vs. ) CASE NO. 75-1306
) PROGRESS DOCKET NO. 2699
BRUCE R. HERMAN, ) Volusia County
Respondent. )
A hearing was held in the above styled cause pursuant to notice on November 18, 1975, at 1:30 p.m. in the Florida Real Estate Conference Room, 2699 Lee Road, Winter Park, Florida, before Stephen F. Dean, assigned Hearing Officer of the Department of Administration, Division of Administrative Hearings.
This case arose from an Administrative Complaint filed by the Florida Real Estate Commission against Bruce R. Herman, who requested a formal hearing concerning the allegations contained therein whereupon the matter was referred by the Florida Real Estate Commission to the Division of Administrative Hearings for formal hearing.
For Petitioner: LOUIS B. GUTTMANN, III, Esquire Staff Counsel
For Respondent: THOMAS V. INFANTINO, Esquire
No witnesses were called by either party during the hearing. Prior to the hearing a short pre-hearing conference was bid off the record. As result of this conference the parties agreed and it was thereafter stipulated on the record that Count 3 of the Administrative Complaint would be dropped; Exhibits 1, 2, and 3 were marked and received into evidence by stipulation, and the parties stipulated that there was no requirement for an applicant for registration as a real estate salesman to update or amend his or her application to reflect any changes in the information provided in the application after its submission to the Florida Real Estate Commission. The Florida Real Estate Commission presented a certified copy of an Order of the Circuit Court of Columbia County, Florida, in Case No. 73-575CF, State of Florida vs. Bruce R. Herman, as Exhibit 4 which was received into evidence over the objection of Counsel for Bruce R. Herman. The aforementioned exhibits constituted the
evidence presented to the Hearing Officer on the issues raised in the Administrative Complaint.
Count 1 of the Administrative Complaint alleges that Bruce R. Herman had violated Subsection 475.25(1)(e), Florida Statutes, because the Defendant is guilty of the crime against the laws of this State involving fraudulent or dishonest dealings; and that Bruce R. Herman had been guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing, trick, scheme or device in a business transaction against the laws of the state constituting a violation of Subsection 475.01(1)(a), Florida Statutes.
Count 2 of the Complaint alleges that he Florida Real Estate Commission granted or issued to Bruce R. Herman registration as a real estate salesman through mistake or inadvertence by reason of said Commission not having knowledge of Bruce R. Herman's arrest between the time of filing his application for registration and the time that said application was approved and a certificate of registration issued to him.
Concerning the allegations of Count 1, Exhibit 1 reveals that, Bruce R. Herman filed an application for registration as a real estate salesman on August 31, 1973, with the Florida Real Estate Commission. It further shows that Bruce
R. Herman received his registration as a Florida real estate salesman on January 25, 1974, and has been continuously registered with the Commission since that time. Exhibit 4 indicates that on May 24, 1974, the Circuit Court of Columbia County entered an order withholding adjudication of guilt and placing Defendant on probation in the case of State of Florida vs. Bruce R. Herman who was the defendant of the criminal case State of Florida vs. Bruce R. Herman, Case No.
73-575CF. Although the Commission presented no evidence that Bruce R. Herman who was the defendant of the criminal case State of Florida vs. Bruce R. Herman, Case No. 73-575CF, was the Bruce R. Herman who was a registered real estate salesman, because of the surrounding circumstances and uncommon name, it will be presumed that they are the same person. Exhibit 4 shows that the criminal defendant, Bruce R. Herman, entered a plea of guilty to the offense of attempt to obtain controlled drug. Exhibit 4 further recites as follows:
"It appearing to the satisfaction of the Court that you are not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that you should presently be adjudged
guilty and suffer the penalty authorized by law;
Now, therefore, it is ordered and adjudged that the adjudication of guilt and imposition of sentence are hereby withheld, and that you are hereby placed on probation for a period of three (3) years under the supervision of the Florida Probation and Parole Commission and its supervisors, such supervision to be subject to the provisions of the laws of this State.
CONCLUSIONS OF LAW
Subsection 475.25(1)(e) provides that the registration of a registrant may be suspended for a period not exceeding two (2) years upon a finding of fact showing that the registrant has
"(e) Been guilty of a crime against the laws of this state or any other state or the United States, involving moral turpitude, or fraudulent or dishonest dealings; and the record of a conviction certified or authenticated in such form as to be admissible in the evidence under the laws of the state, shall be admissible as prima facie evidence of such guilt;. . ."
Exhibit 4 clearly states that Bruce R. Herman was not adjudged guilty of any crime against the laws of the State of Florida.
Therefore with regard to the alleged violation of Subsection 475.25(1)(e), Florida Statutes, the Hearing Officer finds, as a matter of law, that the Circuit Court of Columbia County, did not find the criminal defendant Bruce R. Herman guilty of a crime against the laws of the State of Florida.
