08-005416 Teddy Nadel vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Wednesday, March 18, 2009.

Summary: Respondent presented clear and convincing evidence that Petitioner lacks good moral character; Respondent therfore should not issue Petitioner a license to operate as a community association manager.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TEDDY NADEL, )

)

Petitioner, )

)

vs. )

) Case No. 08-5416

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by telephone conference on

January 12, 2009, at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: David Feldheim, Esquire

Law Office of David Feldheim

Post Office Box 17274

Plantation, Florida 33318

For Respondent: Philip F. Monte, III, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is of good

moral character, which must be affirmatively determined by

Respondent before Petitioner can be issued a license to operate

as a community association manager.

PRELIMINARY STATEMENT

By a written notice dated August 19, 2008, Respondent

Department of Business and Professional Regulation informed

Petitioner Teddy Nadel that it would not certify that he is of

good moral character and hence intended to deny his application

for licensure as a community association manager. Mr. Nadel

timely requested a formal hearing to contest the allegation that

he lacks good moral character, and the matter was referred to

the Division of Administrative Hearings on October 27, 2008.

The final hearing took place as scheduled on January 12,

2009, with both parties present and represented by counsel.

At hearing, Mr. Nadel testified on his own behalf and also

called Leonard Lampert and Neal Lechtner as character witnesses.

Mr. Nadel offered no exhibits. The Department presented one

witness, its employee Anthony Spivey, who is the executive

director of an office within the Department's Division of

Professions called the Regulatory Council of Community

Association Managers. In addition, Petitioner's Exhibits 1

through 11 were admitted into evidence without objection.

The final hearing transcript was filed on January 28, 2009.

Each party thereafter submitted a Proposed Recommended Order,

and the undersigned has considered these papers.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 Florida Statutes.

FINDINGS OF FACT

The Parties

1. Petitioner Department of Business and Professional

Regulation ("Department") has jurisdiction to regulate the

practice of community association management.

2. In June 2008, Petitioner Teddy Nadel ("Nadel")

submitted to the Department an application for licensure as a

community association manager.

3. In August 2008, the Department notified Nadel that it

intended to deny his application on the ground that he had

failed to demonstrate good moral character.

Nadel's Relevant Personal History

4. For decades, from the mid-1960s through 2005, Nadel was

a certified general contractor in the state of Florida. During

most of this period, Nadel apparently engaged in the business of

contracting without incident. In recent years, however, Nadel

on several occasions was disciplined administratively for

alleged misconduct in connection with his contracting business.

5. The first disciplinary proceeding arose from Nadel's

alleged failure timely to pay a civil judgment. In August 2001,

the Department issued an Administrative Complaint accusing Nadel

of having failed "to satisfy[,] within a reasonable time, the

terms of a civil judgment obtained against the licensee . . .

relating to the practice of the licensee's profession," which is

an offense under Section 489.129(1)(q), Florida Statutes.

Without admitting or denying the allegations, Nadel agreed to

entry of a Final Order, in August 2002, whereby he was directed

to satisfy the judgment, pay a fine of $500, and reimburse the

Department $333.37 in costs.

6. In March 2003, the Department again issued an

Administrative Complaint against Nadel. The multiple charges

included failure timely to satisfy a civil judgment,

mismanagement, 1 incompetence, 2 and helping an unlicensed person

engage in the business of contracting. 3 In December 2003,

pursuant to a stipulation under which Nadel elected not to

dispute (or admit) the charges, the Construction Industry

Licensing Board ("Board") entered a Final Order requiring Nadel

to pay a fine and costs totaling approximately $4,000, satisfy

the final judgment against him, and serve two years' probation.

7. On March 7, 2005, the Board entered a Final Order

Approving Voluntary Relinquishment of Licensure, which

permanently stripped Nadel of his general contractor license.

This action brought to an end certain disciplinary proceedings

which were then pending against Nadel, who had been charged with

helping four separate unlicensed individuals engage unlawfully

in the business of contracting. Nadel neither admitted nor

denied the allegations.

8. At the final hearing, Nadel was afforded a full

opportunity to explain the circumstances surrounding the

multiple disciplinary actions that had been brought against him.

To the rather limited extent Nadel testified about the facts

underlying the numerous administrative charges described above,

he failed persuasively and credibly to rebut the reasonable

inference that naturally arises from the undisputed facts

concerning his willingness repeatedly to accept punishment

(including, ultimately, the loss of his license) without a

contest in the respective disciplinary cases: namely that he

had committed the unlawful acts as alleged. The undersigned

therefore infers that, in the relatively recent past, Nadel

exhibited a troubling pattern of behavior demonstrating a

disregard of the laws regulating the business of contracting.

