16-005763 Ricardo Luis Llorente vs. Department Of Business And Professional Regulation, Division Of Florida Condominiums, Timeshares And Mobile Homes Status: Closed Recommended Order on Monday, February 13, 2017.

Summary: Petitioner, who had a federal felony conviction in 2012 for conspiracy to commit bank fraud, did not persuasively establish his good moral character sufficient to support his application for a Florida yacht salesperson's license under chapter 326.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICARDO LUIS LLORENTE,

Petitioner,

vs. Case No. 16 - 5763

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF FLORIDA

CONDOMINIUMS, TIMESHARES AND

MOBILE HOMES,

Respondent.

____________________ ___________/

RECOMMENDED ORDER

This case was heard before Administrative Law Judge

Robert L. Kilbride of the Division of Administrative Hearings

( " DOAH " ) on December 14, 2016, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Michael Ramer Karcher, Esquire

Karcher, Canning & Karcher

760 Northeast 7th Avenue

Dania, Florida 33004 - 2502

For Respondent: Megan S. Silver, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

STATEMENT OF THE ISSUE

Whether Petitioner carried his burden of proving his good

moral ch aracter and entitlement to a yacht salesperson ' s license

under c hapter 326 , Florida Statutes .

PRELIMINARY STATEMENT

On July 11, 2016, Respondent denied Petitioner ' s application

for a yacht salesperson ' s license. Petitioner timely requested a

formal hearin g under chapter 120, Florida Statutes.

On October 3, 2016, Respondent referred the matter to DOAH ,

and the matter was assigned to Administrative Law Judge Robert L.

Kilbride.

On November 2, 2016 , Respondent filed a Motion to Relinquish

Jurisdiction, which was denied by the undersigned on November 21,

2016.

The case proceeded to a final evidentiary hearing on

December 14, 2016.

Petitioner testified on his own behalf and presented the

testimony of several witnesses: Beatriz Llorente (his sister),

Francisco P ines, Sandra Rico , and Lazaro R. Navarro.

Petitioner ' s Exhibits numbered 1 through 6 were admitted into

evidence. Respondent presented the testimony of Chelisa

Kirkland. Additionally, Respondent ' s Exhibits numbered 1

through 4 were admitted into evidenc e.

Based on the request of the parties, an extension of time to

file proposed recommended orders was granted on January 4, 2017.

A T ranscript of the final hearing was filed with DOAH on

December 2 7 , 2016.

Proposed recommended orders were timely received f rom the

parties and were considered by the undersigned in the preparation

of this Recommended Order .

References to the Florida Statutes are to the 2016 version,

unless otherwise indicated.

FINDING S OF FACT

Based on the stipulations of the parties, the oral and

documentary evidence , and the record as a whole, the following

Findings of Fact are made:

Stipulated Facts

1. Respondent is the state agency charged with enforcing

c hapter 326 , the Yacht and Ship Brokers Act, and the

a dministrative r ules promulgated thereunder.

2. On June 8, 2016, Petitioner submitted to Respondent an

application for a yacht s alesperson ' s license.

3. On Petitioner ' s application, the application question,

number 14, relating to criminal history, was answered " yes . "

4. Petitioner fai led to attach a complete and signed

statement of the charges and facts, together with the dates,

names , and location of the court in which the proceedings were

held or we re pending, as required by the application for the

yacht salesperson ' s license.

5. On October 12, 2012, Petitioner entered a plea of guilty

to conspiracy to commit bank and wire fraud, a felony, in the

United States District Court, Southern District of Florida, Miami

Division, in case number 1:1220156CR - UNGARO.

6. On October 12, 2012, Pet itioner was adjudicated

guilty of conspiracy to commit bank and wire fraud in case

number 1:1220156CR - UNGARO.

7. On October 12, 2012 , Petitioner was sentenced to

57 months ' incarceration in the custody of the United States

Bureau of Prisons in case number 1:1220156CR - UNGARO.

8. On October 12, 2012, Petitioner was sentenced to three

years of supervised release following incarceration in case

number 1:1220156CR - UNGARO.

9 . On October 12, 2012 , Petitioner was ordered to pay

$6,567,496.00 in restitution in ca se number 1:1220156CR - UNGARO.

10 . On April 22, 2016, Petitioner was released from

incarceration and placed under supervised release, set to expire

on or about April 21, 2019.

1 1 . Petitioner failed to certify to Respondent that

Petitioner has never been c onvicted of a felony in Petitioner ' s

application for a yacht salesperson ' s license.

1 2 . Petitioner timely received a copy of Respondent ' s

Notice of Intent to Deny License Application on July 19, 2016.