The allegations as set forth in the Administrative Complaint which relate to the provisions of Subsection 475.25(1)(a), Florida Statutes, however differ from the provisions of Subsection 475.25(1)(e), in that they may be proved before an independent Hearing Examiner.
The provisions of Subsection 475.25(1)(a), provide for the suspension of the registration of a registrant upon a finding of fact showing that the registrant has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction. The language of the statutory provision limits all of the prohibited activity to occurrence within a business transaction. The Florida Real Estate Commission presented Exhibit 4 as the sole proof of the violation of this subsection by the registrant. The Florida Real Estate Commission argued that Exhibit 4 is an admission of guilt of violation of Subsection 475.25(1)(a), F.S., or in the alternative, an admission of guilt of violation of the provisions of Subsection 893.13(3)(a), F.S. The admission contained in Exhibit 4, which does not reference any statutory citation regarding the offense, cannot be considered an admission to a violation of Subsection 893.13(3)(a), F.S., the provisions of which go far beyond the statement of the plea in Exhibit 4: "Entered a plea of guilty to the offense of attempt to obtain controlled drug." The admission contained in Exhibit 4 must be limited to the language contained therein, and can only be considered as evidence of one of the elements of the alleged violation of Subsection 475.25(1)(a),F.S.
While illegal, the attempt to obtain controlled drug does not per se constitute fraud, misrepresentation, concealment, false promises, false pretenses, trick, scheme or device, culpable negligence, dishonest dealing, or breach of trust within any business transaction. While the admission could be considered evidence of some dishonest dealing, Subsection 475.25(1)(a), limits the prohibited actions to those occurring within a business transaction. The only evidence in this case of any business transaction related to the fact of
the offense to which Bruce R. Herman entered a plea are some references in the deposition of Lana Arnold based upon her perusal of the records of Bruce R. Herman which were prepared by persons other than herself. Not only is her testimony qualified by the constant use of "I believe," "I think", and "I guess", but it is hearsay. As it relates to the circumstances of the offense to which the plea was entered, her testimony cannot form the basis of a finding of fact of how the offense occurred when unsupported by non-hearsay evidence. No other evidence regarding how the offense occurred was presented by the Florida Real Estate Commission. Having failed to show a business transaction, the Florida Real Estate Commission did not prove a necessary element of the offense as provided in Subsection 475.25(1)(a), F.S.
With regard to Count 2, the Florida Real Estate Commission presented no evidence with regard to the issuance of registration as a real estate salesman to Bruce R. Herman by inadvertence or mistake. The Florida Real Estate Commission argued at the hearing that Count 2 of the Complaint by reference to Subsection 475.25(2), F.S., placed the registrant on notice of the Commission's new theory that having been placed on probation constituted confinement in any state or federal prison and thereby formed a basis for revocation of the registration of a registrant. Although the rules of pleading in administrative hearings are relaxed, it is essential to due process that an individual be apprised reasonably of the allegations against him with sufficient definiteness and clarity to allow him to prepare an adequate defense. While a miscitation of statutory section authority is not necessarily fatal to an Administrative Complaint, there is a substantial difference between the allegations stated in Count 2 of the Administrative Complaint and the position taken by the agency at hearing that citation of the statutory section is sufficient to give notice of the agency's intent to assert a violation of a separate and substantially different provision of the subsection. Count 2 as stated in the Complaint was not established by the presentation of any evidence, and because Count 2 does not give fair notice of the agency's contentions at hearing, the evidence submitted should not be considered with regard to probation being confinement in a state or federal prison. However, having received all of the evidence in this case and having considered the provisions of Subsection 475.25(2), it is clear in any event from Exhibit 4 that the Court withheld adjudication of guilt and imposition of any sentence. Bruce R. Herman is not confined in a state or federal prison. Further, Section 944.02(4), F.S., defines prisoner as any person who is under arrest and in lawful custody of any law enforcement officer or any person convicted and sentenced by a Court and committed to any municipal or county jail or state prison; prison farm or penitentiary, or to the custody of the Division of Corrections as provided by law. Exhibit 4 clearly states that Bruce R. Herman was placed on probation for a period of three (3) years under the supervision of the Florida Probation and Parole Commission and its supervisors. Therefore under the laws of the State of Florida, Bruce R. Herman is not a prisoner within the meaning of the Florida Penal Code and therefore is not confined in a prison within the meaning of Section 475.25(2), F.S. Therefore the Hearing Officer finds both as a matter of fact and as a matter of law that the Florida Real Estate Commission has not proven the allegations contained in Count 2.
Wherefore, the Hearing Officer recommends that the allegations against Bruce R. Herman be dropped.
DONE and ORDERED this 12th day of December, 1975.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Louis B. Guttmann, III, Esquire Staff Counsel
Thomas V. Infantino, Esquire Post Office Box 542