9. On January 4, 2007, Nadel was convicted in the Circuit

Court for the Seventeenth Judicial Circuit on charges of

engaging in the unlicensed practice of contracting during a

state of emergency, which is a third degree felony 4 ; and grand

theft in the third degree, which is also a felony of the third

degree. 5 (Nadel had pleaded no contest to these charges, and the

court had withheld adjudication.) Following this conviction,

the court sentenced Nadel to 18 months' probation, imposed some

small fines, and assessed costs.

10. In his application for licensure as a community

association manager, Nadel disclosed his criminal conviction and

the fact that he had voluntarily relinquished his general

contractor license. He denied, however, having been "involved

in any civil lawsuits or administrative actions in this or any

other state . . . ." This denial was false, as Nadel must have

known. After all, in the previous six years at least two

administrative actions had been brought against Nadel in whole

or in part because of his failure to pay two separate civil

judgments.

Ultimate Factual Determination

11. Based on the foregoing findings of fact, the evidence

in support of which is clear and convincing, it is determined

that Nadel does not possess the good moral character required

for issuance of a community association manager license.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

13. Before the Department can issue a community

association manager license to any person, it must certify that

the person is of good moral character. The relevant statute

provides as follows:

(2) The department shall examine each

applicant who is at least 18 years of age,

who has successfully completed all

prelicensure education requirements, and who

the department certifies is of good moral

character.

(a) Good moral character means a personal

history of honesty, fairness, and respect

for the rights of others and for the laws of

this state and nation.

(b) The department may refuse to certify an

applicant only if:

1. There is a substantial connection

between the lack of good moral character of

the applicant and the professional

responsibilities of a community association

manager;

2. The finding by the department of lack of

good moral character is supported by clear

and convincing evidence; or

3. The applicant is found to have provided

management services requiring licensure

without the requisite license.

§ 468.433(2), Fla. Stat.

14. The Department has prescribed by rule a detailed

framework of objective criteria for determining whether an

applicant possesses good moral character. Florida

Administrative Code Rule 61-20.001(5) provides in pertinent part

as follows:

(a) Unless the division denies the

application for incompleteness under

paragraph (4)(a) of this rule, the division

shall evaluate the application and make

appropriate inquiry to determine the

applicant's moral character. Demonstration

of all of the following will establish the

applicant's good moral character:

1. The completion of a criminal history

records check by the Florida Department of

Law Enforcement and self-disclosure by the

applicant that establishes that the

applicant has no criminal record ; and

2. The absence of civil lawsuits or

administrative actions decided adversely to

the applicant which involved matters bearing

upon moral character including, for example:

fraud, dishonesty, misrepresentation,

concealment of material facts, or practicing

a regulated profession without a license or

certificate as required by law or rule; and

3. No prior history of violations by the

applicant of Chapter 468, Part VIII, F.S.,

any rule of the division relating to

community association management, or any

lawful order of the division previously

entered in a disciplinary proceeding, or of

failing to comply with a lawfully issued

subpoena of the division; and

4. The absence of other information

generated in the course of the application

process which negatively reflects on the

applicant’s moral character including, for

example: gross misconduct or gross

negligence in the applicant's prior work

experience whether or not the prior work was

related to the professional responsibilities

of a community association manager; and

5. That the applicant has not committed

the following in connection with an

application:

a. Given to the division a check for

payment of any fee when there are

insufficient funds with which to pay the

same, if the applicant, upon notification by

the division, fails to redeem the check or

otherwise pay the fee within 30 days of the

date of written notification by the

division; or

b. Failed to provide full and complete

disclosure, or failed to provide accurate

information.

(Emphasis added.) For purposes of the foregoing, the term

"criminal record" means "any misdemeanor or felony charge filed

against the applicant in the courts of any state or federal

district or territory, or other country, on any subject matter

whether related to community association management or not,

concerning which charge the applicant was found guilty, or pled

guilty, or pled no contest, regardless of whether or not there

was an adjudication by the court, and regardless of whether the

matter is under appeal by the applicant." Fla. Admin. Code R.

61-20.001(1)(c).

15. The fact that Nadel has a criminal record is

sufficient, of itself, to preclude a finding of good moral

character pursuant to Rule 61-20.001(5)(a).

16. When an applicant is unable, as here, to establish

good moral character under Rule 61-20.001(5)(a), the following

additional factors must be considered:

1. If commission of a second degree

misdemeanor is the only reason the applicant

did not meet the requirements of paragraph

(5)(a) of this rule, the applicant will be

considered to have good moral character.