1 3 . Petitioner completed programs in Residential Drug Abuse

Treatment Program, the Wellness Program, and the Community

Treatment Services Program at Dollan Mental Health Clinic.

1 4 . Petitioner served his time without issue.

1 5 . Petitioner has been sponsored by a S outh Florida y acht

b roker who is going to s upervise his activity as a yacht

salesman.

Facts Adduced at the Hearing

1 6 . Pursuant to c hapter 326, Respondent has regulatory

jurisdiction over yacht and ship licensees and is responsible for

the approval or denial of applications for licensure for yacht

salespersons and yacht brokers.

1 7 . Petitioner ' s younger sister, Beatriz Llorente, who is a

practicing real estate and criminal defense attorney, testified.

1 8 . She described Petitioner as a " father figure " to her.

She testified that Petitioner ' s convi ction for conspiracy to

commit bank fraud " devastated " her, because she felt that her

r eputation was being questioned. 1/

1 9 . When she drove him to federal prison , Petitioner " asked

her for forgiveness . "

20 . She was familiar with his prison experience. A s far as

she knew, Petitioner had no disciplinary problems in prison and

was awarded maximum gain time. Furthermore, his 57 - month

sentence was reduced to less than two and one - half years.

2 1 . Despite his incarceration and current probation status,

she st ated that he is very active with his children and shares a

great deal of time with them.

2 2 . He told her , " I will work for the rest of my life to

regain your trust. " His sister is convinced that Petitioner has

overcome his faults , and she emphatically st ated he is of good

character .

2 3 . On cross - examination , she testified that Petitioner had

no drug or alcohol problems when he was growing up, but they

arose during the years preceding his conviction.

2 4 . An attorney friend of Petitioner ' s, Francisco Pine s,

testified. Pines has known Petitioner since 1988. They attended

school together.

2 5 . More recently, their families have interacted and spent

time together. They participated together in recreational

activities, such as boating and fishing, before Pe titioner ' s

incarceration for the federal crime.

2 6 . Since Petitioner was released from prison, Pines has

had contact with him three or four times.

2 7 . Pines was also asked about Petitioner ' s character. In

his view, Petitioner knows that what he did was wrong and ha s

made ch anges to get his life in order.

2 8 . Pines testified that Petitioner is very loving, caring

and nurturing with his children. The witness has seen a " change

for the better . " According to him, Petitioner ha s always

demonstrated a stron g work ethic, more so now than before the

criminal incident.

2 9 . A licensed mental health counselor, Sandra Rico, was

also called by Petitioner. Beginning in 2011, she provided

mental health therapy and counseling to Petitioner related to his

anxiety due to a crisis in his marriage . She determined that he

used and abused alcohol to relieve this anxiety.

30 . She treated him on and off until 2013. She also

emailed him while he was in federal prison to make sure that he

was getting continued treatment for his anxiety and alcohol abuse

issues.

3 1 . After he was released from prison, Rico counseled him

once a month from July 2016 through the f all of 2016. Her

current treatment with him is more in the nature of prevention

and maintenance, and to help him dev elop coping skills.

3 2 . She testified that the therapy he received in prison

helped him and that Petitioner changed while in prison. As

examples, she cited that he i s more involved and willing to do

more of her treatment assignments and that he now journ als his

feelings.

3 3 . Rico related that she is surprised by Petitioner ' s

progress and that she believes he is no longer drinking. He is

making better choices and being more careful.

3 4 . She opined that he gathers his thoughts more

deliberately now, prim arily because he wants to impress his

children and reach " goals " he has set for himself.

3 5 . In her opinion, he is of good character now. His

treatment with her continues " as needed . "

3 6 . Lazaro R. Navarr o is the chief executive officer at

Florida Yacht s Int ernationa l and manages approximately ten sales

associates.

3 7 . He has known Petitioner ' s family for over 15 years.

3 8 . When Petitioner was released from federal prison, the

family asked Navarro if he would consider employing Petitioner

and sponsori ng him. He gave Petitioner a job doing " online

marketing , " which involved managing leads and performing back

office work.

3 9 . Navarro characterized Petitioner as a great asset to

his company and trustworthy. He has no doubts about Petitioner

and his wor k habits. Petitioner arrives at work early and is

usually the last one to leave. Petitioner has exceeded all of

his expectations , and is a very dedicated employee.

40 . As the employing yacht broker, Navarro supervises

Petitioner and ensures that all of his work is done correctly.

Although no details were offered, Navarro testified that

Petitioner has accepted full responsibility for his criminal

conduct and is a great father.

