STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION (Board of Real Estate), )

)

Petitioner, )

)

vs. ) CASE NO. 81-1397

) P.D. No. 0005572

ALFONSO BACH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in Conference Room B, Palm Beach County Courthouse, 300 North Dixie Highway, West Palm Beach, Florida, at 11:00 a.m., July 21, 1981. This Recommended Order is being entered after receipt of the transcript of the proceeding. The transcript was received on September 4, 1981.

APPEARANCES

For Petitioner: Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

For Respondent: Jack Scarola, Esquire

Post Office Drawer 3626

West Palm Beach, Florida 33402 ISSUES

The issues here presented concern disciplinary action by the State of Florida, Department of Professional Regulation, against Alfonso Bach, who allegedly holds a non-active real estate salesman's license.

In particular, Count I to that Administrative Complaint alleges that Alfonso Bach was charged by a Grand Jury and by the State Attorney of the Eleventh Judicial Circuit of Florida, in and for the County of Dade, with the offense of conspiring to sell, deliver, or possess with intent to sell or deliver, cocaine, in violation of Section 777.04, Florida Statutes, three counts, and was also charged with having violated the Florida Racketeer Influence and Corrupt Organization Act, in violation of Section 943.462, Florida Statutes. It is further urged that on January 7, 1981, the Respondent pled guilty to Counts 7 and 8 of the charging information and was found guilty by the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, of having conspired to sell, deliver or possess with intent to sell, deliver or possess cocaine. In view of these alleged facts, Alfonso Bach is believed by the Petitioner to have been found guilty of a crime against the laws of the State of Florida, and this crime is purportedly a crime involving moral

turpitude or fraudulent or dishonest dealing within the meaning of Subsection 475.25(l)(f), Florida Statutes.

Count II to the Administrative Complaint reasserts the matters pled in Count I and further alleges that as a result of the conviction set out in Count I, the Respondent was sentenced to serve a prison term of three (3) years, and that the Respondent now is confined in State prison, a violation of Subsection 475.25(l)(m), Florida Statutes.

FINDINGS OF FACT

CASE HISTORY

1. This case arises based upon an Administrative Complaint brought by the Petitioner, State of Florida, Department of Professional Regulation against one Alfonso Bach setting forth allegations as established in the Issues portion of this Recommended Order. The date of the Administrative Complaint is May 6, 1981. Following a request for formal hearing the matter was forwarded to the Division of Administrative Hearings on May 13, 1981. After assignment, a formal hearing was held on July 21, 1981, in keeping with Subsection 120.57(l), Florida Statutes.

   
   

2. In the course of the hearing no testimony was presented by either party; the Petitioner offered a series of exhibits, 1-3. These exhibits are discussed in the Conclusions of Law portion of this Recommended Order.

   
   

   MATERIAL FACTS

   
   

3. After reviewing the Petitioner's proffered Exhibits 1-3 and upon consideration of argument in support of and in opposition to the admission of these exhibits, the exhibits have not been admitted. Consequently, there being no other basis for determining facts, no material facts are found.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction to consider this dispute in keeping with the provisions of Chapter 120, Florida Statutes.

   
   

5. By the Administrative Complaint in this action the Petitioner has accused one Alfonso Bach of crimes which purportedly involve moral turpitude or fraudulent or dishonest dealing within the meaning of Subsection 475.25(l)(f), Florida Statutes. There is a second count which accuses one Alfonso Bach of having been sentenced to serve a prison term of three years and now being confined in the Florida State Prison system in violation of Subsection 475.25(l)(m), Florida Statutes.

   
   

6. To sustain its burden of proof the Petitioner must show by substantial competent evidence that the Alfonso Bach referred to in the Administrative Complaint is the holder of a real estate license issued by the State of Florida, and it must, in turn, demonstrate that the Respondent has been found guilty of the offenses alluded to in the Issues statement of this Recommended Order; that those offenses involve moral turpitude or fraudulent or dishonest dealing, and that as a consequence of the finding of guilt, that the Respondent was sentenced to a prison term and is now serving a prison term in a Florida State Correctional facility.