However, if there are also other reasons why

the applicant did not meet the requirements

of paragraph (5)(a) of this rule, the second

degree misdemeanor will be considered along

with the other factors in determining the

applicant's good moral character;

2. If the applicant has committed a first

degree misdemeanor or a felony, and the

applicant's civil rights have been restored,

this alone shall not preclude a finding of

good moral character unless the crime is

directly related to the professional

responsibilities of a community association

manager. Crimes that are deemed to be

directly related to the professional

responsibilities of a community association

manager include , for example, fraud, theft ,

burglary, bribery, arson, dealing in stolen

property, forgery, uttering a forged

instrument, sexual battery, lewd conduct,

child or adult abuse, murder, manslaughter,

assault, battery, and perjury. The

applicant has the burden of proving

restoration of civil rights by certified

true copy of government or court records

reflecting such action.

3. Whether the applicant has exhibited a

pattern of unlawful behavior which would

indicate that the applicant has little

regard for the law, the rules of society, or

the rights of others. All unlawful acts

will be considered in determining whether

the applicant has exhibited a pattern of

unlawful behavior , even though any one of

the unlawful acts by itself might not be

directly related to the professional

responsibilities of a community association

manager. It is the applicant's repeated

flaunting of or ignoring the law that

evinces a lack of the moral character needed

to perform the duties and assume the

responsibilities of a community association

manager, not the particular relationship of

any one of the violations to the

professional responsibilities of a community

association manager.

4. Whether the applicant is disqualified

from applying for a license by reason of

Section 775.16, F.S., pertaining to

conviction of certain offenses involving

controlled substances.

5. Conduct of the applicant relied upon

by the division to determine that the

applicant lacks good moral character shall

be directly related to the professional

responsibilities of a community association

manager.

6. Written evidence the division will

consider in determining the applicant's good

moral character shall include:

a. A statement from the applicant

explaining the applicant's criminal/unlawful

conduct and the reason the applicant

believes the division should issue the

license;

b. Evidence as to the length of time

since the conduct occurred or the age of the

applicant at the time the conduct occurred;

c. Evidence of successful rehabilitation;

d. Recommendations from parole or

probation employees who have supervised the

applicant;

e. Recommendations from the prosecuting

attorney or sentencing judge;

f. Character references from individuals

other than immediate family members, who

have known the applicant for 3 years or

longer;

g. Police reports or transcripts which

reveal the underlying facts of the crime;

h. Evidence that the conduct was an

isolated occurrence contrary to the

applicant's normal pattern of behavior; and

i. Evidence of community or civil

activities with which the applicant has been

associated.

It is the applicant's responsibility to

provide such mitigating evidence to the

division.

7. If the applicant makes incomplete,

misleading or false statements regarding

material facts in making an application,

such action will establish the applicant's

lack of good moral character, and the

application will be denied.

Fla. Admin. Code R. 61-20.001(5)(b)(emphasis added).

17. A few of the enumerated factors weigh heavily against

Nadel. To begin, his felony conviction for grand theft——a crime

which is deemed to be directly related to the professional

responsibilities of a community association manager——is probably

disqualifying, without more. 6 But there is more: a pattern of

relatively recent, unlawful behavior, as evidenced by the serial

disciplinary proceedings during the instant decade, which

culminated in Nadel's losing his general contractor license.

And finally, Nadel made a false statement of material fact in

his application, denying that he had been involved in any civil

lawsuits or administrative actions, when in fact his recent

litigation history includes both civil and administrative

proceedings. Taken together, these factors decisively

demonstrate the existence of several serious deficiencies in

Nadel's moral character——too many, at bottom, for the Department

to certify that such character is "good."

18. The Department, therefore, has presented clear and

convincing evidence that Nadel lacks good moral character.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department enter a final order

denying Nadel's application for licensure as a community

association manager.

DONE AND ENTERED this 18th day of March, 2009, in

Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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 18th day of March, 2009.

ENDNOTES

1 / See § 489.129(1)(g), Fla. Stat.

2 / See § 489.129(1)(m), Fla. Stat.

3 / See § 489.129(1)(d), Fla. Stat.

4 / See § 489.127(2)(c), Fla. Stat.

5 / See § 812.014(2)(c)1., Fla. Stat.

6 / Nadel failed to prove that his civil rights have been

restored; the outcome would be the same, however, even if he had

proved restoration.

COPIES FURNISHED :

David Feldheim, Esquire

Law Office of David Feldheim

Post Office Box 17274

Plantation, Florida 33318

Philip F. Monte, III, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Anthony B. Spivey, Executive Director

Regulatory Council of Community

Association of Managers

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.