4 1 . Based upon the financial procedures and protocols used

at Navarro ' s yacht company, he testified that Petitioner would

not need to handle or accept any cash as a part of his sales

responsibilities. Instead, finances and money exchanges are

handled and processed by a closing specialist and the chief

financial officer. 2/

4 2 . Nav arro commented that he would trust Petitioner with

money handling , if that occasion arose.

4 3 . Petitioner offered his own testimony. He received a

Florida real estate license in February 2005 and worked for his

cousin as a real estate salesperson until 2 008.

4 4 . He was indicted for conspiracy to commit bank and wire

fraud in March 2012. This federal indictment stemmed from

activities in 2006 while he worked as a licensed real estate

salesperson.

4 5 . He confirmed that he visit ed with Rico for mental

hea lth counseling related to problems with his wife , as well as

anxiety related to the government ' s criminal investigation of him

in 2009.

4 6 . Although his prison sentence did not include mandatory

alcohol or drug treatment, he followed the advice of a

psych iatrist at the prison and voluntarily enrolled in a

residential drug and alcohol abuse treatment program. He also

participated in a health and nutrition wellness class for nine

weeks. He completed both programs successfully.

4 7 . While in prison , he took several foreign language

classes , thinking they would be useful for the yachting business.

He also participated in a hazmat (hazardous materials) program

outside the prison on a naval base. Apparently, a Navy Admiral

retained him for the program. Also, while in prison, he was

hired on the naval base to provide cleaning and maintenance

services at a dormitory.

4 8 . He was allowed to serve a reduced prison sentence --

32 months of his 57 - month sentence , and h e was released six

months early to go to a halfw ay house. While there, he became

eligible for home confinement. He was released from home

confinement in April 2016.

49 . Although he is still under supervised release

(probation), he is no longer required to make personal visits and

can report to his pr obation officer remotely through the

Internet.

50 . He is jointly and severally liable for over $6 million

in restitution with the other defendants in his criminal case.

It was undisputed that he is current with his restitution

payments of $151 .00 each mo nth.

5 1 . Petitioner is active in his Catholic Church and gave

" his testimony " at a recent church retreat.

5 2 . He characterizes his relationship with his children as

being one of honesty and emphasized that it i s important to have

God in his life.

5 3 . Wh en Respondent called requesting additional

information for his application, he promptly provided his federal

Termination Report and Certificates of Completion. Pet. Ex s. 3,

4 , and 5.

5 4 . Petitioner expressed a passion for boating and believes

he is good at sales. He wants the yacht salesperson 's license,

in part, so that he can pay off the criminal restitution more

quickly.

5 5 . He claims to no longer act impulsively and believes

that his children are the most important thing in his life.

5 6 . On June 8, 2016, Petitioner submitted to Respondent an

application for a yacht and ship salesperson ' s lice nse.

5 7 . On Petitioner ' s application, he answered question

number 14 " Yes, " indicating that he had a criminal history. 3/

5 8 . Applicants who answer " Yes " to qu estion number 14 on

the application are directed to attach a complete and signed

statement of the charges and facts, together with the dates,

names , and location of the court in which the proceedings were

held or are pending. 4/

5 9 . However, Petitioner fai led to submit this statement.

When asked about this omission, Petitioner testified, " I turned

back for the next one (question), and I didn ' t bother looking.

It shows part of impulsive behavior. " Petitioner thought the

information request at the bottom o f the page he overlooked was

simply a part of the next question. 5/

60 . Respondent obtained a Florida Department of Law

Enforcement criminal background check on Petitioner, which

indicated that , on October 12, 2012, Petitioner pled guilty to

conspiracy to commit bank and wire fraud. Res p. Ex. 4.

6 1 . Certified court records obtained by the Division

indicated that Petitioner was adjudicated guilty of conspiracy to

commit bank and wire fraud in violation of 18 U . S . C . § 1349, a

felony, and sentenced to 57 mon ths ' incarceration in the custody

of the United States Bureau of Prisons with three years of

supervised release following incarceration. Petitioner was

ordered to pay $6,567,496 .00 in restitution. 6/

6 2 . Notably, Petitioner ' s federal " Judgment In A Crimin al

Case " included Special Conditions of Supervision. This included

a " Related Concern Restriction . " Petitioner testified that this

provision prohibited him from " touch[ing] funds " while under

supervised release. His employer at Florida Yacht Internation al

wrote a letter, ultimately filed with the probation office, that

Petitioner " would not be dealing with any funds . " Res p . Ex. 1,

p p . 1 - 7. 7/

6 3 . Petitioner certified on his application that ,

in February 2005, he was licensed as a real estate sales

assoc iate in the s tate of Florida, having been issued license

number SL3111375.

