17-001855 Victor Rothaar vs. Florida Real Estate Commission Status: Closed Recommended Order on Wednesday, July 26, 2017.

Summary: Petitioner demonstrated a sufficient lapse of time and subsequent good conduct since his criminal offense. Therefore, his application should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOR ROTHAAR,

Petitioner,

vs. Case No. 17 - 1855

FLORIDA REAL ESTATE COMMISSION,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 31, 2017, Administrative Law Judge Yolonda Y. Green,

of the Division of Administrative Hearings (ÐDivisionÑ),

conducted a duly - noticed final hearing by video teleconference

at sites located in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Victor Walter Rothaar, p ro se

1931 South 350 East

Bountiful, Utah 84010

For Respondent: Tom L. Barnhart, Esquire

Robert S. Milne, Esquire

Office of the Attorney General

The Capi tol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether PetitionerÓs application for licensure as a real

estate broker should be approved or denied.

PRELIMINARY STATEMENT

On January 12, 2017, the Department o f Business and

Professional Regulation, Florida Real Estate Commission

(ÐRespondentÑ or ÐCommissionÑ) , issued a N otice of Intent to Deny

(ÐNOID Ñ) , thereby notifying P etitioner (ÐPetitionerÑ or

ÐMr. RothaarÑ) of the CommissionÓs intent to deny his applicati on

for licensure as a real estate broker. A s reasons for denial,

the NOID alleged Petitioner violated the following: sections

475.17(1)(a), 475.25(1)(f) , and 455.201, Florida Statutes (2016) .

On or about January 17, 2017 , Petitioner received the NOID .

On February 2, 2017, Petitioner requested a final hearing to

dispute the reas ons for the denial in the NOID . The Commission

referred this matter to the Division to assign an Administrative

Law Judge to conduct the final hearing.

On March 24, 2017, this ma tter was referred to the Division

and assigned to the undersigned to conduct the final hearing.

On April 3, 2017, the undersigned issued a Notice of Hearing

scheduling this matter for May 31, 2017, by video teleconference

in Tallahassee and Orlando, Flor ida. The hearing was held as

scheduled.

At the final hearing, Petitioner testified on his own

behalf. PetitionerÓs Exhibits P - 1, P - 2, P - 4 , and P - 5 were

admitted in evidence over objection; Exhibit P - 3 was not

admitted. Respondent did not present any w itnesses. Respondent

offered Exhibit R - 1 , of which pages 20 - 25 were excluded,

otherwise , the exhibit was admitted.

Respondent requested a copy of the hearing transcript. The

one - volume Transcript of t he proceeding was filed on June 27,

2017. The deadli ne to file proposed recommend ed orders was

July 7, 2017. Respondent timely filed a Proposed Recommended

Order, which has been considered in preparation of this

Recommended Order. Petitioner , however, has not filed any post -

hearing submittal.

All statut ory references shall be to the 2016 Florida

Statutes, unless otherwise indicated. 1 /

FINDING S OF FACT

Based on the testimony and documentary evidence presented in

this proceeding, the following Findings of Fact are found:

1. Respondent is the state agenc y charged with regulating

the practice of real estate in the State of Florida, pursuant to

section 20.165, chapters 455 and 475, Florida Statutes.

2. Petitioner seeks to obtain a real estate broker license

to practice real estate in Florida.

3. Petition er is a resident of the State of Utah and has

held an active real estate broker license in Utah for at least

24 months during the preceding five years from the date of his

application.

4 . In 2003, Peti tioner was first licensed in Utah as a real

estate s ales agent. On February 12, 2007, Petitioner was issued

a real estate broker license , and hi s limited - liability company,

Ultimate Homes of Utah, LLC, was licensed as a real estate

company in Utah.

