08-000214 Dawn J. Ellis vs. Florida Real Estate Commission Status: Closed Recommended Order on Tuesday, March 25, 2008.

Summary: Petitioner was qualified for a real estate sales associate license despite criminal convictions committed approximately nine years prior to her application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAWN J. ELLIS, )

)

Petitioner, )

)

vs. ) Case No. 08-0214

)

FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on February 21, 2008, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Dawn J. Ellis, pro se

3409 Cedarwood Trail

Tallahassee, Florida 32312

For Respondent: Garnett Chisenhall, 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 license may lawfully be denied based on her criminal

history.

PRELIMINARY STATEMENT

Petitioner Dawn J. Ellis (Ms. Ellis) submitted an

application for a real estate license as a sales associate that

was received by the Department of Business and Professional

Regulation (Department) on July 20, 2007. The Department

provides administrative support to the Florida Real Estate

Commission (Commission). Acting as representative of the

Commission, the Department deemed the application incomplete and

returned it to Ms. Ellis by letter, dated August 7, 2007.

Ms. Ellis provided additional information, including an

affidavit dated November 7, 2007. Subsequently, the Commission

issued its Notice of Intent to Deny. It was filed on

December 12, 2007. Ms. Ellis submitted Petitioner's Response to

Notice of Intent to Deny that was filed by the Division of Real

Estate of the Department on January 4, 2008. The matter was

referred to the Division of Administrative Hearings and filed on

January 11, 2008. It was set for hearing on February 21, 2008,

and was heard as scheduled.

At the hearing, Petitioner testified. She offered no

exhibits into evidence. Respondent presented no testimony.

Respondent offered Group Exhibit 1, which was accepted into

evidence.

No transcript was ordered. After the hearing, Petitioner

and Respondent timely filed their Proposed Recommended Orders on

March 17, 2008.

References to statutes are to Florida Statutes (2007)

unless otherwise noted.

FINDINGS OF FACT

1. The Commission is a state licensing and regulatory

agency charged, inter alia , with granting or denying real estate

licenses. Certain administrative services are provided to the

Commission by the Division of Real Estate (Division) of the

Department of Business and Professional Regulation (Department).

2. Ms. Ellis, at the time of the hearing, was a 34-year-

old female residing in Tallahassee, Florida. She is currently

employed as a legal secretary and has held a commission as a

notary public in Florida since 1997.

3. On July 20, 2007, a DBPR 0010-2 Master Individual

Application, prepared by Ms. Ellis, was received by the

Department. The application sought a real estate sales

associate license.

4. In a letter dated August 7, 2007, the Department

notified Ms. Ellis that her application was incomplete.

Specifically, the letter noted that she had checked the "yes"

block on the inquiry addressing criminal matters and requested

additional information with regard to her involvement with the

criminal justice system. The letter also requested matters,

labeled "Questions 2, 3, and 4," that were not relevant to her

application.

5. In a letter dated October 23, 2007, Ms. Ellis responded

to the demand for additional information. She provided the

Department with letters of recommendation written by her father,

Tallahassee attorney Vinson Barrett, and fellow legal secretary

Adriana Bernstein. The gist of the letters was that she is a

good worker, honest, an exemplary mother, trustworthy, and

maintains good working relationships with her fellow workers.

6. In a letter dated October 29, 2007, she provided

additional documents illuminating her involvement with the

criminal justice system.

7. Despite her input, the Commission rejected her

application at its November 14, 2007, meeting. Ms. Ellis did

not attend this meeting.

8. The Commission recited findings of fact using reference

"keys" as follows:

1. CRIMES IN APPLICATION

Applicant's criminal record is revealed in

application.

* * *

4. UNPERSUASIVE TESTIMONY

Applicant's testimony or evidence in

explanation/mitigation was unpersuasive.

5. CRIMES RECENT

Applicant's criminal history is recent in

time.

6. PATTERN OF CRIME

Applicant's criminal history shows a pattern

and practice of criminal behavior over an

extended period of time.

