STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UPTON B. MACKALL, )

)

Petitioner, )

)

vs. ) CASE NO. 77-014

)

HOWARD T. DODGE, )

)

Respondent. )

)

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 March 14, 1977, in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Bruce I. Kamelhair, Esquire

Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: William B. Seidel, Esquire

Justice Building

524 South Andrews Avenue

Ft. Lauderdale, Florida 33301

The Florida Real Estate Commission, through its representative, Upton B. Mackall, filed an Administrative Complaint against Howard T. Dodge, Defendant, on December 15, 1976, alleging in, pertinent part that the Defendant engaged in conduct violative of Chapter 475.25(1)(a) and (e), Florida Statutes based on allegations that he was guilty of selling unregistered securities within the State and was guilty of selling unregistered securities without registering as a dealer or salesman contrary to Florida Statutes 517.02(1), 517.07 and 517.302.

Based thereon the Commission seeks to revoke or suspend or otherwise discipline the licensee and his right to practice thereunder.

Based upon my observation of the witnesses and their demeanor while testifying, I make the following:

FINDINGS OF FACT

1. The Defendant was at all times material herein registered with the Florida Real Estate Commission as a real estate salesman.

   
   

2. On May 3, 1974, the Acting State Attorney filed before the Circuit Court in and for Broward County, Florida an Amended Information charging the Defendant with the offenses of the sale of unregistered securities and the sale

   of unregistered securities without being registered as a dealer or salesman in violation of Florida Statutes 517.02(1), 517.07, and 517.12(1). On October 11, 1973, the Defendant entered a plea of N0L0 CONTENDERE to both offenses and Judge Humes T. Lasher, Circuit Judge in and for the Seventeenth Judicial Circuit, Broward County, Florida, entered an order withholding adjudication of guilt and placed the Defendant on probation for a period of two years. See Commission's Exhibits 1 and 2.

   
   

3. Counsel for the Commission takes the position that the Defendant's entry of a NOLO CONTENDERE plea amounts to an admission and therefore a violation of Chapter475.25(1)(a) and (e), Florida Statutes.

   
   

4. The Defendant contrary to the position taken by the Commission, avers that no such inference should be deduced from his entry of a NOLO CONTENDERE plea. He further contends that the plea was entered only because of his wife's mental condition and the extreme hardships brought about by above cited charges, and further that he had never been found guilty or the convicted of any crime in this or any other state. In mitigation, the Defendant testified to his honorary and exemplary military service.

   
   

5. Chapter 475,25 sets forth grounds for revocation or suspension of a registrant's license with the Florida Real Estate Commission. Subsection 1(a) thereof provides in pertinent part that a registrant's license may be suspended based upon a finding of fact showing that the registrant has: (a) Been guilty of fraud, misrepresentation, concealment, false promises etc. in this state or any other state, nation or territory. . . or

   
   

   (e) Been guilty of a crime against the laws of this state or any other state or of the United States involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of this state, shall be admissible as prime facie evidence of such guilt.

   
   

6. On April 30, 1975, Defendant, through his attorney, filed a Motion to Terminate Probation, Adjudicating Petitioner Not Guilty and Set Him Free, which was denied by Judge Lasher on May 12, 1975. In denying said motion to terminate probation, the Judge stated that the Defendant had failed to abide by the rules set forth by the Parole and Probate Commission. No further evidence was presented respecting this motion and/or its disposition.

   
   

7. Based on the foregoing Findings of Fact, I hereby make the following: CONCLUSIONS OF LAW

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

   
   

9. The burden of proving that a licensed real estate salesman has violated the Real Estate Licensing Law lies with the Florida Real Estate Commission or its representative. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Florida 1973).

10. Insufficient evidence was offered at the hearing to establish that the Defendant based on the allegations contained in Counts 1 and II of the Administrative Complaint filed herein, has engaged in conduct violative of Florida Statutes 475.25(1)(a) and (e). The conduct here alleged and claimed to be violative of the above cited statutes if proven, must rest on a showing that the Defendant has "been guilty of a crime. . ." From the evidence here presented, there was no such showing but rather there was only a showing that an order was entered withholding adjudication of guilt. In view thereof, and since there was no showing that the Defendant has "been guilty of a crime" as set forth in Chapter 475, Florida Statutes, insufficient evidence was offered to establish the allegations.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Administrative Complaint filed herein be dismissed in its entirety.

RECOMMENDED this 1st day of April, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Bruce I. Kamelhair, Esquire 2699 Lee Road

Winter Park, Florida 32789

William B. Seidel, Esquire Justice Building

524 South Andrews Avenue

Ft. Lauderdale, Florida 33301

Docket for Case No: 77-000014

Orders for Case No: 77-000014