4. Petitioner is currently working part - time at a Barnes &

Nobles bookstore in Tampa. Before that, he worked as an

executive recruiter for several months.

5. Before coming to Florida, Petitioner worked as an

inspection and enforcement officer for th e United States

Environmental Protection Agency (EPA) in Illinois, and as an

attorney and manager for title insurance companies in Illinois

and Colorado.

6. Petitioner has been offered a sales associate job by

the Keller Williams real estate firm in the Tampa area. The

offer is contingent upon the approval of Petitioner’s license

application.

7. Petitioner has a long history of alcohol and substance

abuse, which he freely acknowledged in his testimony at the

final hearing. He has been using illegal su bstanc es since his

high - school years. 2

8. Petitioner has four criminal offenses in his

background, each of which involved alcohol.

9. In June 1991, Petitioner was arrested in Indiana for

driving under the influence (DUI). He pled guilty to the

offense and spent four days in jail. Petitioner was 20 years

old and in college at the time.

10. In February 2004, Petitioner was arrested in Colorado

for DUI with a blood - alcohol level of 0.17 percent, which was

more than twice the legal limit. He pled guilt y to the lesser

offense of “driving while ability impaired” and was sentenced to

probation and community service.

11. In July 2004, Petitioner was arrested again in

Colorado for DUI. He pled guilty and was sentenced to probation

and community service.

12. In October 2005, Petitioner was arrested at a concert

in Boca Raton for possession of cocaine, criminal mischief (two

counts), resisting arrest with violence, and battery of a law

enforcement officer (three counts). The offenses were felonies.

13. P etitioner testified that he does not recall any of

the circumstances surrounding the incident because he was

“extremely intoxicated” at the time. The police report of the

incident, which Petitioner does not dispute, 3 states that

Petitioner punched a patro n at the concert, punched a police

officer, kicked another police officer, spit on a paramedic,

damaged handcuffs and a police car, and was in possession of 0.5

grams of cocaine. The report also indicates that Petitioner was

yelling, cursing, and acting b elligerently throughout the

incident.

14. In January 2006, Petitioner pled no contest to the

charges, and adjudication was withheld by the court. He was

sentenced to 24 months of probation and 50 hours of community

service; he was required to undergo an anger management class;

and he was required to successfully complete a substance abuse

treatment program and undergo random drug testing.

15. Petitioner successfully completed his probation

without incident and without any positive drug tests.

16. An O rder formally terminating Petitioner's probation

was entered on March 15, 2007.

17. 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

c ommitted when Petitioner was in his 30’s and working in a

professional capacity.

18. Petitioner credibly testified that he has taken steps

to turn his life around. He is active in a church group in the

Tampa area, and he testified that he has not had a d rink of

alcohol or used illegal drugs since December 31, 2005.

19. Petitioner does not currently attend Alcoholics

Anonymous (AA) meetings, although he has done so in the past.

He testified that he continues to live by AA’s principles and

that he has a s upport system in place to help him remain

complete ly abstinen t from alcohol and drugs.

20. There is no evidence that Petitioner committed any

acts of fraud or dishonest dealing in connection with his work

with the EPA or the title insurance companies.

21. In October 2006, Petitioner applied for a real estate

sales associate license . He was still on probation at that

time.

22. Petitioner fully disclosed his criminal history and

the suspension of his license to practice law in Illinois in his

license appl ication.

23. Petitioner’s license application was considered by the

Commission at its meeting on December 13, 2006. Petitioner

appeared at the Commission meeting with his attorney and

responded to questions from members of the Commission.

24. The Commis sion voted at the meeting to deny

Petitioner’s license a pplication. The denial was memorialized

in a Notice of Intent to Deny dated January 3, 2007.

25. The grounds for denial listed in the Notice of Intent

to Deny included Petitioner’s criminal record, as revealed in

the license application; the recent nature of Petitioner’s

criminal offenses; the fact that Petitioner’s criminal history

“shows a pattern and practice of criminal behavior over an

extended period of time”; the fact that Petitioner “has not had

sufficient time free of government supervision to establish

rehabilitation”; and the suspension of Petitioner’s license to

practice law in Illinois.

CONCLUSIONS OF LAW

26. DOAH has jurisdiction over the parties to and subject

matter of this proceedin g pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

27. Licensing agencies such as the Commission have broad

latitude in determining the fitness of applicants for licensure.

