09-000646 Jamie Chapman vs. Florida Real Estate Commission Status: Closed Recommended Order on Friday, April 24, 2009.

Summary: Respondent should grant probationary salesperson license to the applicant with a felony conviction, because the applicant was rehabilitated and corrected the omission of a DUI offense in his initial application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMIE CHAPMAN, )

)

Petitioner, )

)

vs. ) Case No. 09-0646

)

FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on March 25, 2009, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A.

1420 Celebration Boulevard, Suite 200

Celebration, Florida 34747

For Respondent: Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Respondent should deny an application

for a real estate sales associate license on the alleged grounds

that, in violation of Subsections 475.17(1)(a), 475.181, and

475.25(1)(f), Florida Statutes (2008), 1 the application discloses

two felony convictions for crimes of moral turpitude, the

initial application omitted a misdemeanor conviction for driving

under the influence (DUI), and the applicant’s explanation in

mitigation of the incidents is allegedly unpersuasive.

PRELIMINARY STATEMENT

By Notice of Intent to Deny (Notice of Denial) issued on

December 10, 2008, Respondent notified Petitioner that

Respondent proposed to deny Petitioner's application for a real

estate sales associate license. Petitioner timely requested a

formal hearing, and Respondent referred the matter to DOAH to

conduct the hearing.

At the hearing, Petitioner testified, presented the

testimony of three witnesses, and submitted no exhibits for

admission into evidence. Respondent called no witnesses and

submitted one composite exhibit. The identity of the witnesses

and exhibits and the rulings regarding each are reported in the

official record of the hearing. Neither party requested a

transcript of the hearing. Petitioner and Respondent timely

filed their respective Proposed Recommended Orders on April 6,

2009.

FINDINGS OF FACT

1. Respondent is the state agency responsible, in relevant

part, for licensing real estate sales associates in the State of

Florida, pursuant to Chapter 475. Petitioner applied for a real

estate sales associate license on March 8, 2007, and Respondent

proposes in this de novo proceeding to deny the application.

2. Respondent states several grounds for the proposed

denial of Petitioner’s application. First, the application

discloses two felony convictions for crimes of moral turpitude,

and the crimes would have been grounds for revoking or

suspending a real estate license. Second, Petitioner omitted a

DUI misdemeanor conviction from the initial application before

the application was complete. Third, Respondent claims the

applicant has not demonstrated honesty, truthfulness,

trustworthiness, good character, and a good reputation for fair

dealing. Finally, Respondent considers the applicant’s

testimony in explanation or mitigation of the crime and omission

in his initial application to be unpersuasive.

3. The application discloses two felony convictions on

November 23, 1993. When Petitioner was approximately 18 years

old, Petitioner and three other teenagers committed aggravated

battery with a deadly weapon and armed robbery against two male

adults in Lee County, Florida. One of the teenagers struck each

victim with a baseball bat; took articles of clothing, jewelry,

wallets, and fishing rods and reels from each victim; and

divided the articles among the perpetrators. Each teenager was

under the influence of alcohol and controlled substances,

including marijuana and other drugs. The victims required

hospital treatment.

4. The two felony convictions involve crimes of moral

turpitude. The crimes exhibit i n h e r e n t b a s e n e s s o r d e p r a v i t y i n

the private social relations or du ties owed by ma n to man or by

man to society. Th e two felony convicti ons are gr ounds for

revoking or susp ending a real estate license.

5. On March 29, 1995, Petitioner pled nolo contendere to

two counts of robbery with a deadly weapon and two counts of

aggravated battery. The court adjudicated Petitioner guilty,

sentenced Petitioner to 10 years’ imprisonment, to be followed

by two years of probation, and ordered Petitioner to pay

$1,500.00 in restitution to the victims.

