STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1818

) HILTON SYKES RENTAL AGENCY, E.H. ) SYKES and JOSEPH C. THOMAS, )

)

Respondents. )

)

RECOMMENDED ORDER

On December 9, 1976, at the Hillsborough County Courthouse Annex, Tampa, Florida, this matter was brought up for hearing to consider the Administrative Complaint filed by the Florida Real Estate Commission, Petitioner, against Hilton Sykes Rental Agency, E.H. Sykes and Joseph C. Thomas, Respondents.

APPEARANCES

For Petitioner: Vaughan David Hulse, Esquire

Florida Real Estate Commission Executive Offices

2699 Lee Road

Winter Park, Florida 32789

For Respondent Gerald W. Nelson, Esquire Thomas: 4590 West Kennedy Boulevard

Tampa, Florida

1. That Complaint alleges that Hilton Sykes Rental Agency, Inc. was an active corporate broker and that Elbert Sykes was an active broker in care of Hilton Sykes Rental Agency, Inc. and Joseph C. Thomas was an active salesman employed by the Respondent agency. Further, on or about June 12, 1974, the United States of America filed a civil action against the Respondents charging them with violation of the Fair Housing Act of 1968, 42 U.S.C. 3601 et seq. On or about September 18, 1975, U.S. District Court for the Middle District of Florida, Tampa Division, entered an Order including Findings of Fact and Conclusions of Law, where it was found that the Respondents adhered to and implemented a racially discriminatory housing policy in violation of the above referenced act. Therefore, the Complaint charges that by reason of the foregoing the Respondents are guilty of fraud, breach of trust, trick, scheme or device in a business transaction and of a breach of duty imposed on them by law in violation of Section 475.25(1)(a), F.S.

   
   

2. At the beginning of the Petitioner's presentation it was announced that charges were being withdrawn against Hilton Sykes Rental Agency, Inc. and E.H. Sykes. Certain documentary evidence was then moved to be admitted into the record of this hearing. Petitioner's Exhibit 1-5 were admitted. They consisted of records of the Florida Real Estate Commission showing the licenses of the

   Respondents and the Complaint and Answer filed in the action in U.S. District Court referenced in the Complaint filed by the Florida Real Estate Commission. Petitioner's Exhibit No. 6 which is the Findings of Fact, Conclusions of Law and Order of the United States District Court for the Middle District of Florida, Tampa Division, was identified and moved to be introduced by the Florida Real Estate Commission. After considerable discussion, introduction of this piece of evidence was denied. Following this the Florida Real Estate Commission rested its case.

   
   

3. The sufficiency of the proof submitted by the Florida Real Estate Commission rests upon whether Petitioner's Exhibit No. 6 should have been admitted and whether the Complaint in this case actually charges an offense under Chapter 475, Florida Statutes. Petitioner's Exhibit No. 6 is a judgment of the U.S. District Court in a civil matter filed by the United States of America against the Respondents. The Real Estate Commission relied upon Section 92.06, F.S., which states:

   
   

   "All final judgments and decrees heretofore or hereafter to be rendered and entered in the United States District Courts of this state and certified copies thereof are de- clared to be admissible as prima facie evi- dence in the several courts of this state of the entry and validity of such judgments and decrees."

   
   

4. Upon consideration of this statute it is clear all it authorizes is the entry of certified copies of judgments to prove the entry and validity thereof. It is well settled in this and every other state that judgments in civil or criminal cases are not admissible to prove substantive facts contained therein except generally upon pleas of guilty which is not the case with Exhibit No. 6. Florida, furthermore, is in the minority position among the several states that even a plea of guilty is not admissible in a subsequent civil action to prove the facts contained in the criminal charge. Even a criminal conviction in the State of Florida cannot be admitted as evidence to prove a fact in a civil case. State v. Dubose, 11 So.2d 477.

   
   

5. Furthermore, the standard of proof in a criminal case is higher than in a civil case. It follows, therefore, that if judgments in criminal cases are not admissible to prove facts in a later case then certainly judgments in civil cases likewise are inadmissible and incompetent to prove substantive fact contained in that judgment in a separate proceeding. For the above reasons, the Petitioner's Exhibit No. 6 was not admitted at the hearing in this case.

   
   

6. Furthermore, the Complaint in this case alleges that by reason of having this particular judgment entered against them the Respondents are therefore guilty of fraud, breach of trust and dishonest dealing in a business transaction in violation of Chapter 475, F.S. Upon close examination it is apparent that the Complaint does not charge a violation of that chapter. Having a judgment taken against an individual is not necessarily make that individual guilty of fraud. The underlying facts which led to that judgment if proven competently might lead to a conclusion that the Respondents were guilty of fraud, however, it is not the entry of the judgment which would cause the Respondents to be guilty of fraud. It is the discriminatory housing practices that were charged to have been engaged in which only could lead to that conclusion. Here, however, the Respondents were not charged with discriminatory housing practices, they were charged with having a judgment taken against them

   and by virtue of that alleged to be guilty of fraud and dishonest dealing. Consequently, it is clear that the Complaint in this case does not adequately charge a violation of Chapter 475. The Real Estate Commission did not call any witnesses to testify in this proceeding even though the judgment in question recited the names of many witnesses in the proceeding before the U.S. District Court in Tampa against whom alleged discriminatory practices had been conducted by the Respondents herein.

   
   

7. It is apparent that the evidence submitted in this cause and the Complaint filed by the Florida Real Estate Commission are inadequate to find the Respondents in violation of any state statute.

It is, therefore, RECOMMENDED that the charges against the Respondents be dismissed.

DONE and ENTERED this 17th day of January, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

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

(904) 488-9675

COPIES FURNISHED:

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

Winter Park. Florida 32789

Gerald W. Nelson, Esquire 4590 W. Kennedy Boulevard Tampa, Florida

Docket for Case No: 76-001818

Orders for Case No: 76-001818