6 4 . Petitioner testified that , in order to become a real

estate sales associate , he completed a pre - licensing course;

applied with and was approved to take the state licensing exam by

the Department of Business and Professional Regulation; and

passed the Florida Real Estate Sales Associate Examination.

Petitioner stated that , at the time , he was familiar with the

laws regulating the profession of real estate contained in

c hapter 47 5 , Florida Statutes . 8/

6 5 . Petitioner testified that between 2005 and 2008, he

worked as a real estate sales associate for Llorente Realty

Group, under a supervising broker, Petitioner ' s cousin.

6 6 . While employed there as a Florida licensed real estate

sales associate, Petitioner engaged in an illegal real estate

fraud scheme which lead to his 2012 federal criminal conviction.

On several occasions, Petitioner provided up to $150,000 .00 of

his own funds to make seven or eight improper short - term loans of

approximately ten to 15 days each. Petitioner made a profit of

approximately eight to ten percent per loan. 9/

6 7 . Petitioner testified that these transactions involved

buying houses under an individual ' s name (the straw buyer) and,

after closing, execut ing a quitclaim deed to transfer title of

the property to one of the co - conspirators, to whom Petitioner

had made the loan. The property was subsequently transferred to

the co - conspirator ' s family trust, leaving the outstanding

mortgage in the name of the straw buyer. When the straw buyer

failed to pay the outstanding mortgage, the lender would initiate

foreclosure proceedings against the straw buyer who was no longer

in possession of the property .

6 8 . This fraudulent scheme was carried out against sever al

lending institutions. After the lenders became aware of the

scheme, a criminal investigation was initiated. The government

characterized his involvement as a breach of his fiduciary duty.

6 9 . I n mid - 2009, Petitioner was notified that he was under

fed eral investigation for his involvement in the " straw buyer "

scheme. After finding out about the investigation, Petitioner

began to have relationship problems with his wife and to abuse

alcohol. This prompted him to see Rico, a licensed mental health

coun selor.

70 . On March 8, 2012, Petitioner was indicted on eight

counts related to the bank fraud scheme. On October 12, 2012,

Petitioner entered a plea of guilty and was adjudicated guilty of

conspiracy to commit bank and wire fraud, a felony, in the Unite d

States District Court, Southern District of Florida, Miami

Division, in case number 1:1220156CR - UNGARO. Resp. Ex. 1.

7 1 . Petitioner was incarcerated at Pensacola Prison Camp

beginning March 1, 2013. Petitioner earned eight months ' " gain

time " off of h is sentence.

7 2 . Additionally, while incarcerated, Petitioner completed

the RDAP, Residential Drug and Alcohol Treatment Program, which

qualified Petitioner for a 12 - month reduction in his sentence.

Due to these reductions and good behavior, Petitioner s erved only

32 months of his 57 - month sentence in federal prison.

7 3 . During his incarceration, Petitioner also completed a

nine - week wellness course on various subjects such as nutrition

and exercise and worked at Naval Air Station Pensacola, Corry

Statio n Naval Technical Training Center, and the Pensacola Prison

Camp.

7 4 . On October 27, 2015, Petitioner was released to a

halfway house and shortly thereafter began working for Navarro at

Florida Yacht International as a clerk.

7 5 . O n November 10, 2015, Pe titioner became eligible for

home confinement, and , by April 18, 2016, Petitioner completed

TDAPT, a trans ition recovery program.

7 6 . On April 21, 2016, Petitioner was released from

custody , and , on April 22, 2016, he was placed under supervised

release, currently set to expire on April 21, 2019.

7 7 . Petitioner testified that he has paid $6,000 .00 towards

the restitution he owes in the amount of $6,567,496.00. As

previously mentioned, this restitution is owed with several co -

conspirators who are jointly and severally liable with him.

Resp. Ex. 1 , p. 5 .

7 8 . Petitioner testified that he is up to date on required

payments pursuant to the order of restitution.

7 9 . Navarro monitors and supervises Petitioner ' s work and

is ultimately responsible for Petitione r under his own yacht

broker license. Petitioner is also currently employed as a part -

time driver for Uber.

80 . In compliance with the Related Concern Restriction of

his criminal conviction, Petitioner has not been placed in a

position of trust or respon sibility over sums of money at Florida

Yachts International.

8 1 . Petitioner stated that upon obtaining a job as a clerk

with Florida Yachts International, Navarro was required to

certify to Petitioner ' s supervisors through the halfway house

that Petitione r " would not be dealing with any funds, " pursuant

to the " Related Concern Restriction " of Petitioner ' s Special

Conditions of Supervision. 1 0 / Res p . Ex. 1, p. 4; Res p . Ex. 4 ,

p. 51.

