STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD T. MOONEY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1258

)

GEORGE R. BRUMFIELD, )

)

Respondent. )

)

APPEARANCES

For Respondent: Allen P. Allweiss, Esquire

Alweiss and Kay 5362 Central Avenue

St. Petersburg, Florida 33707

For Petitioner: Vaughan David Hulse, Esquire

Associate Counsel

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789 RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 24, 1976, in St. Petersburg, Florida.

1. The Florida Real Estate Commission, through its representative, Harold

   T. Mooney (Petitioner hereafter), filed an Administrative Complaint against George R. Brumfield (Respondent hereafter) on or about June 29, 1976. In Count One of the Complaint it is alleged that the Respondent on or about January 16, 1975, was found guilty of accepting unauthorized compensation as charged in Information Number CR-75-76 by a jury and by reason thereof, Respondent has been guilty of a crime against the laws of this state involving moral turpitude, or fraudulent or dishonest dealing in violation of Subsection 475.25(1)(e), Florida Statutes. In Count Two it is alleged that the Respondent on or about January 16, 1975, was found guilty of accepting unauthorized compensation as charged in Information CR-75-57 by a jury and by reason thereof, he has been guilty of a crime involving moral turpitude, or fraudulent or dishonest dealing in violation of Subsection 475.25(1)(e), Florida Statutes. In Count Three of the Complaint it is alleged that the allegations alleged in Count One and Two of the Complaint were brought and occurred while the Respondent was in a position of public trust, to wit: a duly elected and sworn member of the Board of County Commissioners, County of Pinellas, State of Florida. It is alleged that by reason of the foregoing that the Respondent has been guilty of a course of conduct or practices which show that he is so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors of those with whom he may sustain a confidential relation, may not safely be

   entrusted to him in violation of Subsection 475.25(3), Florida Statutes. Based on these allegations, the Florida Real Estate Commission, hereinafter called Commission, seeks to revoke or suspend, or otherwise discipline the Petitioner who holds License No. 0010739.

   
   

2. The Commission offered ten exhibits into evidence which were received. The Respondent filed an Answer to the Administrative Complaint denying the violation on his part of any of the laws of the State of Florida or that he has been guilty of any course of conduct or practices which would show that he is incompetent and had been dishonest or untruthful. The final hearing was scheduled in accordance with a Notice of Hearing filed on September 9, 1976.

   
   

3. The Commission introduced into evidence, registration certificates that the Respondent is a registered broker and has been from 1972 up to and including March, 1976. Respondent's counsel objected to the introduction of the Information which the Commission introduced into evidence indicating that the Respondent had been found guilty of accepting unauthorized compensation. See Florida Real Estate Commission's Exhibits No. 4 and No. 5. The basis for the Respondent's objections to the admission of the exhibits into evidence is that they were not proper records or documents that should be introduced since the records introduced were incomplete and do not show the entire series of events which took place relative to the charges. Respondent's counsel urged that the complete record would show that he was never adjudicated guilty of the crime and therefore under the laws there never was a conviction. Additionally, Respondent's counsel objected on the grounds that the document was hearsay, prepared by someone else, no one was present to attest to the truth of it and since it was being offered for the truth thereof, it should be rejected because it does not show, according to Section 475.27, Florida Statutes, that there was a conviction. The Commission, on the other hand, takes the position that Florida Statutes 475, does provide that a conviction is prima facie evidence. Counsel for the Commission takes the position initially that you do not need a conviction and secondly, that the conviction, being prima facie, can be introduced without putting in additional proof of an Information having ever been filed or an indictment or jury finding of guilt or plea. Finally, counsel points out that Florida Statutes 475, does not state that there must be a conviction and an adjudication.

   
   

4. As to these matters, the Commission introduced a certified copy of court records referring to the above mentioned orders which indicated that adjudication of guilt was withheld and Respondent was placed on seven years probation to be served in Pinellas County and was ordered to pay $7,000 to the county at the rate of $1,000 a year, in addition to court costs. Respondent's counsel objected on the same grounds and in addition argued that the documents had not been related to the Respondent.

   
   

5. At the conclusion of the Commission's case, Respondent's counsel filed a motion to dismiss the charges on the grounds that adjudication was withheld and the Respondent was therefore not convicted. Respondent's counsel, citing Delta Truck Brokers, Inc. v. King, 142 So.2d 273, urges that the Commission is without authority to revoke Respondent's license herein because there has been no showing that he is disqualified based on the documents received into evidence. The court in that case was concerned with the requirements contained in Florida Statutes 323.31 et seq, wherein the Florida Railroad and Public Utilities Commission is authorized to regulate the auto transportation brokerage business. Subsection 3(a)(2) of that statute indicates that the qualifying criteria is that the applicant must not be convicted of engaging in the auto brokerage transportation business without a license. The court there found that

   unless it was shown that an applicant had actually been convicted of having engaged in the auto brokerage business without a license, there is no disqualification under that section. Section 475.25, Florida Statutes, states the grounds for revocation or suspension of a registrants's license as a real estate broker or salesman. The pertinent part of that statute that has to be considered is Subsection 475.25(1)(e):

   
   

   "Been guilty of a crime aginast the laws of this state or any other state or of the United States, involving moral turpitude, or fraudulent or dishonest dealing. "

   
   

   That statute goes on to read that the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state, shall be amdissible as prima facie evidence of such guilt. I find that the records introduced satisfy this requirement.