See , e.g. , Astral Liquors, Inc. v. Dept. of Business Regulation ,

46 3 So. 2d 1130, 1132 (Fla. 1985).

28. Petitioner has the burden to prove by a preponderance

of the evidence that he satisfies the requirements for licensure

as a real estate sales associate. See Dept. of Banking &

Finance v. Osborne, Stern & Co. , 670 So. 2d 932, 934 (Fla.

1996); Dept. of Transportation v. J.W.C. Co., Inc. , 396 So. 2d

778, 787 (Fla. 1st DCA 1981).

29. Section 475.181, Florida Statutes, provides in

pertinent part:

(1) The department shall license any

applicant whom the commission certi fies,

pursuant to subsection (2), to be qualified

to practice as a . . . sales associate.

(2) The commission shall certify for

licensure any applicant who satisfies the

requirements of ss. 475.17, 475.175, and

475.180. . . . .

30. Section 475.17(1) (a), Florida Statutes, requires an

applicant for licensure as a real estate sales associate to be

“at least 18 years of age; hold a high school diploma or its

equivalent; be honest, truthful, trustworthy, and of good

character; and have a good reputation f or fair dealing.” The

statute further provides that an applicant is “deemed not to be

qualified” for licensure if:

the applicant's . . . license to practice or

conduct any regulated profession, business,

or vocation has been revoked or suspended,

by this or any other state . . . because of

any conduct or practices which would have

warranted a like result under this chapter,

or if the applicant has been guilty of

conduct or practices in this state or

elsewhere which would have been grounds for

revoking or s uspending her or his license

under this chapter had the applicant then

been registered . . . . (Emphasis

supplied).

31. Section 475.25(1)(f), Florida Statutes, authorizes the

Commission to deny an application for licensure if it finds that

the applicant has “been convicted or found guilty of, or entered

a plea of nolo contendere to, regardless of adjudication, a

crime in any jurisdiction which . . . involves moral turpitude

. . . .” An existing licensee can be disciplined for that

reason as well.

32. The Florida Supreme Court defined “moral turpitude” as

follows:

Moral turpitude involves 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 do ne 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.

State ex rel. Tullidge v. Hollingsworth , 146 So. 660, 6 61 (Fla.

1933) (citations omitted).

33. Not all crimes involve moral turpitude, and courts

have had difficulty in delineating which crimes involve moral

turpitude and which ones do not. See , e.g. , Milliken v. Dept.

of Business & Professional Reg. , 709 So . 2d 595, 59 7 (Fla. 5th

DCA 1998); Nelson v. Dept. of Business & Professional Reg. , 707

So. 2d 378, 379 - 80 (Fla. 5th DCA 1998) (Sharp, J., concurring

specially).

34. The “mere possession of a controlled substance” is not

a crime involving moral turpitude. See Pearl v. Florida Board

of Real Estate , 394 So. 2d 189, 192 (Fla. 3d DCA 1981). Thus,

Petitioner’s possession of cocaine offense is not a crime

involving moral turpitude.

35. In Department of Business and Professional Regulation

v. Starr , 1998 Fla. Div. Admin Hear. LEXIS 5645, at ¶ 25 (DOAH

Mar. 30, 1998), the ALJ concluded that DUI is not a crime

involving moral turpitude. 4 That conclusion is consistent with

appellate decisions in other states where the issue has been

specifically decided. See , e. g. , State v. Hall , 411 S.E. 2d

441, 442 (S.C. Ct. App. 1991) (citing cases). Thus,

Petitioner’s DUIs are not crimes involving moral turpitude.

36. In Nelson , supra , the court held that misdemeanor

battery and criminal mischief are not crimes involving mo ral

turpitude. The offenses in that case did not involve resisting

arrest with violence or battery of a law enforcement officer,

but rather involved setting off a “smoke bomb” in a government

office building as part of a “political protest.” Id. at 378.

37. Although there does not appear to be any Florida case

directly on point, courts in other states have held that

resisting arrest with violence and battery of a law enforcement

officer are crimes involving moral turpitude. See , e.g. , People

v. Lindsay , 209 Cal. App. 3d 849, 857 - 58 (Cal. Ct. App. 5th

Dist. 1989); Hall , 411 S.E. 2d at 443.