8 2 . Following his release from incarceration, Petitioner

continues to see Rico for therapy sessions on a monthly basis.

Rico provided a letter of recommendation for Petitioner.

8 3 . As mitigation and in an effort to show his good moral

character, Petitioner testified that he is not abusing alcohol

anymore, has made substantial efforts to reconnect with his

children, and has maintained a close relationship with his sister

both before and after his incarceration.

8 4 . Licensed yacht salespersons are not restricted and may

work under any licensed yacht broker . They may also switch their

registered broker if they wish to work for someone else.

Additionally, salespersons become eligible to apply for their own

yacht and ship broker license after two years as a salesperson.

8 5 . A representative of Respondent, Chelisa Kirkland,

testif ied for Respondent . A yacht salesperson 's license is only

required for the sale of used or pre - owned vessels in excess of

32 feet. Vessels less than 32 feet and new vessel sales of any

size do not require a license.

8 6 . Kirkland confirmed that Petitione r ' s probation, or

court supervision, does not end until April 2019.

8 7 . Applying the statutory and rule criteria, Respondent

denied Petitioner ' s application for a yacht salesperson 's

license. More specifically, Respondent was concerned about the

nature a nd seriousness of the federal crime, particularly because

Petitioner held a professional real estate license at the time

the criminal bank fraud offenses were committed.

8 8 . Additionally, as of the date of the application,

Petitioner ' s government supervis ion and probation had not been

completed , and there was a very significant amount of restitution

still owed, in excess of $6,000,000.00. Finally, Respondent felt

that there had not been a significant passage of time since the

conviction in 2012.

8 9 . As a result of the totality of these circumstances,

Kirkland recommended that Petitioner ' s application be denied.

She acknowledged that her recommendation was based solely on the

conviction for conspiracy to commit bank and wire fraud. She

conceded that Flor ida law does not impose an " automatic " denial

just because Petitioner owes restitution, is still under

supervision , or was convicted of a federal crime.

CONCLUSIONS OF LAW

9 0 . The Division of Administrative Hearings has

jurisdiction over the parties and t he subject matter of this

action pursuant to sections 1 20.57(1) and 120.60. Administrative

proceedings under c hapter 120 are a de novo review of the

agency ' s intended action. § 120.57(1)(k), Fla. Stat. As a

result, the evidence of Petitioner ' s moral cha racter is revisited

and considered anew by the undersigned based on the evidence

adduced at a hearing held under c hapter 120.

9 1 . Respondent denied Petitioner ' s application on the basis

that Petitioner had not sufficiently proven that he was of good

moral character. This conclusion was premised on Petitioner ' s

federal felony criminal conviction in October 2012 for conspiracy

to commit bank and wire fraud.

9 2 . Section 326.004(6)(a) authorizes Respondent to deny a

c hapter 326 yacht salesperson ' s license to an applicant who does

not furnish satisfactory proof th at he or she is of good moral

character.

9 3 . Florida Administrative Code Rule 61B - 60.003(3) outlines

the criteria to be used by Respondent to evaluate and determine

if good moral character has been e stablished by an applicant for

a yacht salesperson ' s license.

9 4 . T he r ule criteria contain the essential fabric and crux

of Respondent ' s basis for denial of Petitioner ' s application.

The r ule states, in pertinent part (underlining is added for

emphasis) :

(3) Review for Good Moral Character.

(a) When the application has been determined

to be in acceptable form, the division shall

evaluate the application and make appropriate

inquiry to determine the applicant ' s moral

character. For the purposes of thi s rule,

the following factors bear upon good moral

character:

1. The completion of a criminal history

check by the Florida Department of Law

Enforcement that reveals no convictions of a

felony , no convictions of a misdemeanor

involving moral turpitude, a nd no pleas of

nolo contendere, pleas of guilty, or verdicts

of guilty to a felony charge or of any non -

felonious offense involving moral turpitude,

fraud, theft, dishonesty, assault and

battery, or false statement; and

2. Civil lawsuits and administrati ve actions

bearing upon moral character (e.g., fraud,

misrepresentation, theft, assault and

battery); and

3. Applicant ' s prior history of unlicensed

brokering or sales activity in the State of

Florida subject to the provisions of

Chapter 326, F.S.; and

* * *

5. Other relevant information generated in

the course of the application process that

bears upon the applicant ' s moral character,

including but not limited to those acts

described by Section 326.006(2)(e) - (f) , F.S.;

and

6. Failure of the applicant to provide full

and complete disclosure, or to provide

accurate information, on the application for

licensure.