   
   

6. The undersigned has carefully considered the various positions of the parties and based on a careful examination of Section 475.25, Florida Statutes, the undersigned is of the opinion that the disqualification under that section is being guilty of a crime against the laws of this state. The remaining portion of the statutes relative to the records of a conviction relates to the admissibility of records. The fact that we are here dealing with a situation involving a withholding of adjudication by the court is not critical inasmuch as the Respondent had been found guilty of a crime involving moral turpitude against the laws of this state by a jury. The statute, Chapter 475, F.S., does not indicate that the grounds for revocation or suspension is that the party had been convicted of a crime. (Emphasis added). Based threron, I find that the Respondent has been guilty of the crimes as alleged in the Administrative Complaint filed in this cause on June 29, 1976.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

8. The parties were noticed pursuant to the provisions of Chapters 120 and 475, Florida Statutes.

   
   

9. The authority of the Commission is derived from Chapter 475, Florida Statutes.

   
   

10. The Respondent was found guilty of accepting unauthorized compensation as alleged in Counts One and Two of the Administrative Complaint filed by the Petitioner.

    
    

11. A conviction is not a necessary element of the grounds cited in Section 475.25(1)(e), Florida Statutes, for revoking or suspending a registrant's license.

    
    

12. The Respondent, by reason of the foregoing course of conduct, has shown that he is so dishonest and untruthful that the money, property, transactions and rights of those with whom he may sustain a confidential relation may not be safely entrusted to him. Florida Statutes, Section 475.25(3). Based thereon, I conclude that he is guilty of the allegations

contained in Count Three of the Administrative Complaint and is subject to having his registration revoked.

RECOMMENDED ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent be found guilty of the allegations contained in Counts One, Two and Three of the Administrative Complaint filed by the Petitioner herein. Accordingly, it is RECOMMENDED that the Respondent's registration with the Florida Real Estate Commission as a real estate broker be revoke.

RECOMMENDED this 30th day of October, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Allen P. Allweiss, Esquire 5362 Central Avenue

St. Petersburg, Florida 33707

Vaughan David Hulse, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD T. MOONEY,

Petitioner,

vs. CASE NO. 76-1258

GEORGE R. BRUMFIELD,

Respondent.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at its Executive Headquarters in Winter Park, Florida, on December 2, 1976,

Present: John R. Wood, Chairman

Maggie S. Lassetter, Vice-Chairman Levie D. Smith, Jr., Member

Appearances: Vaughan David Hulse, Attorney for Petitioner No Appearance for Respondent

This matter came on for Final Order on the Petitioner's Administrative Complaint, Answer filed thereto by the Respondent, George R. Brumfield, the Recommended Order of the Hearing Officer, together with the record, and the Commission having fully reviewed the entire record, the Findings of Fact and Conclusions of Law in the Recommended Order, and the Commission being fully advised in the premises, finds:

1.

According to the records of the Commission the Respondent George R. Brumfield's present address as registered with the Commission is as a broker, c/o Gulf Atlantic Investments, Inc., 1650 S. Ft. Harrison Avenue, Clearwater, Florida 33316.

2.

That the Hearing Officer's Recommended Order is supported by competent, substantial evidence and should be, and is hereby, adopted as the Order of the Commission.

3.

That the Commission finds in accordance with the Recommended Order of the Hearing Officer that the Respondent was found guilty of accepting unauthorized compensation as alleged in Count One and Two of the Administrative Complaint and the Respondent is guilty of a course of conduct which shows that he is so dishonest and untruthful that the money, property, transactions and rights of those with whom he may sustain a confidential relation may not be safely entrusted to him in violation of Subsection 475.25(3), Florida Statutes.

IT IS THEREUPON ORDERED that the Respondent, George R. Brumfield be, and he is hereby, adjudged guilty of a crime of moral turpitude, or fraudulent or dishonest dealing in violation of Subsection 475.25(1)(e), Florida Statutes, as charged in Count One of the Administrative Complaint; and guilty of a crime of fraudulent or dishonest dealing in violation of Subsection 475.25(1)(e), Florida Statutes, as charged in Count Two off the Administrative Complaint; and guilty of a course of conduct or practices which show that he is so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him, in violation of Subsection 475.25(3), Florida Statutes, as charged in Count Three of the Administrative Complaint.

IT IS FURTHER ORDERED that for such violations the registration of George

R. Brumfield be, and the same is hereby, revoked.

DONE and ORDERED at Winter Park, Florida, this 7th day of December, 1976.

JOHN R. HOOD

Chairman

MAGGIE S. LASSETTER

Vice Chairman

PIERE D. SMITH, JR.

Member

I CERTIFY that I mailed a copy of the foregoing Final Order to Allen P. Allweiss, Esquire, attorney for Respondent, c/o Allweiss and Kay, 5362 Central Avenue, St. Petersburg, Florida 33707, by United States mail this 7th day of December, 1976.

P. B. STAFFORD Executive Director

NOTICE TO RESPONDENT:

This Order will become effective on 6th day of January, 1977. However you have a right of review by an Appellate Court, if you desire.

VDH/km

Docket for Case No: 76-001258

Orders for Case No: 76-001258