19-000509 Milain David Fayulu vs. Florida Real Estate Commission Status: Closed Recommended Order on Wednesday, June 5, 2019.

Summary: Petitioner's past conviction in the District of Columbia for simple assault is not directly related to the activities of a real estate sales associate and thus is not grounds for denial of Petitioner's application for licensure.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILAIN DAVID FAYULU ,

Petitioner,

vs. Case No. 1 9 - 0 509

FLORIDA REAL ESTATE COMMISSION ,

Respondent.

_______________________________/

RECOMMENDED ORDE R

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

March 2 1 , 201 9 , at sites in Tallahassee and Miami , Florida.

APPEARANCES

For Petitioner: Milain D . Fayulu , pro se

5880 Southwest 91st Street

Miami, Florida 33156

For Respondent: Marlene K. Stern , Esquire

Lawrence D. Harris, Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Tallahassee , Florida 3 2399

STATEMENT OF THE ISSUE

The issue in this case is whether the crime of which

Petitioner was convicted in the District of Columbia, namely

simple assault under that jurisdiction's law, directly relates

to the activities of a real estate sales associate, thereby

warranting Respondent's intended decision to deny Petitioner's

application for licensure as a sales associate .

PRELIMINARY STATEMENT

By a Notice of Intent to Deny dated November 2 9 , 201 8 ,

Respondent Florida Real Estate Commission informed Petitioner

Milain David Fayulu that it planned to deny his ap plication for

licensure as a real estate sales associate. Attached to the

notice was a Key for License Denials, in which Respondent

identified the following findings of fact and conclusions of law

as the grounds for its intended decision :

Findings of Fact

[1.] Applicant ' s criminal record is as

revealed in application.

[2.] Applicant ' s testimony or evidence in

explanation/mitigation was unpersuasive.

[3.] Applicant ' s criminal history is recent

in time.

[4.] Applicant is a convicted felon.

Conclusions of Law

[5.] [Applicant] engaged in conduct or

practices which would have been grounds for

revoking or suspending a real estate

license. [§§] 475.17(1)(a), 475.181, F.S.

[6.] [Applicant was] convicted or found

guilty or entered a plea of no lo contendere

to, regardless of adjudication, a crime

which directly relates to the activities of

a licensed broker or sales associate or

involves moral turpitude or fraudulent or

dishonest dealing. [§§] 475.25(1)(f),

475.181, F.S.

[7.] Applicant has no t had sufficient lapse

of time, without government supervision, to

establish rehabilitation by being crime

free.

[8.] 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 a pplicant and thereby provide

him/her easy access to the homes, families

or personal belongings of the citizens of

Florida. [§] 455.201, F.S.

A t bottom, these grounds were predicated on Mr. Fayulu ' s having

been convicted of simple assault in the Superior Court of the

District of Columbia in January 2016, which is a misdemeanor

crime under D.C. Code section 22 - 404(a)(1). Mr. Fayulu is not,

in fact, a convicted felon, contrary to Respondent ' s finding, as

Respondent admitted at hearing.

The hearing took pl ace as scheduled on March 21, 2019 , with

both parties present. Mr. Fayulu testified on his own behalf

and called Mr. Steeven Ottou as a witness . Petitioner's

Exhibits 5 , 6, 8 through 10, and 12 through 21 were received in

evidence.

Respondent called no w itnesses, but offered Respondent ' s

Exhibit s 1A, 1 B, 2, 3, 4A, 4B, 5, and 6 , which were admitted.

After the hearing, on April 9, 2019, Respondent filed an

affidavit whose purpose is to authenticate Respondent's

Exhibits 4A and 4B as the business records of an out - of - state

physician. Respondent's motion to accept this late - filed

authentication is hereby granted.

The final hearing transcript was filed on April 9 , 201 9 .

The deadline established at hearing for filing p ropose d

r ecommended o rder s was April 24 , 201 9. Respondent timely filed

its Proposed Recommended Order on April 24, 2019 .

Unless otherwise indicated, citations to the official

statute law of the S tate of Florida refer to Florida Statutes

201 8 .

FINDINGS OF FACT

1. Respondent Florida Real Estate Commission ( " FREC " ) is

authorized to certify for licensure persons who are qualified to

practice as real estate brokers and sales associates in the

s tate of Florida.

2. On September 11, 20 18 , Petitioner Milain David Fayu lu

( " Fayulu " ) applied for licensure as a real estate sales

associate.

3. In his application, Fayulu truthfully answered the

question asking whether he had ever been convicted of a crime.

