98-003794 Fred Storch vs. Regulatory Council Of Community Association Managers Status: Closed Recommended Order on Monday, March 22, 1999.

Summary: Applicant failed to reveal on application that his mortgage broker`s license had been suspended and revoked. Failed to provide full and complete disclosure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED STORCH, )

)

Petitioner, )

)

vs. ) Case No. 98-3794

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, COMMUNITY )

ASSOCIATION MANAGERS, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

on February 10, 1999, at West Palm Beach, Florida, before

Susan B. Kirkland, a duly designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Fred Storch, pro se

7782 Edinburough Lane

Delray Beach, Florida 33446

For Respondent: Thomas G. Thomas

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a

community association manager by examination should be granted.

PRELIMINARY STATEMENT

On July 15, 1998, Respondent, Department of Business and

Professional Regulation (Department), issued a Notice of Intent

to Deny Community Association Manager's Application for Licensure

by Examination, advising Petitioner, Fred Storch (Storch), that

the Department intended to deny his application for licensure.

As its basis for denial, the Department stated that Storch failed

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.

Storch requested an administrative hearing, and the case was

referred to the Division of Administrative Hearings on August 25,

1998, for assignment to an A dministrative L aw J udge.

At the final hearing, Storch testified in his own behalf and

presented no exhibits. Respondent called no witnesses.

Respondent's Exhibits A-G were admitted in evidence.

No transcript was ordered. The parties agreed to file

proposed recommended orders by February 22, 1999. Petitioner did

not file a proposed recommended order. Respondent timely filed a

P roposed R ecommended O rder, which has been considered in

rendering this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Fred Storch (Storch), filed an application

with Respondent, Department of Business and Professional

Regulation, Community Association Managers (Department) on

April 14, 1998, for licensure as a community association manager

by examination.

2. The application contained the following question:

Have you now or have you ever been licensed

or certified in any profession such as real

estate, insurance, securities, etc., in

Florida or in any other state, province,

district, territory, possession or nation?

If the applicant answered "yes" to the question, the application

required the applicant to list the name of the profession, the

license number, the date the license was first obtained, and the

current status of the license. Storch answered "yes" to the

question and indicated that he currently had a real estate

salesperson's license in Florida and a real estate broker's

license in New York.

4. At the final hearing, Storch testified that he had a

current mortgage broker's license and a real estate salesperson's

license from New York and that he was currently licensed in

Florida as a real estate salesperson and had been licensed in

Florida as a mortgage broker.

5. The application contained the following question:

Has any license, certification, registration,

or permit to practice any regulated

profession been revoked, annulled or

suspended in this or any other state,

province, district, territory, possession or

nation or is any proceeding now pending?

This includes any disciplinary action taken

against you such as a reprimand, probation,

etc.

Storch answered "no" to the question.

5. The following question was also on the application:

Have you ever relinquished or withdrawn from

any license, certification, registration or

permit to practice any regulated profession

in this or any other state, province,

district, territory, possession or nation or

is any proceeding now pending?

6. Storch answered "yes" to the question and provided the

following explanation.

I relinquished my license as a Mortgage

Broker because I was unable to submit to an

audit on a timely basis due to my son's poor

health. My son is afflicted with epilepsy,

which cannot be controlled with medication.

He is having surgery on April 21, 1998 at

George Washington University Hospital,

Washington, D.C., to eliminate the cause of

his seizures. I have enclosed the

documentation from the Comptroller's Office

and my son's doctor.

7. In 1994, Storch and the Florida Department of Banking

and Finance (DBF) entered into a Stipulation and Consent Order

which was incorporated in a Final Order, dated January 13, 1995.

Storch and DBF agreed that Storch's mortgage broker's license was

suspended until a location and occupational license was obtained.

Storch agreed to pay an administrative fine of $500 and agreed to

cease and desist all violations of Chapter 494, Florida Statutes.

8. On February 12, 1997, DBF entered a Default Final Order

and Notice of Rights, finding that Storch had acted as a mortgage

broker without a current active license and that Storch had

failed to provide his books and records for inspection as

requested by DBF. Storch was ordered to cease and desist from

violating Chapter 494, Florida Statutes, and all registrations

and licenses previously issued to Storch, which included his

mortgage broker's license, were revoked.

