98-002906 Jerry George Sardone, Jr. vs. Regulatory Council Of Community Association Managers Status: Closed Recommended Order on Thursday, April 29, 1999.

Summary: Petitioner failed to establish that he possesses good moral character. A substantial connection was shown to exist between Petitioner`s lack of good moral character and the professional responsibilities of a licensee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY GEORGE SARDONE, JR., )

)

Petitioner, )

)

vs. ) Case No. 98-2906

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

COMMUNITY ASSOCIATION MANAGERS, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

by video teleconference on October 1, 1998, at sites located at

West Palm Beach and Tallahassee, Florida, before Errol H. Powell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert P. Foley, Esquire

Comeau Building, Suite 711

319 Clematis Street

West Palm Beach, Florida 33401-4621

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

The issue for determination is whether Petitioner's

application for licensure as a community association manager by

examination should be approved.

PRELIMINARY STATEMENT

Jerry George Sardone, Jr. (Petitioner), made application for

licensure as a community association manager by examination. By

letter dated May 6, 1998, the Department of Business and

Professional Regulation, Community Association Managers

(Respondent), notified Petitioner that it intended to deny his

application for failure to establish good moral character as

required by Section 468.333, Florida Statutes, and

Rule 61-20.001(5)(a) and (b), Florida Administrative Code. By

and through his counsel, Petitioner requested a hearing pursuant

to Subsection 120.57(1), Florida Statutes. On June 29, 1998,

this matter was referred to the Division of Administrative

Hearings.

At hearing, neither Petitioner nor Respondent presented the

testimony of any witnesses. Respondent entered six exhibits

(Respondent's Exhibits numbered 1-6) into evidence. 1

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for more than ten days following the filing of the transcript.

Only Respondent filed a post-hearing submission which was filed

on November 2, 1998. The post-hearing submission has been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. By application dated January 3, 1998, Jerry George

Sardone, Jr. (Petitioner), made application for licensure as a

community association manager by examination. Petitioner's

application was received by the Department of Business and

Professional Regulation, Community Association Managers

(Respondent), on or about January 15, 1998.

2. A section entitled "ESSENTIAL INFORMATION FOR

APPLICANTS" was located on the first page of the application.

The section provided, among other things, the following:

Pursuant to Rule 61B-55.004(5)(a)5.[sic],

Florida Administrative Code, failing to

provide full and complete disclosure or

failing to provide accurate information on

this application for licensure or in

materials subsequently provided to the

Division [Division of Professions] will

result in the denial of this application.

3. Question numbered 17 of the application inquired, among

other things, about Petitioner's criminal background. Question

numbered 17 stated in pertinent part:

C) Criminal

* * *

2. Have you ever been convicted or been

found guilty of a felony or misdemeanor,

entered a plea of guilty or nolo contendere

(no contest) to a felony or misdemeanor?

Yes ( ) No ( ) This question applies to any

violation of the laws of any state, territory

or country without regard to whether the

matter is under appeal or you were placed on

probation, had adjudication withheld, were

paroled or pardoned.

Petitioner checked "no" to the above inquiry.

4. If an applicant checked "yes" to the above inquiry, the

applicant was required to respond to additional inquiries

regarding the applicant's criminal background. One of the

additional inquiries involved the outcome of the criminal

situation, and one of the possible outcomes listed was "Charges

Dismissed (Nol Pros entered)."

5. By letter dated March 5, 1998, Respondent notified

Petitioner that, among other things, his application was

deficient. The deficiency indicated was that the criminal

history received from the Florida Department of Law Enforcement

and the Federal Bureau of Investigation indicated that Petitioner

had a criminal history that he had not revealed on his

application. The letter indicated the specific criminal history

as follows:

Specifically, you [Petitioner] were arrested

on April 21, 1980 by the Sheriff's Office,

West Palm Beach, Florida and charged with

Failure to Appear for Arraignment/Resisting

Arrest with Violence. You were arrested on

November 15, 1988 by the County Police,

Mineola, New York, and charged with Driving

While Intoxicated. You were arrested on

December 30, 1988 by the County Police,

Mineola, New York, and charged with Burglary

Second Degree, and Criminal Possession of a

Weapon. The disposition of these incidents

are either unclear or not known.