7. The foregoing factors shall be considered

in determining whether an applicant is of

good moral character for purposes of

licensure under Chapter 326, F.S., if they

comply with the following guidelines:

a. The disposition of criminal charges shall

be considered if such constitutes a felony ,

or if such constitutes a misdemeanor

involving moral turpitude, fraud, theft,

dishonesty, ass ault and battery, or false

statement.

b. The disposition of any administrative

action or of any civil litigation involving

fraud, misrepresentation, theft, assault and

battery, or moral turpitude shall be

considered if such results in a determination

aga inst the interests of the applicant.

c. Except as provided in sub - sub - paragraph

7.d. of this rule, no information relating to

criminal, administrative or civil actions

shall be considered if more than 5 years has

elapsed from the satisfaction of the term s of

any order, judgment, restitution agreement,

or termination of any administrative or

judicially - imposed confinement or supervision

of the applicant, whichever is more recent.

d. Any action, proceeding, or grievance

filed against the applicant, indivi dually or

otherwise, which relates to the applicant ' s

prospective duties, responsibilities, and

obligations of licensure under Chapter 326,

F.S., may be considered with no limitation as

to time.

e. Other considerations such as termination

of probation, c ompliance with and

satisfaction of any judgment or restitution

agreement may be considered as evidence of

rehabilitation of the applicant ' s good moral

character.

(b) Within 15 days after the division has

determined that the application is in

acceptable f orm, the division shall apply for

a criminal history record with the Florida

Department of Law Enforcement.

(c) After receipt of the criminal history

check, the division shall complete its

evaluation of the moral character of the

applicant. As used here in, " criminal history

check " shall include verification of the

nature and disposition of all criminal

charges and all civil or administrative

actions initiated against the applicant.

Specifically, the inquiry may include the

following:

1. National finge rprint processing;

2. Status as to any supervision of the

applicant (e.g., confinement, probation ,

community service requirements);

3. Status as to any restitution agreements;

4. Status as to any civil judgments or final

orders; and

5. Contact with arresting agencies and

responses to requests for clarification by

the division. The applicant shall assist the

division in acquiring the foregoing

information.

(d) If upon completion of its evaluation of

the moral character of an applicant, the

divisio n concludes that the applicant does

possess good moral character, the division

shall issue the applicant a license, upon

payment of all fees owed to the division, if

any.

(e) The effective date of the permanent

license will be the date that the temporary

license is actually issued by the division.

The expiration date of the permanent license

will be a date 2 years from date of issuance

of the temporary license.

(f) If upon completion of its evaluation of

the moral character of an applicant, the

divisio n concludes that the applicant does

not possess good moral character, the

division shall issue a notice of its intent

to deny the application. (emphasis added).

9 5 . The r ule above specifically incorporates section

326.006(2)(f). Therefore, this statute also bears upon a finding

of good moral character and may be considered by Respondent . The

statute subsection provides:

(f) The division may suspend or revoke the

license of a broker or salesperson who has:

1. Procured a license for himself or herself

or another by fraud, misrepresentation,

falsification, or deceit.

2. Been found guilty of a felony or a crime

of moral turpitude. ( e mphasis added . )

9 6 . It is against this regulatory backdrop that

Petitioner ' s application to obtain a yacht salesperson ' s license

should be evaluated and weighed by the undersigned in this " de

novo " review.

9 7 . Since administrative hearings under c hapter 120 are " de

novo , " the evaluation may, therefore, include facts and

observations not previously considered by the a genc y.

9 8 . Further, if the purpose of the c hapter 120

administrative hearing is to ferret out all the relevant facts

and to allow the " affected parties an opportunity to change the

agency ' s mind , " then, logically, it should be the credible and

persuasive fact s and observations adduced at the final hearing

that carry the day, and upon which any final action by the agency

is measured. See generally J.D. v. Fla. Dep ' t of Child & Fams . ,

114 So. 3d 1127 (Fla. 1st DCA 2013), citing Couch Const. Co. v.

Dep ' t of Tran sp. , 361 So. 2d 172 (Fla. 1st DCA 1978). See also

Caber Sys . , Inc. v. Dep ' t of Gen . Serv s. , 530 So. 2d 325, 334 n. 5

(Fla. 1st DCA 1988) .

9 9 . Other principles of law are equally applicable. The

general rule is that a party asserting the affirmative of an

issue (applying for a professional license and proving good moral

character) has the burden of presenting persuasive evidence as to

those points. Fla . Dep ' t of Transp . v. J.W.C. Co . , 396 So. 2d

778 (Fla. 1st DCA 1981).