6. When the court convicted Petitioner on March 29, 1995,

Petitioner was not qualified for a real estate sales associate

license within the meaning of Subsection 475.17(1)(a). The

statute deems that Petitioner is not qualified for a real estate

sales associate license today, unless by lapse of time and

subsequent good conduct and reputation or other sufficient

reason, it appears the interest of the public and investors will

not likely be endangered by licensing Petitioner. For reasons

stated hereinafter, a preponderance of evidence shows the crimes

in 1993 do not make it likely that licensing Petitioner as a

real estate sales associate will endanger the public.

7. The testimony of Petitioner in explanation and

mitigation of the crimes committed in 1993 is persuasive.

Petitioner did not inflict physical harm on either of the

victims. Petitioner’s participation was limited to driving the

vehicle, which was his mother’s car, used in the commission of

the crimes and accepting a portion of the stolen property.

Petitioner was intimidated by the teenager who used the baseball

bat on the victims, and that teenager was under the influence of

alcohol and controlled substances.

8. When arrested, Petitioner admitted his guilt to police

and cooperated fully in the investigation. When sentenced,

Petitioner faced the victims in open court, admitted his guilt,

accepted responsibility, and apologized to the victims and their

family members.

9. Sufficient time has lapsed for Petitioner to be

rehabilitated and to overcome the statutory presumption of

unfitness. Approximately 15 and 14 years have passed,

respectively, from the dates of the commission and conviction of

the crimes. Almost six years have passed from the successful

completion of probation on June 5, 2003.

10. Petitioner’s subsequent good conduct after 1993

demonstrates his rehabilitation. Petitioner paid the $1,500.00

in restitution ordered by the court. Petitioner was released

from prison in late 1999, after serving four years and eight

months of his 10-year sentence.

11. While in prison, Petitioner took classes in drafting,

anger management, and life skills. Petitioner also attended

alcoholics anonymous and narcotics anonymous. Petitioner taught

other inmates and read extensively. Petitioner also assisted

with the development of a volley ball team for prisoners.

12. Upon release from prison in late 1999, Petitioner

moved to North Carolina for approximately two years, primarily

to avoid contact with his former peer group. Petitioner worked

two jobs and attended college where he continued to study

drafting.

13. In North Carolina, Petitioner was injured in an

automobile accident and suffered severe head injuries.

Petitioner was in a coma for nine days.

14. After recovering from his injuries, Petitioner

returned to his family in Lee County, Florida. Petitioner has

been gainfully employed, self-supportive, and has been working

for the past couple of years in a real estate office as an

unlicensed assistant.

15. Petitioner has earned a reputation for honesty,

truthfulness, trustworthiness, and good character and has earned

a good reputation for fair dealing in a relationship of trust

and confidence with safety to investors. Petitioner’s

girlfriend and grandmother are each licensed by Respondent as

real estate brokers. Both licensees recommend Petitioner for

licensure. Two disinterested licensees also recommend

Petitioner for licensure. 2

16. On February 14, 2007, Petitioner was convicted of a

DUI misdemeanor. Petitioner paid the court-ordered fine and

satisfactorily completed his sentence of community service and

probation.

17. A preponderance of evidence does not show that the

misdemeanor conviction for DUI is a crime of moral turpitude or

one that directly relates to the duties of a real estate sales

associate. Respondent did not cite any legal authority to show

that the DUI conviction would be a ground for license revocation

or suspension, if Petitioner were licensed. Finally, the DUI

conviction does not evidence a lack of honesty, truthfulness,

trustworthiness, good character, or fair dealing.

18. The initial application from Petitioner omitted the

DUI conviction. Petitioner corrected the omission before the

application became final and before Respondent formulated any

proposed agency action.

19. Respondent notified Petitioner by letter dated

August 5, 2008, of the omission. The letter notified Petitioner

that the application was incomplete without documentation of the

DUI conviction and requested the documentation needed to

complete the application. Petitioner promptly complied and

provided the requested documentation on August 22, 2008. If the

initial application had disclosed the DUI conviction, Respondent

cited no legal authority that would make the DUI conviction a

ground for denying the application.