38. In Baurley v. Department of Professional Regulation ,

1989 Fla. Div. Adm. Hear. LEXIS 6468, at ¶ 18 (DOAH Apr. 29,

1989), the hearing officer concluded that the app licant’s

crimes, which included battery of a law enforcement officer,

were not crimes involving moral turpitude. The battery of a law

enforcement officer offense in that case “had its genesis in a

shoving match involving Mr. Baurley and someone who turned out

to be an off - duty police officer for a small municipality.” Id.

at ¶ 3.

39. The circumstances underlying Petitioner’s resisting

arrest with violence and battery of a law enforcement officer

offenses are more egregious and reprehensible than the co nduct

at issue in Baurley . Petitioner’s actions reflect a gross

deviation from the standard of conduct expected of a law - abiding

person and, as a result, it is concluded that Petitioner’s

resisting arrest with violence and battery of a law enforcement

off icer offenses involve moral turpitude.

40. Petitioner is “deemed not to be qualified” for

licensure by virtue of the suspension of his license to practice

law in Illinois. See § 475.17(1)(a), Fla. Stat. He is also

“deemed not to be qualified” for licens ure by virtue of his no

contest plea to the felony offenses of resisting arrest with

violence and battery of a law enforcement officer. Id. ;

§ 475.25(1)(f), Fla. Stat.

41. To overcome the statutory presumption that he is not

qualified for licensure, Peti tioner must show that “the interest

of the public and investors will not likely be endangered by the

granting of registration” because of “lapse of time and

subsequent good conduct and reputation, or other reason deemed

sufficient.” § 475.17(1)(a), Fla. S tat. See also State ex rel.

Corbett v. Churchwell , 215 So. 2d 302, 304 (Fla. 1968); Aquino

v. Dept. of Professional Reg . , 430 So. 2d 598, 599 - 600 (Fla. 4th

DCA 1983); Fisher v. Dept. of Business & Professional Reg. , DOAH

Case No. 05 - 2773, Final Order No. BPR - 2005 - 07077 (DOAH Nov. 22,

2005; FREC Dec. 21, 2005).

42. Petitioner failed to meet his burden of proof . T here

has not been a sufficient lapse of time since Petitioner’s most

recent criminal offenses in October 2005 ; it has been less than

two years si nce those offenses, and only two months since

Petitioner's probation for those offenses was terminated.

43. It is noteworthy that Petitioner has remained out of

trouble with the law since the October 2005 offenses; that he

has taken positive steps to turn his life around; and that he

appears to be sincere in his commitment to continue those

efforts. However, not enough time has passed since Petitioner’s

most recent criminal offenses to show that he has indeed

overcome his substance abuse problem so that h e will not

endanger the interest public or investors if he is licensed as a

real estate sales associate.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Commission enter a final order denying

Pet itioner’s application for a real estate sales associate

license .

DONE AND ENTERED this 8th day of May, 2007 , in Tallahassee,

Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrati ve 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 8th day of May, 20 07 .

ENDNOTES

1/ All statutory references in this Recommended Order are to

the 2006 version of the Florida Statutes.

2/ See Joint Exhibit 1, at 0060.

3/ See Joint Exhibit 1, at 0050 (Petitioner’s testimony during

the proceeding to suspend his license to practice law in

Illinois that he was “very drunk and under the influence of

other substances” at the concert and that he “read the police

report and . . . accept[s] all consequences for that behavior”).

4/ The ALJ in Starr recommended dismissal of the allegation

that Ms. Starr violated Section 475.25(1)(f), Florida Statutes,

as a result of her DUI. However, the ALJ recommended revocation

of Ms. Starr’s license based upon her failure to disclose a

prior criminal offense on her license application in vi olation

of Section 475.25(1)(m), Florida Statutes. The revocation of

Ms. Starr’s license was affirmed on appeal. See Starr v. Dept.

of Business & Professional Reg. , 729 So. 2d 1006 (Fla. 4th DCA

1999).

COPIES FURNISHED :

Nancy B. Hogan, Chairman

Florid a Commission Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801

Michael Martinez, Acting General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Daniel Villazon, Esquire

Daniel Villazon, P.A.

1020 Verona Street

Kissimmee, Florida 347 41

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 O rder in this case.