100 . Thus, Petitioner had the burd en of persuasion to

present credible and persuasive evidence of his good moral

character and fitness for licensure. Likewise, it is equally

important for Petitioner to satisfactorily explain why evidence

relied on by Respondent is not credible or persuasi ve and should

not be relied upon by the undersigned in making a recommendation.

Dep ' t of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932,

934 (Fla. 1996).

10 1 . In Florida, an applicant for a professional license

ultimately bears the burden of persu asion at each and every step

of the licensure proceedings, regardless of which party bears the

burden of presenting certain evidence. Moreover, while the

burden of producing evidence may shift between the parties in an

application proceeding, when a dispu te arises, the burden of

persuasion remains with the applicant to prove his or her

entitlement to the license by a preponderance of the evidence.

10 2 . Notable as well in licensure cases, and of particular

interest in this case, is the Florida Supreme Cour t ' s reminder

that a regulatory agency has " particularly broad discretion " in

determining the fitness of applicants who seek to engage in an

occupation, the conduct of which is a privilege rather than a

right. Osborne , supra .

10 3 . This discretionary autho rity is particularly necessary

where an agency regulates occupations which are (1) practiced by

privilege rather than by right and (2) potentially injurious to

the public welfare. Astral Liquors, Inc. v. Dep ' t of Bus . Reg . ,

463 So. 2d 1130, 1132 (Fla. 198 5). 1 1 /

1 0 4 . On the other hand, in a license application

proceeding, the agency has the burden of proving specific acts of

misconduct by a preponderance of the evidence if it seeks to deny

a license application on that basis. M.H. v. Dep ' t of Child. &

Fam . Servs. , 977 So. 2d 755, 761 (Fla. 2d DCA 2008)( " [I]f the

licensing agency proposes to deny the requested license based on

specific acts of misconduct, then the agency assumes the burden

of proving the specific acts of misconduct that it claims

demonstrat e the applicant ' s lack of fitness to be licensed. " ).

Here, then, Respondent had the burden to prove Petitioner ' s

previous felony conviction existed to support its conclusion that

Petitioner should be denied the license for lack of good moral

character. 1 2 /

10 5 . In the context of professional and occupational

licensing, the question of what constitutes " good moral

character " is a question of fact for the trier of fact. Yeoman

v. Constr. Indus. Licensing Bd. , 919 So. 2d 542 (Fla. 1st DCA

2005) ; Palamara vs . Dep't of Bus. & Prof'l Reg. , 855 So. 2d 706,

708 (Fla. 4th DCA 2003) ; Bachynsky v. State Dep ' t of Prof 'l Reg . ,

471 So. 2d 1305 (Fla. 1st DCA 1985 ); and Village Zoo, Inc. v.

Div . of Alcoholic Beverages & Tobacco , 450 So. 2d 920, 921 (Fla.

4th DCA 1984). Consequently, it is for the undersigned to

determine this factual issue and recommend the proper disposition

of the case. Id.

10 6 . Finally, in licensure cases, neither the statutes nor

the rules categorically exclude an applicant from consideration

for l icensure due to a felony criminal conviction alone .

Palamara , supra at 708. However, as the Fourth District Court of

Appeals reminded in Palamara , the undersigned should not overlook

the serious felony conviction against Petitioner in 2012. And

while th e A dministrative L aw J udge must determine the factual

issue of Petitioner ' s moral character, the court commented that a

criminal judgment is " certainly strong evidence " regarding

Petitioner ' s moral character. Id.

10 7 . With these principles in mind, and considering the

respective burdens of proof, the undersigned draws several

additional conclusions from the evidence adduced at the hearing.

10 8 . Respondent has a legitimate interest in protecting the

public by screening applicants for yacht and ship sales person 's

licenses because applicants are in a position of fiduciary

responsibility to members of the public and are permitted to

collect escrowed funds on behalf of their broker. 1 3 /

10 9 . Petitioner offered seven letters with personal

observations regardin g Petitioner ' s general work ethic and

character. Two were written in 2012 and two came from witnesses

who testified at the hearing. However, the relevance and use of

the letters was limited because they were unsworn hearsay.

Likewise, the authors were n ot subject to cross - examination under

oath. T he letters were given the weight they deserve. 1 4/

1 1 0 . Petitioner did not present any disinterested witnesses

to persuasively describe or attest to Petitioner ' s good moral

character in business matters or tran sactions.

11 1 . While Beatriz Llorente, Pines , and Navarro all

testified and provided a good deal of insight regarding personal

attributes of Petitioner , the undersigned concludes that each had

a familial, financial , or long - standing friendship tie with

Pe titioner. There was an absence of compelling and persuasive

evidence offered by more neutral, impartial , or dispassionate

witnesses attesting to his good moral character, trustworthiness ,

or experience in business transactions.

