19-000971 Darryl Maurice Young vs. Department Of Business And Professional Regulation, Florida Real Estate Commission Status: Closed Recommended Order on Friday, May 31, 2019.

Summary: Petitioner failed to establish, by a preponderance of the evidence, that he satisfied the requirements for a real estate sales associate license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARRYL MAURICE YOUNG,

Petitioner,

vs. Case No. 19 - 097 1

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION, FLORIDA

REAL ESTATE COMMISSION,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 1, 2019, Administrative Law Judge Robert J.

Telfer III, of the Florida Division of Administrative Hearings

(Division), conducted a duly - noticed hearing in Tallahassee and

Jacksonville, Florida, by video teleconference, purs uant to

sections 120.569 and 120.57(1), Florida Statutes (2018).

APPEARANCES

For Petitioner: No appearance

For Respondent: Robert Antonie Milne, Esquire

Tom Barnhart, Esquire

Office of the Attorney General

Plaza Level 01

The Capitol

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue to determine in this matter is whether Petitioner

Darryl Maurice YoungÓs application for real estate license should

be denied for the reasons stated in Respondent Department of

Business Regulation, Florida Rea l Estate CommissionÓs

(Commission) , Notice of Intent to Deny, rendered April 5, 2018.

PRELIMINARY STATEMENT

On April 5, 2018, the Commission rendered a Notice of Intent

to Deny, denying Mr. YoungÓs application for a real estate sales

associate license. Th e Commission determined that Mr. Young was

not qualified to be issued a real estate sales associate license

for numerous reasons, including: (a) his criminal record, as

revealed in the application; (b) his testimony in

explanation/mitigation was unpersuas ive; (c) he had not had

sufficient time free of government supervision to establish

rehabilitation; (d) he was a convicted felon; (e) he failed to

establish restoration of his civil rights under chapter 112,

Florida Statutes; (f) he engaged in conduct or p ractices , which

would have been grounds for revoking or suspending a real estate

license; (g) he was 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 or fraudulent or dishonest dealing,

under sections 475.25(1)(f) and 475.181, Florida Statutes; and

(h) he had not had a sufficient lapse of time, without government

supervision, to establish rehabilitation by be i ng crime - free.

On May 6, 2018, Mr. Young filed a petition with the

Commission disputing the Notice of Intent to Deny. On

February 21, 2019, the Commission referred this matter to the

Division, which assigned the undersigned to determine the issues

of ma t erial fact in dispute.

Pursuant to a Notice of Hearing by Video Teleconference, the

undersigned conducted a final hearing on May 1, 2019, by video

teleconference in Tallahassee and Jacksonville, Florida.

Although the Notice of Hearing clearly stated that the hearing

was to commence at 9:00 a.m., no one appeared on behalf of

Mr. Young at the starting time. Both the undersigned and counsel

for Respondent attempted to contact Mr. Young, with no success.

At approximately 9:30 a.m., the undersigned convened the final

hearing, without an appearance of Mr. Young. The Commission

presented no witnesses. The undersigned received RespondentÓs

Exhibits R1 through R5 into evidence, without objection. 1/

Exhibit R5, the deposition transcript of Geneva Carter, was n ot

completed at the time of the final hearing. The undersigned

ruled that the final hearing record would remain open until the

Commission filed Exhibit R5, and advised counsel for the

Commission that proposed recommended orders were to be filed

within 10 days of the filing of Exhibit R5 or the filing of the

final hearing transcript, whichever was later.

In the afternoon of May 1, 2019 (well after the conclusion

of the final hearing), Mr. Young filed a Request for

Reconsideration for an Extended Hearing, st ating that he received

dental treatment that morning, causing him to miss the final

hearing. On May 10, 2019, the undersigned entered an Order

Denying Continuance of Final Hearing. 2/ The Order advised

Petitioner that he would be allowed to submit a propo sed

recommended order within 10 days of the filing of Ms. CarterÓs

deposition transcript.

The one - volume T ranscript of this final hearing was filed

with the Division on May 7, 2019. The Commission filed

Exhibit R5 on May 15, 2019. On May 15, 2019, the undersigned

entered an Order Closing Hearing, which advised the parties to

submit their proposed recommended orders within 10 days. The

Commission timely filed a Proposed Recommended Order that the

undersigned considered in the preparation of this Recomme nded

Order. Petitioner did not file a post - hearing submittal.

