Fla. Admin. Code Ann. R. 61-20.001 - Licensing Procedure for Manager's License

(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.

(b) "True copy" or "Certified true copy." These phrases mean a copy of a court or government agency paper which bears an original certification of the clerk or other official of the court or agency to the effect that the papers are accurate copies of the court or agency.

(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.

(2)

(a) No person who is subject to the provisions of these rules shall provide community association management services without first complying with the requirements of chapter 61-20, and rule division 61E14, F.A.C.

(b) Application for License. All persons subject to the provisions of these rules shall apply to the department for a community association manager's license, on Form DBPR CAM 1, Application for Community Association Manager Examination, incorporated by reference in subsection 61-35.020(1), F.A.C. The application fees as set forth in rule 61E14-3.001, F.A.C., shall be included with the application.

(3) Review of Application.

(a) Within 30 days of the receipt of the application the department shall determine if the application is complete. A complete application refers to an approved department application form which contains all of the information requested on the form and all documentation and fees required to be furnished with the application (including the applicant's criminal history record provided by the Florida Department of Law Enforcement), as required by the application or by any statute or rule of the department. The applicant's criminal history records, provided by the Florida Department of Law Enforcement upon request by the department, must be received by the department for the applicant's application to be considered complete. An application which contains errors, omissions, or which requires additional or clarifying information is not considered a complete application.

(b) Within 15 days of receipt of the application, the department shall request the applicant's criminal history record from the Florida Department of Law Enforcement. If the criminal history record provided by the Florida Department of Law Enforcement shows law enforcement information not included on the applicant's application, the department will notify the applicant in writing of the discrepancy and the applicant shall be required to provide an explanation and documentation as necessary to provide the department the information needed to be fully informed of the applicant's criminal record. Where an arrest or charge was dismissed, or formal statement of nolle prosse by the prosecuting authority was issued, or otherwise disposed of without resulting in a criminal record as defined herein, a copy of the document (need not be certified true copy) issued by the court or other government agency resulting in such disposition shall be sufficient.

(c) If the applicant has been convicted of sale of or trafficking in, or conspiracy to sell or traffic in, a controlled substance as specified in section 775.16, F.S., the applicant must submit, as part of the application, documentation that the conditions of section 775.16(2), F.S., have been met.

(d) If the application is not complete, the department shall, within 30 days of receipt, notify the applicant in writing and request the additional information and documentation needed to complete the application. The applicant shall have 60 days from the date of the notice in which to correct the errors or omissions and provide the additional information or explain in writing why such errors or omissions cannot be corrected or such information cannot be provided within 60 days.

(4) General Procedure.

(a) If the deficiency is not timely corrected or the applicant fails to provide any explanation why it cannot respond to such a request, the application shall be denied. The application shall be denied solely on the grounds that the application is not complete. If the applicant timely files some but not all of the requested information or corrects some but not all of the errors or omissions in response to the department's notice, the timely filed information and other materials shall be included in the application file and no additional deficiency notice shall be sent by the department. At the expiration of 60 days after the date of the deficiency notice, the department shall make a decision to approve, subject to meeting the examination requirements of rule 61E14-1.002, F.A.C., or deny the application based on the information and other materials contained in the application file and shall notify the applicant of the decision within 90 days from the applicant's last timely filed information in response to the department's deficiency notice.

(b) If the applicant files a timely response indicating that the requested information and corrections cannot be supplied, the department shall make a decision as to whether the application is approved, subject to meeting the examination requirements of rule 61E14-1.002, F.A.C., or denied, based on the information currently contained in the application file and so notify the applicant of the decision within 90 days from the applicant's last timely filed information in response to the department's deficiency notice.

(c) If all requested information and corrections are timely filed, the department shall make a decision to approve, subject to meeting the examination requirements of rule 61E14-1.002, F.A.C., or deny the application and shall notify the applicant of the decision within 90 days of receipt of the information and other materials which make the application complete.

(d) The applicant shall supply the department with required documentation (as specified below) as to all matters which comprise the applicant's criminal record. All documentation must be completely legible. Required documentation generally includes, as applicable:

1. For arrests, the police arrest affidavit or arrest report or similar document,

2. The charges,

3. Plea, judgment and sentence; and,

4. Order of entry into pre-trial intervention, and where applicable, the order of termination of pre-trial intervention showing dismissal of charges.

(e) Situations may arise where some government agency's records suggest that a criminal record exists regarding the applicant (e.g., FDLE criminal history records show a criminal conviction in another state), but the court or law enforcement agency that should have the actual records denies having them or cannot produce them or cannot produce whole, legible copies of them. In such instances the burden is upon the applicant to show by clear and convincing evidence that the records are not available or do not exist. It is generally sufficient if the applicant supplies a written statement on the letterhead of the agency, that would apparently be the custodian of the record, signed by a representative of the agency, stating that they have no record of such matter, or the record is lost or was damaged or destroyed, or otherwise stating why the record cannot be produced. Upon receipt of such a document, the burden shifts to the department to find other evidence to establish the existence of the matter, and failing to find same, the department shall enter into the applicant's department record a memorandum or other documentation to memorialize the situation, including why the department took no action on the apparent suggestion of criminal record, and thereafter the department does not hold the matter against the applicant.

(5) Good Moral Character.

(a) Unless the department denies the application for incompleteness under paragraph (4)(a) of this rule, the department 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, F.S., any rule of the department relating to community association management, or any lawful order of the department previously entered in a disciplinary proceeding, or of failing to comply with a lawfully issued subpoena of the department; 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 department 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 department, fails to redeem the check or otherwise pay the fee within 30 days of the date of written notification by the department, 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 department 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, F.S.:

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 providing a 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, F.S., pertaining to conviction of certain offenses involving controlled substances.

5. Conduct of the applicant relied upon by the department 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 department 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 department 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 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 department.

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, F.S., the application will be denied. However, the applicant will be given an opportunity by the department to waive the time limits of this rule and section 120.60, F.S., if it appears to the department 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 department with evidence of good moral character.

(6) If the application is denied, the department shall proceed as provided in section 120.60, F.S. 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.

Notes

Fla. Admin. Code Ann. R. 61-20.001

Rulemaking Authority 455.2035 FS. Law Implemented 120.60, 468.433, 468.435 FS.

New 5-5-88, Amended 3-22-89, 2-5-91, Formerly 7D-55.004, Amended 11-23-93, 4-28-94, Formerly 61B-55.004, Amended by Florida Register Volume 43, Number 186, September 26, 2017 effective 10/10/2017.

New 5-5-88, Amended 3-22-89, 2-5-91, Formerly 7D-55.004, Amended 11-23-93, 4-28-94, Formerly 61B-55.004, Amended 10-10-17.