98-001900 Miguel A. Torres vs. Regulatory Council Of Community Association Managers Status: Closed Recommended Order on Friday, August 21, 1998.

Summary: Applicant for community association manager did not have good moral character. He had been convicted of 11 crimes over five years, including assault, battery, theft, and fraud.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIGUEL A. TORRES, )

)

Petitioner, )

)

vs. ) Case No. 98-1900

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

COMMUNITY ASSOCIATION OF MANAGERS, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

on July 21, 1998, by video teleconference at Miami, Florida,

before SUSAN B. KIRKLAND, a duly designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miguel A. Torres, pro se

2899 Collins Avenue

Apartment No. 1420

Miami Beach, Florida 33140

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 ISSUES

Whether Petitioner's application for licensure as a

community association manager by examination should be granted.

PRELIMINARY STATEMENT

By letter dated March 13, 1998, Respondent, Department of

Business and Professional Regulation, Community Association of

Managers (Department), denied the application of Petitioner,

Miguel A. Torres (Torres), for licensure as a community

association manager by examination based on his failure to

establish good moral character as required by Section 468.433,

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

Administrative Code. Torres requested an administrative hearing,

and the case was forwarded to the Division of Administrative

Hearings for assignment to an administrative law judge. On

April 27, 1998, the case was assigned to Administrative Law Judge

Errol H. Powell. The case was transferred to Administrative Law

Judge Susan B. Kirkland to conduct the final hearing.

At the final hearing, Petitioner testified in his own

behalf. Petitioner's Exhibits A and A-1 through A-20 were

admitted in evidence. Respondent presented no witnesses.

Respondent's Exhibits 1-7 were admitted in evidence.

No transcript was ordered. The parties agreed to file

proposed recommended orders on or before July 31, 1998. The

parties timely filed their proposed recommended orders, which

have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Miguel A. Torres (Torres), admitted to being

sentenced on August 22, 1988, to one-year probation based on his

plea of nolo contendere to the charge of carrying a concealed

weapon.

2. In July 1990 Torres pled guilty to battery on a law

enforcement officer and disorderly intoxication. He was

sentenced to jail for three days and was given three-days credit

for time served prior to the imposition of the sentence.

3. On October 3, 1991, Torres was found guilty of escape,

resisting an officer without violence to his person, and criminal

mischief based on Torres' plea of nolo contendere to those

charges.

4. On October 16, 1992, Torres was adjudicated guilty of

aggravated assault with a deadly weapon and battery based on his

plea of nolo contendere . He was placed on probation for three

years.

5. On October 16, 1992, Torres pled nolo contendere to

three counts of unemployment compensation fraud and one count of

grand theft. The court adjudicated him guilty of those charges,

withheld sentencing, and placed Torres on probation for three

years.

6. On February 2, 1994, Torres was adjudicated guilty of

driving under the influence based on his plea of guilty to that

offense.

7. On February 11, 1994, Torres' probation was revoked, and

a sentence of three years was imposed for the crimes of

aggravated assault with a deadly weapon and battery. The

sentence was to run concurrently with the sentences for escape,

resisting arrest without violence, criminal mischief, and driving

under the influence.

8. Torres was incarcerated in the state prison system from

April 5, 1994, through June 30, 1995.

9. In his application to the Department of Business and

Professional Regulation, Community Association of Managers

(Department), Torres included letters of appreciation that he

received in 1976 relating to his performance in the Puerto Rico

Army National Guard; a letter of appreciation received from the

Board of Directors of the Sunset Villas Phase III, Assn., Inc, in

1989; a recommendation letter from the General Manager of the

Collins Plaza Hotel, dated April 11, 1997; a letter of

appreciation from the Chairman of COM'IN dated November 1997,

relating to his duties at the Collins Plaza Hotel; and a letter

of appreciation from the Department of Veteran Affairs for

Torres' assistance as a volunteer at the VA Medical Center during

Hurricane Andrew.

10. Torres also furnished to the Department a letter from

the Board of Directors of Mar Del Plata Condominium Assn., Inc.,

stating that Torres had demonstrated his professionalism to their

satisfaction and requesting that Torres' date of examination be

expedited so that Torres could accept the Board of Directors'

offer of employment as manager of the condominium association.

11. Torres did not indicate on his application whether his

civil rights had been restored after his felony convictions, and

no evidence was presented at the final hearing to show that his

civil rights had been restored.

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. The Department denied Torres' application to take the

examination for license as a community association manager on the

basis that Torres failed to establish good moral character as

required by Section 468.433, Florida Statutes, and Rules 61-

20.001(5)(a) and (b), Florida Administrative Code. Section

468.433(1), Florida Statutes, 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 each applicant. This 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; and

2. The finding of 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.

14. Rules 61-20.001(5)(a) and (b), Florida Administrative

Code, provide:

(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 good 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 involving 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 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, 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 the purposes of licensure under

Chapter 468, Part VIII, Florida Statutes:

1. If commission of a second degree

misdemeanor is the only reason that 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 character;

2. If the applicant 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, rules of society, or the rights

of others. All unlawful behavior, even

though any one of the unlawful acts by itself

might 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 moral character needed to perform

the duties and to 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

relating 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 the immediate family

members, who have known 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. . . .

15. There was no evidence presented to show that Torres'

civil rights have been restored. Even if Torres' civil rights

have been restored, he has been convicted of fraud, theft,

assault, and battery, offenses, which pursuant to

Rule 61-20.001(5)(b)2, Florida Administrative Code, are directly

related to the professional responsibilities of a community

association manager.

16. Torres argues that the crimes of which he has been

convicted are not related to the professional responsibilities of

a community association. He further argues that

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

with Section 468.433(1)(b), Florida Statutes, because the rule

creates a presumption that convictions of assault, theft, fraud,

and battery are directly related to the duties and

responsibilities of a community association manager. Torres has

not challenged the administrative rule pursuant to Section

120.56, Florida Statutes; thus, the validity of the rule is not

at issue in this case.

17. Notwithstanding Rule 61-20.001(5)(b)(2), the crimes of

assault, battery, fraud, and theft directly relate to the

professional responsibilities and duties of a community

association manager as set forth in Section 468.431(2), Florida

Statutes. Fraud and theft relate to the responsibilities dealing

with the control and disbursement of the funds of the

association. Assault and battery are crimes against persons. As

a community association manager, Torres would come in day-to-day

contact with members of the association and persons who would be

performing maintenance and other services for the association.

18. In his application, Torres argues that the offenses

were isolated occurrences that were contrary to his normal

pattern of behavior and occurred during a brief period of time.

The crimes occurred over a five and one-half year period, which

is not a brief period. Torres was convicted of carrying a

concealed firearm, battery on a law enforcement officer,

disorderly intoxication, escape, resisting an officer without

violence to his person, criminal mischief, aggravated assault

with a deadly weapon, battery, unemployment compensation fraud,

grand theft, and driving under the influence. Convictions of

eleven offenses do not constitute isolated occurrences. Torres'

conduct shows a pattern of unlawful behavior which would indicate

that Torres has little regard for the law, rules of society, or

the rights of others.

19. Torres lacks good moral character and is not qualified

for licensure as a community association manager by examination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding that

Miguel A. Torres lacks good moral character and denying his

application for licensure as a community association manager.

DONE AND ENTERED this 21st day of August, 1998, 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]

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of August, 1998.

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 32399-0792

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

Miguel A. Torres, pro se

2899 Collins Avenue

Apartment No. 1420

Miami Beach, Florida 33140

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.