5 . On July 28, 2016, Petitioner submitted an on - line

appl ication for a Florida real estate b roker license. The

application included a section which requested background

information. Question No. 1, one of the four questions on the

application, requested information about PetitionerÓs criminal

history. Specifi cally, Question No. 1 requested in pertinent

part the following: ÐHave you ever been convicted or found

guilty of, or entered a plea of nolo contendere or guilty to,

regardless of adjudication, a crime in any jurisdiction, or are

you currently under crimi nal investigation?Ñ

6 . The application also directed applicants, who responded

ÐyesÑ to Question No. 1, to provide details regarding any

criminal offense, including description of the offense, offense

type, penalty or disposition , and whether sanctions h ave been

satisfied for each offense.

7 . In his application, Petitioner answered Qu estion No. 1

affirmatively. He disclosed that he plead guilty to one count of

aggravated sexual a buse of a c hild , a first - degree f elony , on

July 5, 1995. The criminal of fense occurred in Utah. Further

details of the criminal offense will be discussed below.

8. Petitioner ap peared, pro se, at the December 14, 2016,

Commission meeting where his applicat ion was considered. On

January 12, 2017, Respondent entered a NOID , w hich stated a

number of grounds for the intent to deny PetitionerÓs

application.

9. RespondentÓs NOID recited key f indings of fact 1 and 4 ,

and key conclusions of law D, G, and M, as grounds for its

proposed denial of PetitionerÓs application. Those k ey findings

and co nclusions, as set forth on the K ey for License Denials,

attached to RespondentÓs NOID , are as follows:

1. Crimes in Application. ApplicantÓs

criminal record is as revealed in

application.

* * *

4. Unpersuasive Testimony. Appli cantÓs

testimony or evidence in

explanation/mitigation was unpersuasive.

* * *

D. Having been denied licensure or having

a license to practice any regulated

business, profession or vocation, for

conduct which would constitute a vio lation

of this Chapter. 475 .179 1) [sic] , 475.181

F.S.

* * *

G. Convicted or found guilty or entered a

plea of nolo contendere to, regardless of

adjudication, a crime which directly

relates to activities of a licensed broker

or sales associate or involves moral

turpitude or fraudul ent or dishonest

dealing. 475.25(1)(f), 475.181 F.S.

* * *

M. The Commission concludes that it would

be a breach of its duty to protect the

health, safety and welfare of the public to

license this applicant and thereby provide

him easy access to the ho mes, families or

personal belongings of the citizens of

Florida. 455.201, F.S.

10. R egarding the circumstances of PetitionerÓs criminal

offense , on December 13, 1994, a n Information was filed by the

County Attorney for Circuit Court of Davis County, State of

Utah, which charged Petitioner with three counts as follows:

Count One: rape of a child, a first degree

felony: On or about July 30, 1993,

Petitioner engaged in sexual intercourse

with a child under 14 years of age.

Count Two: Sodomy Upon a Child, a first

degree felony: On or about July 30, 1993,

Petitioner engaged in a sexual act involving

the genitals of the actor and the child

under the age of 14 and the mouth or anus of

either person.

Count Three: Rape of a Child, a first

degree fel ony: On or about August 13, 1993,

Petitioner had sexual intercourse with a

child who is under the age of 14.

11. The victim involved in the criminal offense was a

13 - year - old female , while Petitioner was 21 years old.

12 . Petitioner u ltimately ple d guilty to one count of

aggravated sexual abuse of a child . On July 5, 1995, Petitioner

was sentenced to an indeterminate term of three years to life,

fined $2,000, and ordered to pay restitution for costs of the

victimÓs counseling. The court also recom mended that Petitioner

participate in a specialized sex offender treatment program.

Petitioner served four years Ó imprisonment , followed by five

years of parole. Petitioner was released from prison in 1999 .

Following PetitionerÓs release from prison, he was required to

register as a sex o ffender and remained on the registry until

October 10, 2015.