The letter requested, among other things, certain information

regarding the arrests, including disposition, within 60 days.

6. By letter dated April 7, 1998, Petitioner responded to

Respondent's letter dated March 5, 1998. Petitioner provided

certified copies of the courts' disposition records regarding the

arrests in Respondent's letter dated March 5, 1998. Petitioner

also indicated in his letter that he had mistakenly recalled that

the charges were dismissed and, therefore, had not included them

on his application.

7. By letter dated May 6, 1998, Respondent notified

Petitioner of its intent to deny his application for licensure

based upon Petitioner's failure to establish that he possessed

good moral character. Respondent indicated, among other things,

the basis for its determination that Petitioner lacked good moral

character, namely, Petitioner's failure to include any arrests on

his application, his arrest record, and his response that he

submitted to the arrest record.

8. As to the arrest and charge on April 21, 1980,

Petitioner pled guilty on June 23, 1980, to and was convicted of

failure to appear for arraignment and a lesser charge of

resisting arrest without violence. Adjudication was withheld and

Petitioner was sentenced to six months probation.

9. As to the arrest and charge on November 15, 1988,

Petitioner pled guilty on January 5, 1989, to and was convicted

of a lesser charge of operating a motor vehicle while impaired by

alcohol. Petitioner was ordered to pay $250 or spend five days

in jail, and his license was ordered revoked.

10. As to the arrest and charge on December 30, 1988,

Petitioner pled guilty on July 21, 1989, to and was convicted of

a lesser charge of attempted petit larceny. The disposition was

a conditional discharge. 2

11. Respondent included another arrest in its letter dated

May 6, 1998, which was not indicated in its letter dated March 5,

1998. The arrest occurred on December 9, 1984, when Petitioner

was arrested by the Fort Lauderdale Police Department in Florida

and charged with willful and wanton reckless driving. The

disposition of that arrest was not established at hearing.

12. It is undisputed that Petitioner failed to include any

of the criminal history on his application for licensure. Even

if Petitioner thought that the charges were dismissed, as he

indicated in his response letter, the application provided

Petitioner an opportunity to list the charges and to indicate

that they were dismissed.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

14. Petitioner, as the applicant, has the ultimate burden

of proof to establish that he is entitled to have his application

for licensure as a community association manager by examination

approved. Florida Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

15. 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.

16. 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.

3. Whether the applicant has exhibited

a pattern of unlawful behavior which

would indicate that the applicant has

little regard for the law, the rules of

society, or the rights of others. All

unlawful acts will be considered in

determining whether the applicant has

exhibited a pattern of unlawful

behavior, even though any one of the

unlawful acts by itself might not be

directly related to the professional

responsibilities of a community

association manager. It is the

applicant's repeated flaunting of or

ignoring the law that evinces a lack of

the moral character needed to perform

the duties and assume the

responsibilities of a community

association manager, not the particular

relationship of any one of the

violations to the professional

responsibilities of a community

association manager.

* * *

5. Conduct of the applicant relied upon

by the division to determine that the

applicant lacks good moral character

shall be directly related to the

professional responsibilities of a

community association manager.

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.

7. If the applicant makes incomplete,

misleading or false statements regarding

material facts in making an application,

such action will establish the

applicant's lack of good moral

character, and the application will be

denied.

(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.

17. Petitioner filed an application for licensure with

Respondent indicating, among other things, no criminal history.

Respondent accessed Petitioner's criminal history. In its letter

to Petitioner dated March 5, 1998, Respondent notified Petitioner

of a deficiency in his application for licensure, namely, the

failure to include his criminal history and the disposition of

each incident, with Respondent specifically identifying the

criminal history in question. In its letter, Respondent also

requested Petitioner to provide additional information regarding

his criminal history, within a certain period of time.

