97-004408 Clayton Montgomery vs. Regulatory Council Of Community Association Managers Status: Closed Recommended Order on Wednesday, February 25, 1998.

Summary: Unexplained criminal record of charges establishes Petitioner's lack of good moral character such that denial of license is appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAYTON MONTGOMERY, )

)

Petitioner, )

)

vs. ) Case No. 97-4408

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

COMMUNITY ASSOCIATION MANAGERS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

by telephone conference call on January 23, 1998, with the

parties appearing at Fort Lauderdale, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Roberto Stanziale, Esquire

6209 West Commercial Boulevard, Suite 2

Fort Lauderdale, Florida 33319

For Respondent: Thomas G. Thomas

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to approval of his

application for licensure by examination.

PRELIMINARY STATEMENT

This case began on August 5, 1997, when the Department of

Business and Professional Regulation, Division of Professions

(Department) issued a letter advising Petitioner, Clayton M.

Montgomery, that his application for licensure as a community

association manager by examination was being denied. The

Department based the denial on Petitioner's failure to establish

good moral character as required by Section 468.433, Florida

Statutes, and Rule 61-20.001(5)(a) and (b), Florida

Administrative Code. More specifically, the Department alleged

that Petitioner's criminal record demonstrates a lack of good

moral character as defined by the statute and rule.

In response, Petitioner timely filed a request for an

administrative hearing, and disputed the Department's conclusion

that he is not of good moral character. This Petition for Formal

Hearing was filed on August 29, 1997. This matter was referred

to the Division of Administrative Hearings for formal proceedings

on September 18, 1997.

At the hearing, the Petitioner presented no witnesses or

exhibits. Respondent's Exhibits numbered 1 through 3 have been

received into evidence. A transcript of the proceeding has not

been filed. The proposed recommended orders filed by the parties

have been considered in the preparation of this order.

FINDINGS OF FACT

1. Petitioner is an applicant for licensure by examination

to be a community association manager.

2. On June 19, 1997, Petitioner filed an application for

license that admitted a criminal arrest for possession of

cocaine, diazepam, and marijuana.

3. The arrest noted above resulted in the issuance of a

four-count Information for possession of cocaine, possession of

diazepam, possession of cannabis, and possession of drug

paraphernalia.

4. After an initial plea of not guilty, Petitioner entered

a changed plea, and pled nolo resulting in a sentence whereby

adjudication of guilt was withheld and two years of probation was

imposed.

5. On June 19, 1997, Petitioner's request for the early

termination of his probation was granted. Concurrent with this

release, Petitioner filed the application for license which is at

issue in this proceeding.

6. No other criminal charges or allegations are at issue in

this matter. Petitioner does not dispute the accuracy of the

foregoing criminal record.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these

proceedings.

8. Section 468.433, Florida Statutes, provides, in

pertinent part:

(1) A person desiring to be licensed as a

community association manager shall apply to

the department to take the licensure

examination. Each applicant must file a

complete set of fingerprints that have been

taken by an authorized law enforcement

officer, which set of fingerprints shall be

submitted to the Department of Law

Enforcement for state processing and to the

Federal Bureau of Investigation for federal

processing. The cost of processing shall be

borne by the applicant. The department shall

examine each applicant who is at least 18

years of age and who the department certifies

is of good moral character.

(a) Good moral character means a

personal history of honesty, fairness, and

respect for the rights of others and for the

laws of this state and nation .

(b) The department may refuse to

certify an applicant only if:

1. There is a substantial

connection between the lack of good moral

character of the applicant and the

professional responsibilities of a community

association manager; and

2. The finding by the department

of lack of good moral character is supported

by clear and convincing evidence.

(c) When an applicant is found to be

unqualified for a license because of a lack

of good moral character, the department shall

furnish the applicant a statement containing

its findings, a complete record of the

evidence upon which the determination was

based, and a notice of the rights of the

applicant to a rehearing and appeal.

(Emphasis added.)

9. Rule 61-20.001, Florida Administrative Code, provides,

in pertinent part:

(1) Definitions.

(a) "Charge" or "Charges". These terms

refer to the official document in any

criminal proceeding, whether styled an

"Information", "Indictment", or otherwise,

which document specifies the charges against

the defendant, and which document is filed in

any court of Florida, another state or

country, or the United States government.

* * *

(c) "Criminal record". An applicant's

criminal record, for purposes of this rule,

includes any misdemeanor or felony charge

filed against the applicant in the courts of

any state or federal district or territory,

or other country, on any subject matter

whether related to community association

management or not, concerning which charge

the applicant was found guilty, or pled

guilty, or pled no contest, regardless of

whether or not there was an adjudication by

the court , and regardless of whether the

matter is under appeal by the applicant. The

phrase includes such charges even where the

crime was subsequently pardoned or civil

rights have been restored. The phrase does

not include criminal convictions which were

finally reversed or vacated on appeal; nor

does it include charges of which the

applicant was found not guilty, or which were

finally dismissed; nor does it include

matters as to which at time of application an

order of sealing or expunction has been

issued by a court of competent jurisdiction.

* * *

(5) Good Moral Character.