20. Petitioner did not omit the DUI conviction from the

initial application through a lack of candor. The testimony of

Petitioner was credible and persuasive. 3

21. The omission of the DUI conviction from the initial

application evidences a lack of diligence. Any incompetence or

lack of diligence that remains after August 22, 2008, when

Petitioner completed the license application, can be corrected

through a probationary license authorized in Florida

Administrative Code Rule 61J2-24.001(2).

CONCLUSIONS OF LAW

2 2 . D O A H has jurisdiction over the parties to and subject

matter of this proceeding. §§ 120.569 and 120.57(1). DOAH

provided the parties with adequate notice of the final hearing.

2 3 . Petitioner bears the ultimate burden of proving his

entitlement to a license. Florida Department of Transportation

v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Petitioner must show by a preponderance of the evidence that he

satisfied relevant statutory criteria to be licensed as a real

estate sales associate.

24. Petitioner satisfied his burden of showing that

the 1995 felony convictions do not disqualify Petitioner

from being licensed as a real estate sales associate.

Subsection 475.17(1)(a) provides in relevant part that

Petitioner is deemed not to be qualified for a license 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.

25. Sufficient time has elapsed since Petitioner’s

conviction in 1995 that it is unlikely that the issuance of a

real estate sales associate license to Petitioner will endanger

the public. A determination of the sufficiency of time is a

finding of fact to be determined by the trier of fact. Smart v.

Board of Real Estate , 421 So. 2d 22 (Fla. 1st DCA 1982).

26. Subsequent good conduct after the felony convictions

in 1995 also make it unlikely that licensing Petitioner as a

real estate sales associate would endanger the public. The DUI

conviction does not present a likelihood of injury to the

public.

27. The adequacy of Petitioner’s conduct after the crimes

in 1993, including the omission of the DUI conviction in the

initial application, is not infused with agency expertise. The

evaluation of a licensee’s conduct is a question of fact to be

determined by the trier of fact. See Yeoman v. Construction

Industry Licensing Board , 919 So. 2d 542 (Fla. 1st DCA 2005);

Palamara v. State, Department of Professional Regulation , 855

So. 2d 706 (Fla. 4th DCA 2003); Bush v. Brogan , 725 So. 2d 1237,

1239-1240 (Fla. 2d DCA 1999); Dunham v. Highlands County School

Board , 652 So. 2d 894, 896 (Fla. 2d DCA 1995); Albert v. Florida

Department of Law Enforcement, Criminal Justice Standards and

Training Commission , 573 So. 2d 187 (Fla. 3d DCA 1991).

28. In assessing Petitioner’s subsequent good conduct

after 1993, the ALJ has been guided by analogous judicial

precedent pertaining to other professional licenses because

neither party cited any controlling judicial precedent involving

applicants for licensure as a real estate sales associate when

the application discloses felony convictions. In the absence of

controlling precedent, the ALJ has relied on decisions of the

Florida Supreme Court involving applicants for admission to the

Florida Bar for guidance. As officers of the court, licensed

attorneys are not held to a lesser standard of conduct than real

estate sales associates.

29. The Florida Supreme Court approved a 1979 application

for admission to the Florida Bar by an applicant who was

convicted in 1972 of a felony involving the sale of cocaine.

The criminal trial court sentenced the individual to prison for

four years. The Florida Supreme Court found that during the

seven years between the applicant's conviction and application

for admission to the Florida Bar, the applicant demonstrated

that he had been rehabilitated. In re: Petition of

Jose Agustine Diez-Arguelles , 401 So. 2d 1347 (Fla. 1981). See

also Florida Board of Bar Examiners; RE: D.M.J. , 586 So. 2d 1049

(Fla. 1991)(conviction of drug conspiracy charges does not

preclude admission to the Bar by applicant who demonstrates

rehabilitation).