11 2 . Despite commendable a nd laudable achievements while in

prison, and after his release from prison, it would be premature

to conclude that Petitioner has been fully rehabilitated from the

very serious federal crime he committed, which involved an

ongoing and repeated scheme, aff ecting multiple victims.

11 3 . This is particularly true since he is still under

supervised release (probation) , and an enormous amount of

restitution is still unpaid.

11 4 . While the progress and achievements made by Petitioner

are commendable, Petitioner has not persuasively demonstrated

that he has been sufficiently rehabilitated from a criminal

conviction entered less than five years ago.

11 5 . To conclude, in the face of a recent and very serious

felony conviction related to his illegal activities invo lving

multiple victims in another regulated industry, the evidence

presented by Petitioner was not sufficient to adequately

establish that he has presently attained the level of good moral

character required by the law.

RECOMMENDATION

Based on the foregoin g Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Florida Condominiums,

Timeshares, and Mobile Homes, confirm its previous denial and

enter a f inal o rder denying Petitioner ' s application for a yacht

salesperson 's license.

DONE AND ENTERED this 13th day of February , 2017 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

T he 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 13th day of February , 2017 .

ENDNOTE S

1/ Appar ently, the real estate closings related to the federal

conspiracy conviction took place at her law office, and her firm

records were subpoenaed by the government.

2/ Navarro testified that, as Petitioner ' s broker, he would

collect 50 percent of the reven ue for each yacht sold by

Petitioner, if Petitioner is granted a license.

3/ The undersigned concludes that this fulfilled any obligation

he had to certify that he did, or did not, have a felony

conviction .

4/ It is reasonable to infer from the evidenc e that this is done

for several reasons. It gives Respondent more detail and

background information regarding the conviction and underlying

facts. It also helps them to assess the applicant ' s

forthrightness and honesty. Finally, the written statement gi ves

the agency an indication of the level of rehabilitation that has

been achieved by the applicant.

5/ The undersigned does not find this explanation persuasive,

particularly in light of the serious, important , and formal

nature of the application. Fur ther, to the best of the

undersigned ' s recollection, Petitioner never provided the

detailed signed statement as required by the application.

6/ Petitioner testified that this restitution amount is a joint

and several liability with other defendants in th e criminal case .

7/ The criminal judgment expressly prohibited Petitioner from

owning, operating, being employed in , or participating in any

manner in " any related concern " during the period of his

supervised release (running until April 2019). It does not

simply prohibit him from handling money. Rather, it extends to

prohibiting involvement in any related industry. While this

phrase is not defined and clarifying evidence was not offered, it

is reasonable to conclude that professional sales in any

regu lated industry would likely qualify as a prohibited related

concern.

8/ Significantly and despite his training, it was during his

tenure as a Florida licensed and regulated real estate

salesperson, that Petitioner disregarded the law and committed

the re al estate fraud for which he plead and was convicted in

2012.

9/ These illegal loans formed the basis of the federal

government ' s criminal charges against him.

1 0 / It is noteworthy that Petitioner is required to comply with

the Special Conditions of Su pervision until he is released from

supervision in April 2019.

1 1 / The utilization of a yacht salesperson license qualifies

under both of these standards.

1 2 / The federal conviction for conspiracy to commit bank fraud

was conclusively proven by Respond ent . Palamara v. Dep't of Bus.

& Prof 'l Reg. , 855 So. 2d 706, 708 (Fla. 4th DCA 2003 ).

1 3 / Although Navarro testified that his company's financial

protocols would guard against this, there is nothing that would

legally prevent this from changing in the future. Nor is there

anything to prevent Petitioner fr om working elsewhere after

obtaining his license.

1 4 / From an Florida Evidence Code standpoint, none of the letters

address or relate to Petitioner's reputation for truthfulness or

veracity (to suppo rt the credibility of Petitioner's testimony),

nor do they address his character reputation in the community or

among associates as required by section 90.803(21), Florida

Statutes. Rather, they were personal observations of the writer.

Without these pre dicates being laid, the hearsay letters of

individual support were of limited value.

COPIES FURNISHED:

Michael Ramer Karcher, Esquire

Karcher, Canning & Karcher

760 Northeast 7th Avenue

Dania, Florida 33004 - 2502

(eServed)

Megan S. Silver, Esquire

Depa rtment of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Robin E. Smith, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Kevin Stanfield, Director

Divisi on of Florida Condominiums,

Timeshares and Mobile Homes

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

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.