Fayulu disclosed that he had been convicted of simple assault in

the District of Columbia as the result of " [a]n altercation with

a fellow student at American University in Washingt on DC, " which

had occurred on April 7, 2014. He further reported that he had

completed all term s of sentence, which included one year of

probation and 100 hours of community service. Fayulu did not

mention that he also had been sentenced to 180 days of

incarceration, the execution of which had been suspended, but

FRE C has not faulted him for this.

4. The Judgment of conviction entered on January 15, 2016,

by the Superior Court of the District of Columbia in United

States v. Fayulu , Case No. 2014 - CF2 - 006367, confirms that Fayulu

pleaded guilty to one count of simple assault and received the

sentence just described.

5. As evidence of what happened on April 7, 2014, FREC

relies almost entirely on the Affidavit in Support of a n Arrest

Warrant (the " Arrest Report " ), which was subscribed and sworn to

on April 10, 2014, by a D istrict of Columbia law enf orcement

officer whose name is illegible (the " detective " ). According to

the Arrest Report, the detective interviewed three people in

preparing his description of the incident: the arresting

officer, the complainant, and a witness to the offense. To the

extent relevant, 1 / howeve r , the entire narrative of the Arrest

Report (the " Probable Cause Allegations " ) , with one possible,

but largely imm aterial exception, 2 / is hearsay that is neither

admissible pursuant to a recognized exception to the hearsay

rule, nor corroborative of any competent, persuasive, nonhearsay

evidence in the record that needs to be supplemented or

explained. 3 / Thus, the Arrest Report is not competent

sub stantial evidence of the truth of the matters concerning the

offense asserted therein. 4 /

6. The Ar rest Report is not hearsay evidence of one fact,

however; namely, that the prosecutor , and the judicial officer

who approved the issuance of an arrest warrant , concluded (along

with the detective) that the Probable Cause Allegations

justified a charge of aggravated assault while armed ( " AAWA " )

und er D.C. Code section 22 - 404.01 ÏÏ a far more serious offense 5 /

than the simple assault of which Fayulu ultimate ly would be

convicted. 6 / This means that the government did not need to

prove all of the Probable Cause Allegations ÏÏ and, for all we

know based on the instant record, could not have proved t hem

beyond a reasonable doubt ÏÏ to obtain Fayulu ' s conviction.

7. The actual charging document containing the

government ' s formal allegations against Fayulu is not in

evidence. Nor is the transcript of the plea colloquy. As a

result, the undersigned cannot make any findings regarding the

specific factual admissions Fayulu made when he pleaded guilty

to the simple assault charge. To be clear, Fayulu ' s guilty plea

is not an admission to the truth of the Probable Cause

Allegations in their entirety, for , as just explained, the

government did not have the burden of pro ving those allegations

in toto to support a simple assault conviction.

8. If this sounds like hair - splitting, it is only because

the undersigned has not recited (and will not repeat) the

unproved Probable Cause Allegations . To be sure, i t is

extremely tempting to evaluate Fayulu ' s testimony against the

backdrop of the alarming Probable Cause Allegations and to

conclude that he is being cagey or unforthcoming about what

really happened during the incident that led to his arrest and

conviction. This is b ecause the Arrest Report enjoys unearned

credibility , probably owing to a general respect for law

enforcement, whereas Fayulu ' s testimony, which depicts the

incident in a much less malevolent light (as perpetrators do , we

imagine ) , is readily, albeit unfai rly, presumed to be self -

serving . FREC ' s intended decision to deny Fayulu ' s application

is , in fact, based on the premise that, as a matter of

historical fact, Fayulu behaved as described in the Arrest

Report , even though there is no competent substantial evidence

in the record proving the Probable Cause Allegations .

9. Fayulu tried to make this legal point in the

proceedings before FREC, but ÏÏ not being a lawyer and

representing himself ÏÏ he did so somewhat clumsily and manag ed

mostly to come off sounding like he had something to hide. At

hearing, after some prodding, Fayulu testified that on the

evening of April 7, 2014, he and his two roommates were in a car

heading home from the library, where they had been studying,

when the alleged victim (th e complainant ) approached their

vehicle, which was stopped at the exit from the library ' s

parking lot as the driver waited for a break in traffic to pull

out onto the street. The complainant spit on the driver through

an open window. The driver parked th e car and the three men got

out. They began yelling at the complainant.