30. In determining whether Petitioner has shown sufficient

rehabilitation, the nature and seriousness of the offense are to

be weighed against the evidence of rehabilitation. Florida

Board of Bar Examiners RE: Mark Stephen Barnett , 959 So. 2d 234

(Fla. 2007). More serious misconduct requires a greater showing

of rehabilitation. Id.

31. Petitioner did not personally commit an act of

violence in 1993. The misconduct committed by Petitioner in

1993 was limited to a single night and did not involve an

ongoing pattern of misconduct. Compare Barnett , 959 So. 2d at

235-236 (applicant rehabilitated in seven years after conviction

for resisting arrest with violence and misappropriation of

client funds), with Florida Board of Bar Examiners RE: M.B.S. ,

955 So. 2d 504, 510-511 (Fla. 2007)(misconduct from 1990 through

2002 is not overcome by evidence of rehabilitation between 2002

and application for admission in March of 2003), and Florida

Board of Bar Examiners RE: Fred C. McMahan , 944 So. 2d 335 (Fla.

2006)(applicant convicted in 1997 of felonies involving drug

trafficking failed to show rehabilitation when he applied for

re-admission to the Florida Bar in 2002).

32. Neither party cited any lega l authority th at the DUI

conviction in 2007 is a crim e of moral turp itude. In Cambas v.

Department of Bu siness and Profes sional Regulation , 2009 Fla. App.

LEXIS 2251 (Fla. 5th DC A 2009), a licensee ap pealed a final order

suspending his real esta te license. The licensee ha d pled guilty

to a DUI misdemeanor ch arge and a felony ch arge of le aving the

scene of an acci dent involving an injury . The licensee argued

that neither convicti on was a crime of mo ral turpitud e. The

appellate court co ncluded that leaving the scene of an accident

involving an injury was a crime of moral turpitude bu t did not

make a similar find ing concerning the DUI convic tion.

33. If Petiti oner had disclosed the DUI convicti on in the

initial applicat ion, that convicti on alone would no t have been an

impediment to li censure. Resp ondent did not cite any legal

authority to support the conclusion that a DUI convic tion is

adequate grounds for denying a lice nse applicatio n, and the

independent re search of the AL J has not uncovere d legal authority

to support that conclusion.

34. Respondent has adopted guidelin es for licens e discipline

in Florida Administ rative Code Rule 61J2-24. 001(3). The rule does

not prescribe disc iplinary guidelines fo r a DUI conv iction.

35. The Legislature intends for Re spondent to distinguish

between minor an d major violatio ns and to ap ply penalties

consistently with the discipline guidelines adopted by Respondent

in Florida Administ rative Code Rule 61J-24.00(3). Bemenderfer v.

Department of Bu siness and Professional Regulation, Di vision of

Real Estate , 955 So. 2d 659, 663 (F la. 4th DCA 20 07). The

decision to gran t or deny the li cense applic ation should be made

in a manner that is co nsistent with license discipli ne guidelines

adopted by Respondent in Florida Admini strative Code

Rule 61J2-24.001.

36. When an appl icant obtains a license by failing to

disclose a criminal co nviction or mi srepresenting a material fact,

license revocati on is the recommen ded penalty. Fl a. Admin. Code

R. 61J2-24. 001(3)(n); Starr v. Department of Business and

Professional Regulation, Division of Real Estate , 729 So. 2d 1006

(Fla. 4th DC A 1999); Walker v. Florid a Department of Business and

Professional Regulation , 705 So. 2d 652 (Fla . 5th DCA 1998).

However, Petitioner di d not obtain a license by misrepre senting a

material fact. Rather , Petitioner corrected the omission in the

initial applic ation by providing the do cumentation re quested by

Respondent in or der to complete the application.

37. Neither party ci ted any judici al decisions involving an

applicant for a re al estate license who om its his or her criminal

history from the appl ication, but the ag ency discovers the

omission before the ap plication is complete. Analogous judicial

precedent is provided by the Florida Supreme Court's admission of

an attorney who om itted prior cr iminal history involving

possession of ma rijuana from his applicat ion for admiss ion to the

Florida Bar. In Re: Applicatio n of VMF For Ad mission To The

Florida Bar , 491 So. 2d 1104 (Fla. 1986).