7. In an effort to prove the identity of the person accused by the Administrative Complaint, i.e., Alfonso Bach, and the fact of the licensure of that Alfonso Bach by the Petitioner, Petitioner's Composite Exhibit #3 was offered. That exhibit is comprised of what purports to be the correspondent from one Victoria R. Brihn, allegedly the Executive Vice President of an entity known as Palm Beach Board of Realtors, Inc., which was addressed to "Board of Real Estate, Investigative Department, P. O. Box 1900, Orlando, Florida 32801." That correspondent references an individual Alfons S. Bach, II and alludes to "BRE License #137575" and "SS# 264 98 7488." There is attached to this correspondent certain reputed newspaper reports of the Palm Beach Daily referring to one Alfons Bach, II and drug investigations about him. An examination of the Petitioner's Composite Exhibit #3 when contrasted with those acknowledged exceptions to the hearsay rule as found in Chapter 90, Florida Statutes, leads to the conclusion that the type item such as composite exhibit is not found in one of the announced categories of exceptions to the hearsay rule. Therefore, the document standing alone is incompetent. Furthermore, the Petitioner's Composite Exhibit #3 does not serve the corroborative function of supplementing or explaining other evidence which is competent, there being no other evidence of record on the question of identity and proof of licensure offered in the course of the hearing. (See Section 120.58, Florida Statutes.) That is to say that the Petitioner's Composite Exhibit #3 does not serve to supplement or explain other competent evidence. Consequently, this evidence standing alone cannot serve to support a finding of fact unless it were found to be admissible evidence over objection in a civil action, which as can be seen in this matter is not available since it was not demonstrated to be an exception to the hearsay rule as set forth in Chapter 90, Florida Statutes.

   
   

8. The Petitioner finds no solace in the attempt to assert that the Petitioner's Exhibits #1 and #2 related to charges, judgment, sentence, and commitment of one Alfonso Bach serves to establish the identity and the fact of licensure of the Respondent referred to in the Administrative Complaint, for reasons that the Petitioner's proffered Exhibits #1 and #2 make no reference to an Alfonso Bach who holds a real estate license issued by the State of Florida. In view of this determination, as announced before, the Petitioner's Composite Exhibit #3 may not serve in the way of corroboration to supplement or explain Petitioner's Exhibits #1 and #2 as the latter exhibits might deal with the question of proof of identity and the fact of licensure by the State of Florida in the field of real estate sales. The Petitioner's Exhibits #1 and #2, upon examination of those documents, are irrelevant to establish the fact of identity of Alfonso Bach and the fact of the licensure by the Florida Real Estate Commission of one Alfonso Bach, there being no reference in the Petitioner's Exhibits #1 and #2 to the subject of licensure on the part of the State of Florida in the area of real estate sales. Finally, Petitioner's Composite Exhibits #1 and #2 may not corroborate or serve to supplement or explain Petitioner's Composite #3 on the question of proof of identity of the license holder Alfonso Bach and licensure as a real estate salesman in the State of Florida, the Petitioner's Composite Exhibit #3 having been found to be hearsay and incompetent evidence, standing along.

   
   

9. For reasons discussed above, the Petitioner's Exhibits #1 and #2 are irrelevant to the inquiry in terms of their alleged proof of the charge of drug offense violations, judgment and sentence for certain counts within those alleged violations, and imprisonment and current service of a prison term by the person referred to in those documents as Alfonso Bach, the Petitioner having failed to establish the predicate for the introduction of this substantive evidence when it was unsuccessful in proving the identity of the real estate license holder as the same Alfonso Bach and the fact of the licensure of that

   Alfonso Bach. Although the Petitioner's Exhibits #1 and #2 are competent to prove the violations, sentence and service of prison time by "Alfonso Bach" named in those exhibits, the Petitioner having failed to prove that this "Alfonso Bach" is the same person as the Alfonso Bach, Respondent, who holds a real estate license, Petitioner's Exhibits #1 and #2 are irrelevant.

   
   

   SUMMARY

   
   

10. The Petitioner's Exhibits #1 through #3 are denied admission and, there being no proof of violation, the Petitioner has failed to show that the Respondent, Alfonso Bach, is guilty of a crime involving moral turpitude or fraudulent or dishonest dealing within the meaning of Subsection 475.25(l)(f), Florida Statutes, and has failed to prove that the Respondent, Alfonso Bach, is serving a prison term in violation of Subsection 475.25(l)(m), Florida Statutes, and is unable to take punitive action against the license of Alfonso Bach pursuant to Chapter 475, Florida Statutes.

RECOMMENDATION

It is therefore RECOMMENDED that the prosecution by Administrative Complaint referred to herein, State of Florida, Department of Professional Regulation, PD 0005572, be dismissed. 1/

DONE AND ENTERED this 28th day of September 1981 in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of September 1981.

ENDNOTE

1/ The parties have submitted argument and proposed findings, conclusions of law, and a recommended disposition of this case. These matters have been reviewed prior to the entry of the Recommended Order and to the extent that they are consistent with this Recommended Order they have been utilized. To the extent that the matters are inconsistent with the Recommended Order they are hereby rejected.

COPIES FURNISHED:

Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

Jack Scarola, Esquire Post Office Drawer 3626

West Palm Beach, Florida 33402

Mr. C. B. Stafford Executive Director Board of Real Estate

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 81-001397

Orders for Case No: 81-001397