10. According to Fayulu, the complainant threw the first

punch, so to speak, which triggered a brawl that lasted for two

or three minutes. Fayulu was directly involved in the fight,

which was violent and caused the combatants to fall to the

ground. Fayulu and his friends then decided to stop the

altercation. The complainant, who afterwards remained standing

on the side of the street, " seemed perfectly fine " and was " in a

physically decent condition " in Fayulu ' s opinion , having been

neither bloodied nor knocked unconscious during the affray .

Fayulu and his two companions walked back to their car and left .

11. Fayulu ' s account of the incident provides a sufficient

basis in fact to support a conviction for simple assault under

D.C. law, which is analogous to misdemeanor battery under

section 784.04, Florida Statutes . Fayulu ' s testimony about what

happened is not inherently unbelievable, moreover, and t here is

no competent substan tial evidence in the record refuting his

version of the event . While it is likely that Fayulu has tried

to put himself in the best possible light consisten t with the

truth, and despite some obvious testimonial ducking and weaving,

the undersigned cannot f ind that he intentionally lied . At any

rate , if it weren ' t for Fayulu ' s evidence about the facts and

circumstances comprising the underlying offense (as opposed to

the fact of his conviction, which is undisputed), there would be

none at all.

CONCLUSIONS OF LAW

12 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

sections 120.569 and 120.57(1), Florida Statutes.

1 3 . As an applicant for licensure, Fayulu bore the burden

at hearing of going forward initially with proof of his

qualifications; he also must shoulder the ultimate burden of

persuasion. See Dep ' t of Banking & Fin., Div. of Sec s . &

Investor Prot . v. Osborne Stern & Co. , 670 So. 2d 932, 934

(Fla. 1996).

14 . FREC has burdens, too. Section 120.60(3) provides as

follows:

(3) Each applicant shall be given written

notice, personally or by mail, that the

agency intends to grant or deny, or has

granted or denied, the application for

license. The no tice must state with

particularity the grounds or basis for the

issuance or denial of the license , except

when issuance is a ministerial act. Unless

waived, a copy of the notice shall be

delivered or mailed to each party ' s attorney

of record and to each p erson who has made a

written request for notice of agency action.

Each notice must inform the recipient of the

basis for the agency decision . . . .

(Emphasis added) . Thus, it is " the [agency ' s] burden to provide

specific reasons for the denial and to produce competent,

substantial evidence to support those reasons. " N.W. v. Dep ' t

of Child. & Fam. Servs. , 981 So. 2d 599, 601 (Fla. 3d DCA 2008).

15 . Before the Department of Business and Professional

Regulation can issue a real estate license to an appl icant, FREC

must certify that the applicant is qualified to practice as a

broker or sales associate. § 475.181(1), Fla. Stat. In

addition to determining whether an applicant meets the

qualifications for licensure, FREC has authority to " refuse to

certify any applicant who has violated any of the provisions of

s. 475.42 or who is subject to discipline under s. 475.25. "

§ 475.181(2), Fla. Stat.

1 6 . Section 475.17(1)(a), Florida Statutes, prescribes the

qualifications for licensure to practice as a real estate broker

or salesperson, as follows:

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 active broker ' s license or

a sales associate ' s license must be

competent and qualified to make real estate

transactions and conduct negotiations

therefore with safety to investors and to

those with whom the applicant may undertake

a relationship of trust and confidence. If

the applicant has been denied registration

or a license or has been disbarred, or the

applicant ' s registration or license to

practice or conduct any regulated

profession, business, or voc ation 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 chapter,

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

de emed 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 grantin g of registration .

(Emphasis added) .

17 . FREC contends that Fayulu ' s criminal conviction

disqualifies him from eligibility for licensure, in that he was

found guilty of conduct or practices which would have warranted

the revocation of his real estate license had he held one at the

time. FREC urges that denial of Fayulu ' s application is

authorized under s ection 475.25, Florida Statutes, which

provides , in pertinent part , as follows:

(1) The commission may deny an application

for licensure . . . 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 license d broker or sales

associate , or involves moral turpitude or

fraudulent or dishonest de aling. 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.

(Emphasis added). 7 /

18 . The question of whether Fayulu is qualified for

licensure boils down to whether the crime of which he was

convicted, simple assault, " directly relates to the activities

of a licensed broker or sales associate. " (FREC does not

contend that the crime involved moral turpitude or fraudulent or

dishonest dealing.) Because the facts are undisputed (once the

hearsay Arrest Report is properly set aside), this is a question

of law.

19 . FREC presented the testim ony of Jeffrey M. Fagan, a

licensed real estate broker who has engaged in the practice of

real estate sales for more than 17 years, on the " direct

relationship " issue, urging that he be accepted as an expert on

the subject. The undersigned has not relied upon Mr. Fagan ' s

testimony for two reasons, neither of which involves his

credibility or expertise in real estate.