13 . At hearing, Petitioner expressed remorse for his

actions , and acknowledged that the facts of the offense were

accurately described in the filed Informatio n. According to

Petitioner, the events giving rise to the criminal offense began

with his childhood. Petitioner described his childhood as one

where he did not have a close relationship with his parents and

did not receive affection from them. That lack of affection

affected him to the extent that he was Ðlove - starved.Ñ

Petitioner explained that Ðwhen he was 21 years old, a 13 - year -

old girl expressed interest in him and he made the mistake of

pursing her as a love interest.Ñ

14 . After his release from prison, Petitioner worked in the

food service industry until he lost his job in 2002. Thereafter,

h e pursued a career working in real estate.

15 . During the time Petitioner has held a real estate

license in Utah, he has earned various certifications r elated to

real estate including, e - Pro Certification (2004), Distressed

Property Expert (2011 - 2012), Short Sales and Foreclosure Resource

Certification, and Residential Specialist Certification.

16 . Petitioner was given the opportunity to submit letters

of recommendation to show evidence of his reputation, honesty,

truthfulness, trustworthiness , and good character. Petitioner

offered several letters from past customers and business partners

to attest to his work ethic, responsibility , and trustworthines s

in real estate dealings . T hose letters are of limited value as

it relates to moral turpitude and rehabilitation because the

authors of the letters had no knowledge of PetitionerÓs criminal

history.

17 . PetitionerÓs testimony regarding his otherwise

blemish - free criminal history since the incident , employment

history, and achievements since the criminal offense is found to

be credible.

18. Petitioner acknowl edged in his testimony at the final

hearing that what he did in 1993 was wrong . He has not at tempted

to hide the incident from Respondent as he disclosed the details

of the incident on his application. It is undisputed that he

completed a sex offender treatment program, completed his

probation, and was released from the requirement to register on

the Utah sex offender registry in 2015 . Furthermore, t here is no

evidence that Petitioner has been involved in any criminal

activity since the criminal offense in 1993, nearly 25 years ago.

19. In his testimony, Petitioner also highlighted his

qualifica tions as a broker , which were corroborated by the

letters of support from PetitionerÓs former clients that were

offered at the hearing. Petitioner is a father of three

children, has been married for more than 20 years, has been a

licensed real estate brok er in the state of Utah for 14 years,

and has not exhibited a pattern or practice of violations before

or after the incident in 1993. Rather, the incident in 1993

stands alone as the only blemish on PetitionerÓs record.

20. No evidence was presented a t hearing of any prior

discipline against RespondentÓs license in any jurisdiction .

CONCLUSIONS OF LAW

21 . The Division has jurisdiction over the parties to and

the subject matter of this proceeding pursuant to section 120.569

and 120.75(1), Florida Statu tes (2016) .

22. Respondent is authorized to certify for li censure as a

real estate broker any applicant who satisfies the requirements

of section 475.17 . See § 475.181, Fla. Stat.

23 . Petitioner bears the ultimate burden of proving his

entitlement to a license. Fla . DepÓ t of Transp. v. J.W.C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner must prove

by a preponderance of the evidence that he satisfied relevant

statutory criteria to be licensed as a real estate broker in

Florida.

24. S ectio n 475.17(1)(a) describes the qualifications for

licensure of a real estate professional and provides in pertinent

part:

An applicant for licensure who is a natural

person must be . . . honest, truthful,

trustworthy, and of good character; and have

a good r eputation for fair dealing. An

applicant for an active brokerÓs license or a

sales associateÓs 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 a pplicant may undertake a

relationship of trust and confidence. If the

applicant has been denied registration or a

license or has been disbarred, or the

applicantÓs registration or license to

practice or conduct any regulated profession,

business, or vocat ion has been revoked or

suspended, by this or any other state, any

nation, or any possession or district of the

United States, or any court or lawful agency

thereof, because of any conduct or practices

which would have warranted a like result

under this ch apter, or if the applicant has

been guilty of conduct or practices in this

state or elsewhere which would have been

grounds for revoking or suspending her or his

license under this chapter had the applicant

then been registered, the applicant shall be

deem ed not to be qualified unless, because of

lapse of time and subsequent good conduct and

reputation, or other reason deemed

sufficient, it appears to the commission that

the interest of the public and investors will

not likely be endangered by the granting of

registration. The commission may adopt rules

requiring an applicant for licensure to

provide written information to the commission

regarding the applicantÓs good character.