* * *

9. The Commission made the following conclusions of law:

* * *

B. Failing to demonstrate: honesty,

truthfulness, trustworthiness and good

character, a good reputation for fair

dealing, competent and qualified to conduct

transactions and negotiations with safety to

others. 475.17(1)(a), 475.181 F.S.

C. Having engaged in conduct or practices

which would have been grounds for revoking

or suspending a real estate license.

475.17(1)(a), 475.181 F.S.

* * *

F. Found guilty of a course of conduct or

practices which show applicant is so

incompetent, negligent, or dishonest that

money, property, and rights of others may

not safely be entrusted to applicant.

475.25(1)(o), 475.181 F.S.

* * *

L. Applicant is subject to discipline under

475.25______(specify), 475.181 F.S.

M. The Commission concludes that 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/her easy access to the homes, families,

or personal belongings of the citizens of

Florida. 455.201, F.S.

10. A "Summary of Applicants, FREC Meeting: November 14,

2007" prepared for the Commission meeting in Ms. Ellis' case, is

inaccurate, and unless read closely and supplemented with

additional facts, would cause a reasonable person to believe

that Ms. Ellis was convicted of four offenses. In fact, she was

found guilty of two offenses, battery and stalking.

11. Although it is apparent that the Commission once had

rules in place that perhaps provided guidance in relation to the

standards expected of an applicant's behavior, the rules have

been repealed and new rules have not be adopted.

12. The events giving rise to the findings recited by the

Commission, relate to incidents arising from Ms. Ellis'

interaction with law enforcement authorities while a resident of

Tampa, Florida.

13. Ms. Ellis moved into Ms. Lisa Nawrocki's home at East

99th Street, in Tampa during the latter part of 1998 with her

two children. She and Ms. Nawrocki had a series of disputes

with their neighbors. From late 1998 until October 1999, law

enforcement was summoned by Ms. Ellis, Ms. Nawrocki, or their

neighbors on 30 occasions.

14. On January 31, 1999, Ms. Ellis was arrested for a

battery precipitated by a dispute with one of her neighbors.

She pleaded not guilty, but was found guilty of battery at a

bench trial. She was sentenced on May 26, 1999, to one year of

probation and community service. Ms. Ellis was also directed to

attend an anger management class.

15. Ms. Ellis alleged to the media that she and

Ms. Nawrocki were victims of "hate" crimes. Ms. Ellis asserted

to the media that their difficulties with their neighbors arose

because she was a homosexual.

16. Ms. Ellis was arrested again on August 25, 1999, as a

result of a confrontation with neighbors. The neighbors were

witnesses against Ms. Ellis in another case so she was charged

with witness tampering. In order to avoid a trial and possible

imprisonment, with attendant separation from her children, she

pleaded guilty to the lesser offense of stalking and was

sentenced to one year of probation on October 27, 1999. Because

the latter offense was a violation of probation on the battery

offense of January 31, 1999, her probation was revoked. She was

sentenced to 30 days in jail.

17. After serving six days in jail Ms. Ellis was released

after promising the judge that she and Ms. Nawrocki would move

out of their troubled neighborhood on East 99th Street, and

relocate to Tallahassee, Florida. Ms. Ellis did in fact move to

Tallahassee and has experienced no involvement with the criminal

justice system since her move.

18. Her probation, resulting from the battery conviction

was successfully completed on March 7, 2000. Her probation

resulting from the stalking charge, which was continued

subsequent to her release from confinement, was successfully

completed on May 15, 2001.

19. All of the charges resulted from the neighborhood

dispute that began late 1998 and ended with her departure from

her neighborhood early in November 1999. There is no record of

Ms. Ellis' involvement with the criminal justice system before

or since these events. The period of the neighborhood dispute

is insufficiently long to be termed as "a pattern and practice

of criminal behavior over an extended period of time."

20. Ms. Ellis' unrebutted testimony at the hearing was

that since the end of 1999, she has been employed as a legal

secretary in Tallahassee. Ms. Ellis testified that she works

with confidential attorney-client matters and that she has

maintained the accounts of law firms.

21. Ms. Ellis' testimony at the hearing is supported by

the written evidence of record, including a letter penned by

Attorney Vinson Barrett, who stated that she was honest and

trustworthy. Her testimony is deemed credible.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

23. The Commission and the Department are the state

agencies responsible for regulating real estate brokers and

sales associates. See generally Ch. 475, pt. I, Fla. Stat.

