11-003809 Samuel Poppell vs. Florida Real Estate Commission Status: Closed Recommended Order on Thursday, December 1, 2011.

Summary: Applicant for licensure as a real estate sales associate has pending criminal charges.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUEL POPPELL , )

)

Petitioner , )

)

vs. ) Case No. 11 - 3809

)

FLORIDA REAL ESTATE COMMISSION , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on November 6, 2011, in Orlando, Florida, before Susan Belyeu

Kirkland, an Administrative Law Judge of the Division of

Administrative Hearings.

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

STAT EMENT OF THE ISSUE

The issue in this case is whether Petitioner ' s application

for licensure as real estate sales associate should be granted.

PRELIMINARY STATEMENT

On July 14, 2011, Respondent, Florida Real Estate

Commission (Commission) , filed a Notice of Intent to Deny the

application of Petitioner, Samuel Poppel l (Mr. Poppell), for

licensure as a real estate sales associate. The Commission ' s

denial is based on Mr. Poppell ' s criminal history. Mr. Poppell

requested an administrative hearing, and the ca se was forwarded

to the Division of Administrative Hearings on July 28, 2011, for

assignment to an Administrative Law Judge to conduct the final

hearing.

At the final hearing, Joint Exhibit 1 was admitted in

evidence. Mr. Poppell testified in his own beha lf. The

Commission did not call any witnesses.

No transcript was ordered. The parties agreed to file

their proposed recommended orders within ten days of the date of

the final hearing. The Commission filed Respondent ' s Proposed

Recommended Order on Nove mber 18, 2011. Mr. Poppell filed his

Proposed Recommended Order on November 21, 2011.

FINDINGS OF FACT

1. On February 28, 2011, Mr. Poppell filed with the

Commission an application for licensure as a real estate sales

associate. In his application , Mr. Poppell stated that he was

pleading not guilty to current charges of "trafficking,

possession and receiving stolen property."

2. By letter dated April 7, 2011, Mr. Poppell sent to the

Commission the Alabama Uniform Incident/Offense Report relating

to his arrest in Tuscaloosa, Alabama, on September 12, 2010, for

trafficking in illegal drugs and unlawful possession of a

controlled substance. At the time of his arrest, Mr. Poppell

was a student at the University of Alabama.

3. The criminal case against Mr. Poppell is currently

pending, and Mr. Poppell does not anticipate that it will be

resolved until 2012.

4. Mr. Poppell, who is 22 years old , posted bail of

$175,000. He currently lives in Florid a and owns a pizza and

sub restaurant with his mother in Niceville, Florida.

5. On July 14, 2011, the Commission filed a Notice of

Intent to Deny Mr. Poppell ' s application. The Commission ' s

denial was based on Mr. Poppell ' s criminal history as revealed

i n his application and the unpersuasive testimony or evidence

presented by Mr. Poppell as an explanation or mitigating

factors.

6. The Commission cited the following statutory basis for

denying Mr. Poppell ' s application:

B. Failing to demonstrate: honest y,

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 wo uld 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 a nd rights of others may not

safely be entrusted to applicant.

475.25(1)(o), 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 a nd thereby provide

him/her easy access to the homes, families

or personal belongings of the citizens of

Florida. 455.201, F.S.

Additionally, the Commission cited section 455.213(3) , Florida

Statutes (2011), 1/ as an additional ground for denial.

CONCLUSIO NS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 & 120.57, Fla. Stat.

8. As the applicant seeking licensure, Mr. Poppell has the

burden to establish by a preponderance of the evidence that he

satisfies the requirements for licensure as a real estate sales

associate. Dep ' t of Banking & Fin. v. Osborne Stern & Co. , 670

So. 2 d 932, 934 (Fla. 1996); Dep ' t of Transp. v. J.W.C. Co.,

Inc. , 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

9. Section 475.181 , Florida Statutes, provides:

( 1) The department shall license any

applicant whom the commission certifies,

pursuant to subsection (2 ), to be qualified

to practice as a broker or sales associate.

(2) 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 vi olated any

of the provisions of s. 475.42 or who is

subject to discipline under s. 475.25 . . . .

10. Section 475.17(1)(a) sets forth qualification for

licensure as a real estate sales associate and provides:

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

natural person must 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 for fair dealing. An

applicant for an ac tive broker ' s license or

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. . . . [ I ] f 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 sh all 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 th e 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.

11. Section 475.25(1)(f) provides that the Commission may

deny an application for licensure or discipline a licensee if it

finds that the applicant or licensee "[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 . . . involves mo ral turpitude or fraudulent or dishonest

dealing. "

12. 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 m an to society. It has

also been defined as anything done contrary

to justice, honesty, principle or good

morals, thoug h it often involves the

question of intent as when unintentionally

committed through error of judgment w hen

wrong was not contemplated.

State ex rel. Tullidge v. Hollingsworth , 146 So. 660, 661 (Fla.

1933)(citations omitted.)

13. Mr. Poppell has been charged with trafficking in

illegal drugs and receipt of stolen property, which in the

instant case was a firearm. Both crimes involve moral

turpitude. Fla. Bar v. Wilson , 425 So. 2d 2 (Fla. 1983) (Drug

trafficking is a crime of moral turpitude.); Page v. Watson , 192

So. 205 (Fla. 1938) ( Possession of stolen property is a crime of

moral turpitude.) . Thus, if Mr. Poppell were convicted of these

crimes, such convictions w ould serve as grounds for denial of

his application for licensure.

14. Section 455.213(3) provides:

(3) The board, or t he department when there

is no board, may refuse to issue an initial

license to any applicant who is under

investigation or prosecution in any

jurisdiction for an action that would

constitute a violation of this chapter or

the professional practice acts ad ministered

by the department and the boards, until such

time as the investigation or prosecution is

complete.

15. Mr. Poppel l has not been convicted of a crime of moral

turpitude. He has been arrested and charged with crimes of

moral turpitude. Thus, a t this time, he is not in viol ation of

section 475.25(1)(f).

16. No evidence was presented that Mr. Poppell has a

reputation for fair dealing. Thus, Mr. Poppell did not satisfy

that requirement of section 475.17 and , thus, cannot be

certified by the Comm ission for licensure pursuant to

section 475.181.

17. Mr. Poppell has been charged with trafficking

in illegal drugs and receiving stolen property, and the

prosecution of those charges ha s not been completed. Pursuant

to section 455.213(3), the Commissio n may refuse to issue a

license to Mr. Poppell. If Mr. Poppell were to be convicted of

these serious crimes, he would be in violation of section

475.25(1)(f) and would not meet the licensure requirements of

section 475.17, except the requirements that he be at least

18 years of age and hold a high school diploma. Thus, the

Commission correctly denied the application of Mr. Poppell.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Real Estate Commission

enter a final order denying Mr. Poppell ' s application.

DONE AND ENTERED this 1st day of December , 2011 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of December , 2011 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2011 version.

COPIES FURNISHED :

Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Danie l Villazon, Esquire

Daniel Villazon, P.A.

1420 Celebration Boulevard, Suite 200

Celebration, Florida 34747

Layne Smith , General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Roger P. Enzor, Chair

Florida Real Estate Commission

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions w ithin

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.