Petitioner responded to the request.

18. Respondent relied upon Petitioner's arrest record and

his response in determining that Petitioner's application should

be denied based upon a lack of good moral character.

Respondent's determination that Petitioner lacked good moral

character must be supported by clear and convincing evidence.

Subsection 468.433(1)(b)2, Florida Statutes. The evidence relied

upon by Respondent was clear and convincing.

19. Theft is considered to be a crime directly related to

the professional responsibilities of a community association

manager. Rule 61-20.001(5)(b)2, Florida Administrative Code.

Petitioner pled guilty to attempted petit larceny in the State of

New York. No evidence was presented to indicate whether New

York's theft law was the same as or similar to Florida's theft

law. Based on the lack of evidence to the contrary, this

Administrative Law Judge assumes that theft in New York is theft

in Florida.

20. As to the degree of the crime committed, it is

reasonable to look to Florida's law for guidance. Florida's

statutory provision on theft is found at Section 812.014, Florida

Statutes (Supp. 1988), which provides in pertinent part:

(1) A person is guilty of theft if he

knowingly obtains or uses, or endeavors to

obtain or to use, the property of another

with intent to, either temporarily or

permanently:

(a) Deprive the other person of a right to

the property or a benefit therefrom.

(b) Appropriate the property to his own use

or to the use of any person not entitled

thereto.

* * *

(2)(d) Theft of any property not specified

in paragraph (a), paragraph (b), or paragraph

(c) is petit theft and a misdemeanor of the

second degree, punishable as provided in s.

775.082, or s. 775.083. Upon a second

conviction for petit theft, the offender

shall be guilty of a misdemeanor of the first

degree, punishable as provided in s. 775.082

or s. 775.083. . . .

Florida's statutory provision makes no distinction between petit

theft and attempted petit theft, and no distinction will be made

by this Administrative Law Judge. Petitioner was convicted of a

second degree misdemeanor.

21. The conviction of petit theft is considered along with

other factors in determining Petitioner's good moral character.

Rule 61-20.001(5)(b)1, Florida Administrative Code. Petitioner

has the burden to demonstrate that he possesses good moral

character in accordance with the statutory and rule provisions.

Rule 61-20.001(5), Florida Administrative Code. Petitioner also

has the responsibility to present mitigating circumstances, if

any. Rule 61-20.001(5)(b)6, Florida Administrative Code.

22. Petitioner failed to establish that he possesses good

moral character. Petitioner failed to indicate on his

application for licensure that he had any criminal history. When

confronted with his criminal history, Petitioner provided the

information regarding his criminal history. All the unlawful

acts evidence that Petitioner has exhibited a pattern of unlawful

behavior even though not all of the unlawful acts in and of

themselves are directly related to the professional

responsibilities of a community association manager.

Rule 61-20.001(5)(b)3, Florida Administrative Code. Moreover,

Petitioner failed to demonstrate mitigating circumstances.

Rule 61-20.001(5)(b)6, Florida Administrative Code.

23. The evidence also demonstrated that a substantial

connection between the lack of good moral character of Petitioner

and the professional responsibilities of a community association

manager exists and that Petitioner's lack of good moral character

is supported by clear and convincing evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and Professional

Regulation, Community Association Managers, enter a final order

denying the application of Jerry George Sardone, Jr., for

licensure as a community association manager by examination.

DONE AND ENTERED this 29th day of April, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of April, 1999.

ENDNOTES

1/ Petitioner objected to Respondent's Exhibits numbered 2, 3,

and 6. The Exhibits were admitted over objection.

2/ There was no testimony or documents explaining the definition

of "conditional discharge." As a result, it is not known what

the term "conditional discharge" means.

COPIES FURNISHED:

Robert P. Foley, Esquire

Comeau Building, Suite 711

319 Clematis Street

West Palm Beach, Florida 33401-4621

Thomas G. Thomas

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

William Woodyard, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Edward Broyles, Executive Director

Regulatory Council of Community

Association of Managers

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

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.