20 . First, whether a crime is directly related to the

practice of real estate sales is an ultimate issue that does not

require any particu lar real estate expertise. The term

" directly relates " is composed of ordinary, frequently used , and

nontechnical words whose straightforward meaning is one that

persons of common experience and general understanding can

figure out without help . Clearly, the term " directly

relates " denotes a " close logical, causal, or consequential

relationship. " See "Definition of direct (Entry 2

of 3)," Merriam - Webster.com , http://www.merriam - webster.com

(last visited June 4, 2019). Thus, a crime directly relates to

the activities of a sales associate if there is a close logical

connection between the two.

21 . The crime is defined by its elements. The elements of

simple assault under D istrict of Columbia law are not codified

but h ave been fashioned by the courts. See Hernandez v. U.S. ,

2019 D.C. App. LEXIS 181, *8 (D.C. May 9, 2019). There are

three types of simple assault in that jurisdiction. The one

that fits the facts of Fayulu's case is called "attempted -

bat tery assault (in fact completed ) . " 8 / This type of assault

has long been defined . . . as " an attempt

with force or violence to do corporeal

injury to another, " consisting of " any act

tending to such corporal injury, accompanied

with such circumstances as denote at the

t ime an intention, coupled with the present

ability, of using actu al violence against

the person."

Id. at *9 (citations omitted)(emphasis removed).

22 . The " activities " of a real estate sales associate are

established by law as well. Section 475.01(1)(j ) defines the

term "sales associate" as meaning "a person who performs any act

specified in the definition of 'broker,' but who performs such

act under the direction, control, or management of another

person." Thus, the activities of a sales associate are those of

a broker. A broker's activities, in turn, are described in

section 475.01(1)(a), which defines the term "broker" as

follows:

[A real estate "broker" is] a person who,

for another, and for a compensation or

valuable consideration directly or

indi rectly paid or promised, expressly or

impliedly, or with an intent to collect or

receive a compensation or valuable

consideration therefor, appraises, auctions,

sells, exchanges, buys, rents, or offers,

attempts or agrees to appraise, auction, or

negotiate the sale, exchange, purchase, or

rental of business enterprises or business

opportunities or any real property or any

interest in or concerning the same,

including mineral rights or leases, or who

advertises or holds out to the public by any

oral or print ed solicitation or

representation that she or he is engaged in

the business of appraising, auctioning,

buying, selling, exchanging, leasing, or

renting business enterprises or business

opportunities or real property of others or

interests therein, includin g mineral rights,

or who takes any part in the procuring of

sellers, purchasers, lessors, or lessees of

business enterprises or business

opportunities or the real property of

another, or leases, or interest therein,

including mineral rights, or who directs or

assists in the procuring of prospects or in

the negotiation or closing of any

transaction which does, or is calculated to,

result in a sale, exchange, or leasing

thereof, and who receives, expects, or is

promised any compensation or valuable

considerat ion, directly or indirectly

therefor; and all persons who advertise

rental property information or lists.

There is nothing in the foregoing statutory language that is

beyond the ken of an ordinary layperson.

23. The second reason for rejecting Mr. Fagan ' s testimony

is that he clearly relied upon the factual narrative in the

Arrest Report as a true record of the historical facts. Thus,

the predicate for his opinions, even if expert testimony were

appropriate to the question at hand, is comprised, literal ly, of

facts not in evidence. Such opinions are legally irrelevant.

24. Returning t o the merits, FREC ' s theory of " direct

relationship " is essentially this: Fayulu was convicted of

assault against a human being. R eal estate sales associates

come into contact with human beings . T herefore, the crime of

assault is directly related to the practice of real estate. One

does not need to be a logician to spot the problem with thi s

syllogism, namely, that its conclusion is a non sequitur.

25. There is no close logical, causal, or consequential

connection between using force or violence to injure another

person (assault) and the practice of real estate sales , where

the only nexus is that both involve transactions between human

beings. Such a nexus is a uni versal common denominator as far

as the activities of human beings are concerned. If this were a

sufficient connection to establish that a crime directly relates

to the activities of a sales associate, then practically every

crime, if not a ll crimes, woul d fit the bill.

26. The legislature, however, plainly intended that the

"directly relates" proviso would operate as a filter, not an

open valve. If the legislature wants, in the future, to make

all crimes disqualifying, then it can amend the statute to m ake

such an intention clear.

27. It is concluded that the crime of simple assault under

the law of the District of Columbia is not directly related to

the activities of a licensed real estate sales associate.