24. The Department is the agency that issues the real

estate sales associate license, but it does so only after

certification from the Commission that the applicant has

satisfied the applicable statutory and rule criteria. See

§ 475.181, Fla. Stat.

25. It is Ms. Ellis' burden to prove by a preponderance of

the evidence that she satisfies the criteria for licensure as a

real estate sales associate, if she is to prevail. See

§ 120.57(1)(j), Fla. Stat., and Balino v. Department of Health

and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

26. 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 ,

463 So. 2d 1130 (Fla. 1985).

27. The Department's duty to license an applicant

certified by the Commission is ministerial, as is its duty to

deny licensure to an applicant not certified by the Commission.

See § 475.181(1), Fla. Stat.

28. The Commission's certification (or not) of an

applicant for licensure is subject to the provisions of

Subsection 475.181(2), Florida Statutes, which references other

statutes. The question of qualification in this case is limited

to the issue of Ms. Ellis's conduct. Other requirements such as

age, education, or license examinations are not in issue.

29. The first part of Subsection 475.181(2), Florida

Statutes, provides, "The commission shall certify for licensure

any applicant who satisfies the requirements of ss. 475.17,

475.175, and 475.180. The commission may refuse to certify any

applicant who has violated any of the provisions of s. 475.42 or

who is subject to discipline under s. 475.25." Section 475.175,

Florida Statutes, relates to examinations, and Section 475.180,

Florida Statutes, relates to nonresident licenses and are,

therefore, irrelevant to this proceeding.

30. Subsection 475.17(1)(a), Florida Statutes, provides in

part as follows:

475.17. Qualifications for practice--

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

a natural person must be . . . honest,

truthful, trustworthy, and of good

character; and have a good reputation for

fair dealing. An applicant for . . . a

sales associate's license must be competent

and qualified to make real estate

transactions and conduct negotiations

therefor with safety to investors and to

those with whom the applicant may undertake

a relationship of trust and confidence. 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. The

commission may adopt rules requiring an

applicant for licensure to provide written

information to the commission regarding the

applicant's good character.

* * *

31. Parts of Section 475.25, Florida Statutes, asserted to

be pertinent to this case follow:

475.25. Discipline --

(1) The commission may deny an

application for licensure . . . if it finds

that the . . . applicant:

(a) Has violated any provision of s.

455.227(1) or s. 475.42. However, licensees

under this part are exempt from the

provisions of s. 455.227(1)(i).

* * *

(f) Has been convicted or found guilty

of, or entered a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction . . . involves moral turpitude

or fraudulent or dishonest dealing. The

record of a conviction certified or

authenticated in such form as to be

admissible in evidence under the laws of the

state shall be admissible as prima facie

evidence of such guilt.

* * *

(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.

* * *

32. Section 475.42, Florida Statutes, addresses unlawful

activities in which a licensed person may engage. Nothing in

that statute applies to the matters alleged in this case.

33. Because Subsection 475.25(1)(a), Florida Statutes,

provides that a violation of Subsection 455.227(1), Florida

Statutes, may be a disqualifying matter, the single relevant

subsection is provided:

§ 455.227. Grounds for discipline;

penalties; enforcement

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(c) Being convicted or found guilty of,

or entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which relates to the practice

of, or the ability to practice, a licensee's

profession.

* * *

34. Ms. Ellis was not convicted of any crime that related

to the practice of or the ability to practice as a real estate

sales associate as contemplated by Subsection 455.227(1)(c),

Florida Statutes.

35. Section 455.201, Florida Statutes, is recited in the

Commission's conclusions of law, but nothing in that statute

appears to regulate individual conduct.

36. With regard to the Commission's "Findings of Fact,"

Ms. Ellis did reveal her criminal history in the application,

and the Commission so stated. No standard was offered against

which to measure whether Ms. Ellis' criminal history was

"recent." Eight years have passed since the last criminal act.

It is found as a fact that a crime committed in 1999 is not

recent.