(a) Unless the division denies the

application for incompleteness under

paragraph (4)(a) of this rule, the division

shall evaluate the application and make

appropriate inquiry to determine the

applicant's moral character. Demonstration

of all of the following will establish the

applicant's good moral character:

1. The completion of a criminal history

records check by the Florida Department of

Law Enforcement and self-disclosure by the

applicant that establishes that the applicant

has no criminal record ;

* * *

(b) If the applicant has failed to

establish good moral character under

paragraph (5)(a), the division will then

consider the following additional factors to

determine whether an applicant has good moral

character for purposes of licensure under

chapter 468, Part VIII, Florida Statutes:

1. If commission of a second

degree misdemeanor is the only reason the

applicant did not meet the requirements of

paragraph (5)(a) of this rule, the applicant

will be considered to have good moral

character. However, if there are also other

reasons why the applicant did not meet the

requirements of paragraph (5)(a) of this

rule, the second degree misdemeanor will be

considered along with the other factors in

determining the applicant's good moral

character;

2. If the applicant has committed

a first degree misdemeanor or a felony, and

the applicant's civil rights have been

restored, this alone shall not preclude a

finding of good moral character unless the

crime is directly related to the professional

responsibilities of a community association

manager. Crimes that are deemed to be

directly related to the professional

responsibilities of a community association

manager include, for example, fraud, theft,

burglary, bribery, arson, dealing in stolen

property, forgery, uttering a forged

instrument, sexual battery, lewd conduct,

child or adult abuse, murder, manslaughter,

assault, battery, and perjury. The applicant

has the burden of proving restoration of

civil rights by certified true copy of

government or court records reflecting such

action.

* * *

6. Written evidence the division

will consider in determining the applicant's

good moral character shall include:

a. A statement from the applicant explaining

the applicant's criminal/unlawful conduct and

the reason the applicant believes the

division should issue the license;

b. Evidence as to the length of time since

the conduct occurred or the age of the

applicant at the time the conduct occurred;

c. Evidence of successful rehabilitation;

d. Recommendations from parole or probation

employees who have supervised the applicant;

e. Recommendations from the prosecuting

attorney or sentencing judge;

f. Character references from individuals

other than immediate family members, who have

know the applicant for 3 years or longer;

g. Police reports or transcripts which

reveal the underlying facts of the crime;

h. Evidence that the conduct was an isolated

occurrence contrary to the applicant's normal

pattern of behavior; and

i. Evidence of community or civil activities

with which the applicant has been associated.

It is the applicant's responsibility to

provide such mitigating evidence to the

division .

* * *

(c) If the applicant has failed to meet the

requirements of paragraph (5)(a) of this rule

and has been unable to present sufficient

evidence to establish good moral character

pursuant to paragraph (5)(b) of this rule

within the time limitations of this rule and

section 120.60, Florida Statutes, the

application will be denied. However, the

applicant will be given an opportunity by the

division to waive the time limits of this

rule and section 120.60, Florida Statutes, if

it appears to the division that, through the

submission of additional information or with

additional time for investigation and

verification, the applicant's good moral

character might be established. The

applicant bears the burden of affirmatively

providing the division with evidence of good

moral character .

(6) If the application is denied, the

division shall proceed as provided in rule

61B-55.0011(1), Florida Administrative Code.

The unsuccessful applicant who requests a

hearing for issuance of a license under this

rule shall have the burden of proof to

establish, by a preponderance of the

evidence, entitlement to the requested

license .

(Emphasis added.)

10. In this case, there is no dispute that Petitioner was

charged and entered the plea noted above. As such, the

Department was entitled to rely on the clear and convincing

evidence of the Petitioner's criminal history in reaching its

conclusion that the Petitioner does not have good moral

character.

11. Petitioner bears the burden of proof to establish his

entitlement to the license sought. While Petitioner successfully

completed the probation from the criminal matter, he has not

affirmatively demonstrated good moral character under the

guidelines set forth above.

12. Petitioner presented no character evidence. While

admitting all of the factual allegations of the notice of denial,

Petitioner argues that the Department has misapplied its rule

since his civil rights were not removed as a result of the

criminal plea. As such, he claims the single incident giving

rise to the four criminal charges should not stand as a criminal

record disqualifying this applicant from licensure. Since he

truthfully disclosed the arrest and charges on his application

for licensure, and completed all terms of the sentence imposed,

Petitioner maintains he is eligible for licensure.

13. While a criminal record may not stand as a permanent

bar to an applicant's right to licensure, in this instance,

Petitioner failed to establish good moral character as that term

is used in both the statute and rule. Given the presence of the

criminal record, the Petitioner must establish good moral

character. Petitioner was less than two years in time from the

criminal incident when he filed for licensure. He offered no

testimony to explain the circumstances of his arrest nor his

efforts since to re-establish himself and show rehabilitation.

At the time of the arrest, Petitioner was alleged to be in

possession of three illegal substances. That he chose to plead

nolo to these charges is not disputed. He has not explained that

plea nor offered any evidence to discount the criminal history

established by this record.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Professions, enter a Final

Order denying Petitioner's application for licensure as a

community association manager by examination.

DONE AND ENTERED this 25th day of February, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. Parrish

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of February, 1998.

COPIES FURNISHED:

Edward Broyles, Executive Director

Regulatory Council of Community

Association of Managers

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Thomas G. Thomas

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Roberto Stanziale,Esquire

6209 West Commercial Boulevard

Suite 2

Fort Lauderdale, Florida 33319

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.