25. Section 475.181 authorizes the Commission to certify

certain applicants for licensure and provides in pertinent part:

(2) The commission shall certify for

licensure any applicant who satisfies the

requirements of ss. 475.17, 475.175, and

475.180.

26 . Section 475.25 (1) authorizes Respondent to deny an

application for licens ure if it finds that the applicant

(f) Has been convicted or found guilty of,

or entered a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

activities of a licensed broker or sales

associat e, or involves moral turpitude or

fraudulent or dishonest dealing. The

record of a conviction certified or

authenticated in such form as to be

admissible in evidence under the laws of

the state shall be admissible as prima

facie evidence of such guilt.

( g) Has had a brokerÓs or sales associateÓs

license revoked, suspended, or otherwise

acted against, or has had an application for

such licensure denied, by the real estate

licensing agency of another state,

territory, or country.

27 . To determine whether a conviction for aggravated sexual

abuse of a child is directly related to the practice of or the

ability to practice real estate, that question has not been

limited to the technical ability of Petitioner to be a real

estate broker . If the crime relates to or presents a danger to

public welfare, that in itself would be sufficient grounds to

deny a license . As stated by the First District:

Several cases demonstrate that, although the

statutory definition of a particular

profession does not specifically refer to

acts involv ed in the crime committed, the

crime may nevertheless relate to the

profession. In Greenwald v. Department of

Professional Regulation , the court affirmed

the revocation of a medical doctor's license

after the doctor was convicted of

so licitation to commit first - degree murder.

501 So. 2d 740 (Fla. 3d DCA 1987). The

Fifth District Court of Appeal has held that

although an accountantÓs fraudulent acts

involving gambling did not relate to his

technical ability to practice public

accountin g, the acts did justify revocation

of the accountantÓs license for being

convicted of a crime that directly relates

to the practice of public accounting. Ashe

v. D epÓt of ProfÓl Regulation, Bd. o f

Accountancy , 467 So. 2d 814 (Fla. 5th DCA

1985). We held in Rush v. Department of

Professional Regulation, Board of Podiatry ,

that a conviction for conspiracy to import

mariju ana is directly related to the

practice or ability to practice podiatry.

448 So. 2d 26 (Fla. 1st DCA 1984). These

cases demonstrate, in our view, that

appellee did not err by concluding Doll's

conviction was Ðrelated toÑ the practice of

chiropractic medicine or the ability to

practice chiropractic medicine.

Doll v. DepÓt of Health , 969 So. 2d 1103, 1106 (Fla. 1 st

DCA 2007) .

28 . Responde ntÓs behavior in engaging in aggravated sexual

abuse of a child shows total disregard for one of the most

vulnerable members of our population. It is the lack of respect

for and exploitation of another , for personal pleasure, that

demonstrates impaired ju dgment . PetitionerÓs crime directly

relates to the practice of real estate.

29 . PetitionerÓs crime also involves moral turpitude. The

Supreme Court once defined a crime of moral turpitude as a crime

that is evidenced by an act of baseness, vileness, or depravity

in the private and social duties, which, according to the

accepted standards of the time a man owes to his or her fellow

man or to society in general. The act itself , and not its

prohibition by statute , fixes the moral turpitude. See State ex

r el. Tullidge v. Hollingsworth , 108 Fla. 607, 611, 146 So. 660,

661 (1933). T he crime for which Respondent was convicted would

be repugnant by any standards. The crime certainly raise s

substantial doubts as to PetitionerÓs honesty, fairness, and

respect f or the rights of others and for the laws of his home

state and other states, such as Florida.