All statutory references are to the 2018 codification of the

Florida Statutes unless otherwise indicated.

FINDING S OF FACT

1. On January 22, 2018, Mr. Young submitted a State of

Florida, Depa rtment of Business and Professional Regulation,

Florida Real Estate Commission, Application for Sales Associate

License, Form # DBPR RE 1.

2. Background question 1, in Mr. YoungÓs application, asks,

in part:

Have 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 criminal investigation?

3. Mr. Young provided the following explanation for

Background question 1:

DUI Manslaughter

D uval/Orlando, Florida

20 years in prison; 1 year probation

May 3, 1997.

4. Additionally, the Commission presented, through FDLE and

court records, Mr. YoungÓs lengthy past criminal offenses and

convictions, dating back to 1987:

2/07/1987 Petty theft w ith prior

2/17/1987 Petty theft

6/01/1987 Burglary (dismissed when pled

to above charges)

11/04/1987 Petty theft (merchandise)

8/29/1988 Burglary

Petty theft and prior jail

offenses

Convicted/committed to prison

10/26/1988 Petty theft with priors

CA Medical Facility

Sentence - 1 year, 4 months

1/02/1991 Petty theft with priors

Sentence - 2 years, state

prison

1/30/1991 Petty theft

Sentence Î state prison

3/26/1992 Petty theft with priors

Sentence - state prison

8/10/1995 Shopli fting/petit theft

Resisting merchant

Convicted of both misdemeanors

6/18/1996 Aggravated assault with weapon

Felony conviction

7/08/1996 Fraud Î failure to deliver a

hired vehicle

Felony conviction

5/03/1997 Resisting officer with

violence

Felony conviction

7/22/1997 Violation of Probation (Fraud)

Felony conviction

8/22/1997 Violation of Probation (DUI

Manslaughter)

Felony conviction

8/22/1997 Leaving the scene of an

accident

Felony conviction

7/13/1999 DUI Manslaughter

DUI with serious bodily injury

Felony conviction

Sentence - 20 years, 5 months,

and 7 days

5. While in prison for the 20 - plus year sentence for DUI

Manslaughter, Mr. Young completed a substance abuse program, and

a faith - based residential program.

6. The Florida Department of Corrections discharged

Mr. Young from supervision (probation) on April 25, 2016.

7. Michelle Gordon testified that she has known Mr. Young

since hi s release from prison, has had a friendly working

relationship with Mr. Youn g, and that she shared a few culinary

classes with him. She further testified that he was a helpful

and nice person.

8. Tracy Pray testified that she too has known Mr. Young

since his release from prison, and that Mr. Young had assisted

her in obtaining a food truck, and that they worked together for

about two years. Ms. Pray testified that Mr. Young voluntarily

helped her complete the paperwork for the food truck operation.

9. Geneva Carter testified that she works for PRIDE

Enterprises as a transition specialist. She testified that she

helped Mr. Young gain some useful work experience while he was

incarcerated. Ms. Carter further testified that she met with him

briefly on two occasions after his release to help him make the

transition from prison to working outside of prison.

10. Petitioner failed to establish the following

requirements for a real estate sales associate license: that he

is honest, trustworthy, of good character, has a reputation for

fair dealing, and he is competent and qualified to make real

estate transactions and conduct negotiations with safety to

investors and others.

11. Petitioner also failed to overcome the disqualification

for eligibility found in section 475.25(1)(f), which results from

convictions to multiple crimes invol ving moral turpitude or

fraudulent or dishonest dealing.

12. Based on Mr. YoungÓs failure to appear and offer

evidence, there is no evidentiary basis on which findin gs can be

made that he satisfied the requirements for a real estate sales

associate licens e.

CONCLUSIONS OF LAW

13. The Division has jurisdiction of the subject matter of

this proceeding and of the parties, pursuant to sections 120.569

and 120.57, Florida Statutes.

14. Respondent is authorized to certify for licensure as a

real estate sales a ssociate any applicant who satisfies the

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

15. Mr. Young, as the applicant, has the burden to prove,

by a preponderance of the evidence, that he satisfies the

requirements of a real estate sales ass ociate license. See DepÓt

of Banking & Fin. v. Osborne, Stern & Co. , 670 So. 2d 932, 934

(Fla. 1st DCA 1996).