37. Subsection 475.17(1)(a), Florida Statutes, set forth

above, also requires that the applicant demonstrate through

"subsequent good conduct and reputation . . . that the interest

of the public and investors will not likely be endangered . . ."

by granting the application. Successfully performing as a

person commissioned by the State of Florida as a notary public,

and working in a position of trust and confidentiality in an

attorney's office for many years, is sufficient proof that her

conduct subsequent to her criminal activity has been good. This

is particularly so when one considers the nature of the offenses

cited.

38. No standard was offered against which to measure

whether Ms. Ellis' criminal history demonstrates a pattern and

practice of criminal behavior over a period of time. The period

during which the neighborhood dispute was ongoing did not exceed

nine months. It is found as a fact that nine months is not an

extended period of criminal behavior. As noted above, this is

particularly so when one considers the nature of the offenses

cited.

39. With regard to the Commission's "Conclusions of Law,"

it was found that Ms. Ellis failed to demonstrate "honesty,

truthfulness, trustworthiness and good character, a good

reputation for fair dealing, competent and qualified to conduct

transactions and negotiations with safety to others," citing

Subsection 475.17(1)(a) and Section 475.181, Florida Statutes.

One of the two offenses charged was witness tampering. This was

never proven. She was allowed to plead to a lesser offense.

Consequently, there is no evidence indicating that Ms. Ellis is

not honest, truthful, or without good character.

40. With regard to Subsection 475.25(1)(f), Florida

Statutes, no offense was committed that amounts to "moral

turpitude or fraudulent or dishonest dealing." The closest

behavior that might be found to amount to moral turpitude was

the August 25, 1999, confrontation that involved persons

scheduled to testify against Ms. Ellis. If tampering with a

witness had actually occurred, it seems unlikely that the court

would have allowed a plea to a lesser offense.

41. Applying the facts adduced to all of the law asserted

to be pertinent to this case, it is concluded that Ms. Ellis'

conduct was not of the sort that is likely to affect her ability

to perform as a professional realtor. Her participation in a

neighborhood dispute, even assuming she was the instigator, does

not reflect on her trustworthiness and does not indicate she is

not suitable to be a real estate sales person.

42. A review of similar cases where disqualification was

based on criminality is illuminating. For instance, an

applicant received a recommended order of disqualification

subsequent to being convicted of 13 felony counts involving 12

fraudulent applications for FHA and VA loans. Wozniak vs.

Florida Real Estate Commission , Case No. 88-0188 (DOAH May 10,

1988). In another case, a recommendation of denial issued to an

applicant who pleaded guilty to conspiracy to counterfeit

twenty-dollar bills. Stobbe vs. Department of Professonial

Regulation, Board of Real Estate , Case No. 81-1924 (DOAH

December 1, 1981). In yet another, a recommendation of denial

was issued to an applicant who entered a guilty plea to fraud,

submitting false claims, stealing mail, larceny, and signing a

false statement and who later pled to a charge of criminal

sexual contact and endangering the welfare of children.

Denicola vs. Department of Business and Professional Regulation ,

Case No. 03-3498 (DOAH March 5, 2004).

43. The offenses in the cases cited above seem quite

serious when compared to the charges involving Ms. Ellis.

Involving oneself in an ongoing neighborhood dispute for a

period of nine months, and having been twice convicted of

offenses related to that dispute, almost nine years ago, is not

the sort of criminality that should affect Ms. Ellis' fitness to

be licensed as a real estate sales associate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Real Estate Commission

withdraw its Notice of Intent to Deny the Application of Dawn J.

Ellis, if she is otherwise qualified, that the Commission

certify to the Department of Business and Professional

Regulation that Dawn J. Ellis has satisfied the applicable

statutory and rule criteria for licensure as a real estate sales

associate.

DONE AND ENTERED this 25th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 25th day of March, 2008.

COPIES FURNISHED :

Dawn J. Ellis

3409 Cedarwood Trail

Tallahassee, Florida 32312

Garnett Chisenhall, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

Suite 802 - North Tower

400 West Robinson Street

Orlando, Florida 32801

S. W. Ellis, Chairman

Florida Real Estate Commission

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

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.