30 . Here, Petitioner wa s convict ed of aggravated sex abuse

of a child and the victim of the crime was a 13 - year - old child .

At age 13, the vulnerability of the v ictim is exacerbated by

PetitionerÓs age of 21. PetitionerÓs crime was a deviation from

the standard of conduct acceptable in the community and was a

depraved act. The depraved nature of the act arose from

explo iting a minorÓs vulnerability. As such, Pe titionerÓs crime

clearly involves moral turpitude.

31 . Although PetitionerÓs crime may have served as grounds

to disqualify him for a real estate license, he has demonstrated

that the interest of the public and investors will not likely be

endangered i f he is granted a license.

32 . Respondent argued in its Proposed Recommended Order

that Petitioner has not met his burden of proving he is

rehabilitated. Respondent argued that Petitioner presented no

disinterested witnesses to support his claims of g ood moral

character, honesty, trustworthiness, and truthfulness and relied

upon Taylor v. Departmen t of Business and Professional

Regulation, Florida Real Estate Commission , Case No. 06 - 3036

( Fla. DOAH January 9, 2007; Fla. DBPR March 22, 2007) . However,

that case is distinguished from this matter . In Taylor ,

Petitioner offered the testimony of a friend to attest to her

good character. She did not offer witnesses or letters from

disinterested persons.

33 . Here, Petitioner has offered letters from busi ness

partners and customers attest ing to his good moral character and

his reputation for fair and honest dealings in real estate

transactions. Further , he has been gainfully employed in the

real estate arena for 14 years with access to the homes of

custom ers without any complaints. Petitioner has met all

conditions of his sentence and has been released from his

requirement to register as a sex offender. Further more , there

has been a substantial passage of time since his criminal

offense , nearly 25 year s ago . The g reater weight of evidence

establishes that t he criminal offense was an isolated incident

rather than part of a pattern of similar conduct , which is a

relevant factor when considering whether he w ould be a danger to

the public . Respondent did no t offer evidence of misconduct or

lack of good moral character since the incident in 1993 to rebut

PetitionerÓs evidence that he will not pose a thr eat to the

public and investors . Thus , his application should be approved.

34 . There was no evidence off ered at hearing that

Petitioner had a real estate brokerÓs or sales associateÓs

license disciplined or denied by any jurisdiction. Therefore,

this factor should not be considered when determining whether

PetitionerÓs application should be approved or deni ed.

35 . Based on the foregoing, Petitioner met his burden in

this case to prove that he meets the requirements for a real

estate broker license , that he is rehabilitated, and that he will

not pose a threat to the public and investors. Therefore,

Petition erÓs real estate broker license application should be

approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Real Estate

issue a final order approving Victor RothaarÓs appl ication for

licensure as a real estate broker.

DONE AND ENTERED this 26 th day of July , 2017 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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 26 th day of July, 2017 .

ENDNOTE

1/ PetitionerÓs applic ation for licensure is governed by the law

in effect at the time the final licensure decision is made.

See Lavernia v. DepÓt of ProfÓl Reg. , 616 So. 2d 53, 54 (Fla.

1st DCA 1993); See also Bruner v. B d . of Real Estate , 399 So. 2d

4, 5 (Fla. 5th DCA 1981).

COPIES FURNISHED:

Tom L. Barnhart, Esquire

Robert S. Milne, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Victor Walter Rothaar

1931 South 350 East

Bountiful, Utah 84010

(eServed)

Cla ude "Chip" Boring, III, Chair

Florida Real Estate Commission

Department of Business

and Professional Regulation

400 W est Robinson Street, Suite N801

Orlando, Florida 32801

Jason Maine, General Counsel

Department of Business

and Professional Regulat ion

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submi t 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.