16. Section 475.17(1)(a) describes the qualifications for

licensure of a real estate sales associate:

An applicant for licensure who is a natu ral

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

brokerÓs license must be competent a nd

qualified to make real estate transactions

and conduct negotiations therefor with safety

to investors and to those with whom the

applicant may undertake a relationship of

trust and confidence. . . . [I]f the

applicant has been guilty of conduct or

prac tices 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 deemed not

to be qualified unless, because of lapse of

time and s ubsequent 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.

17. Section 475.25(1)(f) authorizes Respondent to deny an

application for licensure if it finds the applicant:

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

associate, or involves moral turpitude or

fraudulent or dishonest dealing. The record

of 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.

18. Mr. Young failed to carry his burden, by a

preponderance of the ev idence, that he satisfied the requirements

f or a real estate sales associate license.

19. Mr. Young failed to prove, by a preponderance of the

evidence, that he is honest, truthful, trustworthy, of good moral

character, has a good reputation for fair deal ing, and that he is

competent and qualified to make real estate transactions and

conduct negotiations with safety to investors and others, all of

which are required for licensure under section 475.17(1)(a).

20. Further, it is clear to the undersigned that

Mr. YoungÓs numerous convictions from 1987 to 1999, which include

theft, fraud, aggravated assault with a weapon, leaving the scene

of an accident, and DUI manslaughter (with a 20 - plus year prison

sentence), constitute crimes of moral turpitude within th e

meaning of section 475.25(1)(f). See , e.g. , Cambas v. DepÓt of

Bus. & ProfÓl Reg. , 6 So. 3d 668, 671 (Fla. 5th DCA 2009)

(holding that leaving the scene of an accident with injury

constitutes a crime of moral turpitude); Antel v. DepÓt of Bus. &

ProfÓl Reg. , 522 So. 2d 1056, 1057 - 58 (Fla. 5th DCA 1988)

(holding that manslaughter conviction constitutes a crime of

moral turpitude and affirming denial of license); Bruner v. Bd.

of Real Estate , 399 So. 2d 4, 5 (Fla. 5th DCA 1981)(affirming

denial of license based on previous guilty plea to theft).

21. Mr. Young also failed to establish, by a preponderance

of the evidence, that he should not be automatically disqualified

from licensure pursuant to section 475.17(1)(a), Ðbecause of

lapse of time and subsequen t good conduct and reputation, or

other reason deemed sufficient . . . the interest of the public

and investors will not likely be endangeredÑ by the granting of

the application. Mr. Young did not appear for his final hearing,

and did not present any disi nterested witnesses to support his

assertions of good moral character, honesty, trustworthiness, and

truthfulness.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, the undersigned RECOMMENDS that the Commission issue a final

o rder deny Mr. YoungÓs application for licensure as a real estate

sales associate.

DONE AND ENTERED this 31st day of May, 2019 , in Tallahassee,

Leon County, Florida.

S

ROBERT J. TELFER III

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 31st day of May, 201 9 .

ENDNOTE S

1/ Exhibit R3 was the deposition transcript of Michelle Gordon,

and Exhibit R4 was the deposition transcript of Tracy Pray.

2/ On May 9, 2019, Mr. Young filed with the Division numerous

documents, which the undersigned has not considered in the

preparation of this Recommended Order.

COPIES FURNISHED:

Robert Antonie Milne, Esquire

Office of the Attorney General

Plaza Level 01

The Capitol

Tallahassee, Florida 32399 - 1050

(eServed)

Darryl Maurice Young

Hogan Creek Tower

Apartment 1103

13 20 Broad Street North

Jacksonville, Florida 32202

(eServed)

Tom Barnhart, Esquire

Office of the Attorney General

Plaza Level 01

The Capitol

Tallahassee, Florida 32399

(eServed)

Halsey Beshears, Secretary

Department of Business and Professional Regulat ion

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Ray Treadwell, General Counsel

Office of the General Counsel

Department of Business and Profe ssional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Thomas Luzier, Chair

Florida Real Estate Commission

Department of Business and Professional Regulation

400 West Robinson Street , Suite N801

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions wi thin

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.