9. By letter dated February 13, 1997, Storch advised DBF

that he would be willing to turn in his license if DBF would not

pursue any action against him then or in the future.

10. On September 18, 1997, the Department of Business and

Professional Regulation, Division of Real Estate, filed an

Administrative Complaint against Storch alleging that Storch had

violated Section 475.25(1)(s), Florida Statutes, because his

residential mortgage broker's license had been revoked.

11. On December 17, 1997, the Department of Business and

Professional Regulation, Division of Real Estate, entered a Final

Order, disciplining Storch's real estate salesperson's license.

The Final Order stated that Storch was guilty of violating

Section 475.25(1)(s), Florida Statutes, as charged in the

Administrative Complaint and required Storch to pay an

administrative fine of $100.00 and investigative costs of

$313.60.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

13. Section 468.433(1), Florida Statutes, sets forth the

requirements which an applicant for licensure as a community

association manager must meet in order to qualify to sit for the

examination and provides:

(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 substantial connection

between the lack of good moral character of

the applicant and the professional

responsibilities of a community association

manager.

2. The finding by the department of

lack of good moral character is supported by

clear and convincing evidence.

(c) When an applicant if 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 an

applicant to a rehearing and appeal.

14. Rule 61-20.001(5), Florida Administrative Code, further

delineates the requirements for establishing good moral character

and provides:

(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; and

2. The absence of civil lawsuits or

administrative actions decided adversely to

the applicant which involved matters bearing

upon moral character, including, for example:

fraud, dishonesty, misrepresentation,

concealment of material facts, or practicing

a regulated profession without a license or

certificate as required by law or rule; and

3. No prior history of violations by

the applicant of chapter 468, Part VIII,

Florida Statutes, any rule of the division

relating to community association management,

or any lawful order of the division

previously entered in a disciplinary

proceeding, or of failing to comply with a

lawfully issued subpoena of the division; and

4. The absence of other information

generated in the course of the application

process which negatively reflects on the

applicant's moral character including, for

example: gross misconduct or gross

negligence in the applicant's prior work

experience whether or not the prior work was

related to the professional responsibilities

of a community association manager; and

5. That the applicant has not committed

the following in connection with an

application:

a. Given to the division a check for

payment of any fee when there are

insufficient funds with which to pay the

same, if the applicant, upon notification by

the division, fails to redeem the check or

otherwise pay the fee within 30 days of the

date of written notification by the division;

or

b. Failed to provide full and complete

disclosure, or failed to provide accurate

information.

(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.

4. Whether the applicant is

disqualified from applying for a license by

reason of section 775.16, Florida Statutes,

pertaining to conviction of certain offenses

involving controlled substances.

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.

15. Storch has not demonstrated good moral character. He

did not make a full and complete disclosure and failed to provide

accurate information on his application for licensure as a

community association manager. In answer to the question on the

application concerning licenses and certificates, Storch did not

indicate that he had held a mortgage broker's license in Florida

and that he currently held a mortgage broker's license in

New York.

16. On his application, Storch stated that he had never had

a license revoked, suspended or annulled. Storch's Florida

mortgage broker's license had been suspended in 1994 and revoked

in 1997. Storch did not reveal either the revocation or

suspension.

17. On his application, Storch stated that he had

relinquished his mortgage broker's license, when in fact the

license had been revoked prior to Storch advising the Department

of Banking and Finance that he would relinquish his license under

certain conditions.

18. Storch did not reveal on his application that his

Florida real estate salesperson's license had been disciplined in

1997.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a Final Order be entered denying Fred

Storch's application for licensure as a community association

manager.

DONE AND ENTERED this 22nd day of March, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

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 22nd day of March, 1999.

COPIES FURNISHED:

Edward Broyles, Executive Director

Regulatory Council of Community

Association of Managers

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Thomas G. Thomas, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Fred Storch

7782 Edinburough Lane

Delray Beach, Florida 33446

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.