38. In 1975, VMF wa s arrested in Michigan and charged with

possession and delivery of marijuana. VMF entered into a plea

agreement in which he pled guilty to th e possession charge,

adjudication of guilt was withheld , and VMF served one year of

probation. VMF lived an exemplary life for 11 years until he

applied for admiss ion to the Florid a Bar in February of 1984. VMF

did not disclose the criminal conviction in his appl ication for

admission.

39. The Florida Supr eme Court reas oned, in relevant part,

that, if disclosed, the criminal convicti ons would not have

precluded the ap plicant from admission to the Flor ida Bar.

Petitioner’s DUI conv iction, like the crim inal convictions in VMF ,

would not prevent licensure if Petitioner had disclo sed the DUI

conviction in th e initial applicat ion. Like th e testimony of

Petitioner in th is proceeding, th e testimony of th e applicant in

VMF that he did not will fully mislead th e agency when he omitted

the criminal history from the applicatio n was persuasive. VMF ,

491 So. 2d at 1106-1107.

40. Even if it were found that the omissi on of the DUI

conviction from Petitioner's initial appl ication eviden ced a lack

of candor, a lack of candor does not au tomaticall y prevent

licensure. Florida Board of Bar Examin ers RE: L.M.S. , 647 So. 2d

838, 839 (Fla. 1994)( citing VMF , 491 So. 2d at 11 07, as authority

for granting admissio n to an applicant wh o was not co mpletely

candid in the ap plication). Unli ke the facts in L.M.S. and VMF ,

Petitioner's omission of the DU I conviction fr om the initial

application was co rrected before the applic ation was co mpleted.

The omission by Petitioner evidences a la ck of dilige nce rather

than a lack of candor.

41. Petitioner's la ck of diligenc e can be corr ected through

a probationary license. Florida Admi nistrative Code Rule 61J2-

24.001(2) author izes Respondent to place a licensee on probation.

The terms of probatio n may include a requirement to attend and

satisfactorily comple te a "pre-licensure course" or a "post-

licensure cour se" or other reason able terms of pr obation in cluding

"periodic insp ections and interviews."

42. Respondent can utilize a probat ionary license to require

Petitioner to comp lete one or more post-lic ensure courses, within

a reasonable period, that include instruct ion for di sclosure

requirements in real estate tran sactions. A prob ationary license

is a reasonable mean s of satisfying Resp ondent’s statutory

obligation in Sect ion 455.201 to pr otect the public. 4

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent enter a final order granting a

probationary salesperson license to Petitioner consistent with

the terms of this Recommended Order.

DONE AND ENTERED this 24th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of April, 2009.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2008), unless otherwise stated.

2/ Respondent’s Exhibit 1 contains written recommendations from

two licensees who are unrelated to Petitioner.

3/ The issue of whether the omission of the DUI conviction

evidences a lack of candor or a lack of diligence was a close

question of fact for the fact-finder. If the evidence were

limited to the documentary evidence available to the agency when

it proposed agency action, the fact-finder would have agreed

with the proposed denial of the application. However, the sworn

testimony of Petitioner was available to the fact-finder in this

de novo proceeding. The fact-finder listened to the testimony

and observed the witness during direct and cross-examination and

found the testimony of Petitioner on this issue to be credible

and persuasive.

4/ If a post-licensure course were unavailable, the terms of

probation may include reasonable requirements for inspection and

interviews. Alternatively, the terms of probation may include

both a post-licensure course and reasonable inspection and

interview requirements.

COPIES FURNISHED :

Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Daniel Villazon, Esquire

Daniel Villazon, P.A.

1420 Celebration Boulevard, Suite 200

Celebration, Florida 34747

S. W. Ellis, Chairman

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.