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 approving Fayulu's application for licensure

as a real estate sales associate .

DONE AND ENTERED this 5th day of June , 20 1 9 , in

Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of June , 20 1 9 .

ENDNOT ES

1 / The detective ' s statements about the scope of his

investigation might fall under the business or public records

and reports exception, but these are not relevant facts.

2 / A statement about the complainant ' s injuries might possibly

fall under the business records exception if the source is the

arresting officer.

3 / The Arrest Report does confirm a few facts that are

undisputed (such as the date of the offense) and supply

additional detail about undisputed or superfluous fa cts (such as

the location and time of the offense), but in these particulars

the out - of - court statements are cumulative or irrelevant;

consequently, while it might be allowable to do so, there is no

need to resort to the hearsay to make any findings of fac t.

4 / Hearsay is admissible in administrative proceedings. Unless

a predicate is laid for the admission of the hearsay under a

recognized exception to the hearsay rule, however, such

" evidence " (which would be rejected as unreliable in a court of

law) c an be used only to supplement or explain other nonhearsay

evidence (or hearsay received pursuant to an exception); even in

this forum, with its relatively relaxed rules of evidence,

uncorroborated hearsay is not sufficient in itself to support a

finding of fact. See § 120.57(1)(c), Fla. Stat.

The undersigned has not overlooked the possibility that the

Arrest Report might qualify for admission as primary substantive

evidence pursuant to the public records and reports exception,

see § 90.803(8), Fla. Stat., or the business records exception

set forth in s ection 90.803(6), Florida Statutes, even though

FREC made little, if any, attempt to provide the proper

predicate. Neither exception, however, is applicable. The

public reports exc eption does not apply because the Arrest

Report set s forth factual findings resulting fro m an

investigation and also relies upon information supplied by

outside sources, making it inadmissible under s ection 90.803(8).

See Lee v. Dep ' t of HRS , 698 So. 2d 1194, 1200 - 01 (Fla. 1997).

The business records exception does not apply because the

sources of information contained in the Arrest Report ÏÏ

especially the complainant and witness ÏÏ were not employees or

agents of the police department and were not acting within the

regular course of the police department ' s business; that is, the

relevant sources with personal knowledge of the material facts

were not, as far as the evidence shows, under a " business duty "

to report the information accurately to t he police department .

See Quinn v. State , 662 So. 2d 947, 953 - 54 (Fla. 5th DCA 1995);

Harris v. Game & Fresh Water Fish Com m ' n , 495 So. 2d 806, 808 - 09

(Fla. 1st DCA 1986); see also Franzen v. State , 746 So. 2d 473,

474 (Fla. 2d DCA 1998)(Casanueva, J., ex plaining, in a

concurring opinion, that the predicate for admitting a business

record includes the requirement " that the source of the

information be an employee or agent of the business possessing

the requisite knowledge of the data or information " ).

5 / Under D istrict of Columbia law, a conviction for simple

assault carries a maximum sentence of 180 days, whereas the

crime of AAWA is punishable by up to 30 years in prison. White

v. U.S. , 2019 D.C. App. LEXIS 180, *11 - 12 (D.C. May 9, 2019).

6 / As proof of the charge brought against Fayulu, the Arrest

Report is not hearsay because the relevance of that fact is not

its " truth " (i.e., not that Fayulu was in fact guilty), but that

Fayulu was charged with a very serious and violent crime. In

other w ords, to the extent the contents of the Arrest Report are

relevant simply because they were made, the information ÏÏ by

definition ÏÏ is not hearsay, which is an out - of - court statement

offered to prove its truth. § 90.801(1)(c), Fla. Stat.

7 / FREC relies up on the fact of Fayulu's conviction in asserting

his ineligibility for licensure; it did not attempt, in other

words, to prove that he was, in fact, guilty of, e.g., a more

serious offence than simple assault. Thus, although FREC cites

section 475.17(1)(a) , its theory of the case is not really

dependent on this particular statute; the intended agency action

requires only section 475.25(1)(f) for legal support .

8 / The other simple assaults are intent - to - frighten and

nonviolent sexual touching. Id.

COPIES FURNISHED :

Milain D . Fayulu, pro se

5880 Southwest 91st Street

Miami, Florida 33156

Marlene K. Stern, Esquire

Lawrence D. Harris, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Thomas Luzier , Chair

Florida Real Estate Commission

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801

Orlando, Florida 32801

Ray Treadwell , General Counsel

Office of the General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Halsey Beshears, Secretary

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.