STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-175

)

GEORGE N. OSBURN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on July 28, 1982, in Sarasota, Florida. The following appearances were entered.

APPEARANCES

For Petitioner: Mark P. Kelly, Esquire

FREEMAN & LOPEZ, P.A.

4600 West Cypress, Suite 410

Tampa, Florida 33607

For Respondent: Bernt Meyer, Esquire

LEE & SURFUS

2072 Ringling Boulevard

Sarasota, Florida 33579

This proceeding was initiated on an Administrative Complaint, filed December 9, 1981, by the above-captioned Petitioner. The Petitioner seeks to revoke, suspend or take other disciplinary action against the Respondent as a real estate licensee on the basis that he allegedly entered a plea of nolo contendere to the offense of burglary on or about May 7, 1981, and was placed on probation by the Circuit Court in and for Sarasota County, with adjudication withheld. The said burglary proceedings are alleged to have arisen out of the Respondent's attempt to enter the home of his estranged spouse and his alleged attempt to remove certain personal belongings from that home while it was occupied by his estranged or former spouse. The Petitioner has thus charged that the Respondent is guilty of a crime against the laws of the State of Florida, and therefore a violation of Subsection 475.25(1)(f) Florida Statutes (1979).

The issue is thus whether the Respondent committed the alleged acts and, if so, whether such conduct constitutes a violation of the above statute.

FINDINGS OF FACT

1. The Respondent, George N. Osburn, is a licensed real estate salesman having been issued license number 0065910 and he was so licensed on or about February 26, 1979. The Petitioner, the Department of Professional Regulation/Board of Real Estate (now Florida Real Estate Commission), is an agency of the State of Florida, having jurisdiction over licensing and regulatory matters concerning real estate salesmen and brokers.

   
   

2. On February 26, 1979, the Respondent went to the home formerly occupied by his former wife and himself prior to their divorce, which was final before the above date. The Respondent went to her house to obtain some records which he needed to execute his Federal Tax Return. The Respondent came on the porch of the house and walked into the house where his former wife and a Mr. Lacey were seated on the couch. The Respondent's former wife told the deputy who investigated the incident that night, and who testified at the hearing, that she had invited the Respondent in. Mr. Lacey testified at the hearing that the Respondent simply walked in uninvited. The deputy, in the deposition taken prior to the hearing, acknowledged that Mrs. Lacey, the Respondent's former wife, told him on the evening of the investigation of the incident that the Respondent came in at her invitation. Mrs. Lacey and Charles Lacey maintained at the hearing that the Respondent came in their premises uninvited. Thus, the evidence is conflicting on whether the Respondent entered the premises of his former wife without permission, but there is no preponderant evidence which establishes that he entered without invitation. There is no question, however, that he did not force entry. The former Mrs. Osburn discovered no items of property missing from her premises after the Respondent left.

   
   

3. The Respondent was ultimately charged with burglary and upon his attorney's advice at the time, entered a "best interest" plea of nolo contendre to the charge in return for which he was promised and received a one-year probation with adjudication of guilt withheld. The acts the Respondent was charges with committing as a basis for the burglary charge occurred February 26, 1979. The Order of the Circuit Court placing the Respondent on one-year probation, with adjudication of guilt withheld, was entered on approximately May 7, 1981. The Respondent was not shown to have any previous violations assessed against his license.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding pursuant to Section 120.57(1) , Florida Statutes.

   
   

5. Section 475.25(1)(f), Florida Statutes (1979) provides in pertinent part as follows:

   
   

   1. The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding 10 years, may revoke a license, may impose

      an administrative fine . . . if it finds that the licensee or applicant has:

      (f) Been found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this state or any other state or of the United States,

      which crime directly relates to the ac- tivities of a licensed broker or sales- man or involves moral turpitude or fraud- ulent or dishonest dealing. . .

      
      

      The key portion of this provision concerns the question of whether the licensee has "been found guilty, regardless of whether adjudication was withheld That clause was a result of a change effected July 1, 1979. The former provision, Section 475.25(1)(e), Florida Statutes (1977), required for discipline to be imposed, that a Respondent "had 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 (emphasis supplied). That earlier provision was the law in effect at the time the acts, which are the subject of the alleged offense, occurred, to wit, on February 26, 1979.

      
      

6. It is not possible to use a plea of nolo contendre or even a plea of guilty, had that been the case, to such criminal charges to impose the administrative sanctions in a case such as this since the crime to which the Respondent plead nolo contendere occurred in February, 1979, and Circuit Judge withheld adjudication of guilt on the charge. In situations involving the withholding of adjudication of guilt, before July 1, 1979, a Respondent's plea to criminal charges cannot be used to suspend or revoke his real estate license and find him guilty of the related charge in the Administrative Complaint since he has never actually "been guilty of," that is adjudicated guilty or convicted of, a crime against the laws of the state or of moral turpitude.

   
   

7. The cases of Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 4th DCA 1977), and Rifkin v. Florida Real Estate Commission, 345 So.2d 349 (Fla. 4th DCA 1977), are controlling in a case such as this, which arises as did the cases involved in those two decisions, under the earlier statutory provision quoted above. The entire episode of the alleged criminal transaction occurred in this case before July 1, 1979, the effective date of the amendment to Section 475.25(1)(e), Florida Statutes, whereby the Legislature elected to make it a ground for suspension, revocation or reprimand upon a bare finding of guilt of a crime regardless of whether adjudication was withheld by the court involved.

   The statute as substantially amended, cannot, of course, be applied in this case, as the Petitioner seeks to do with its Administrative Complaint, since it would be applied in a constitutionally prohibited ex post facto fashion if it were applied to acts occurring in February, 1979, well before its effective date. Thus, the 1977 provision referred to above, which requires an actual finding of guilt before the above-mentioned disciplinary measures may be imposed, is applicable here and was not charged in the Administrative Complaint.

   
   

8. It is patently obvious, therefore, that the charges in the Administrative Complaint are without proper legal basis and should be dismissed.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence in the record and pleadings and arguments of counsel, it is, therefore

RECOMMENDED:

That the Respondent, George N. Osburn, be found not guilty and that the Administrative Complaint filed in this cause be DISMISSED and case number 82-175 be hereby CLOSED.

DONE and ENTERED this 20th day of August, 1982, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 20th day of August, 1982.

COPIES FURNISHED:

Mark P. Kelly, Esquire FREEMAN & LOPEZ, P.A.

4600 West Cypress, Suite 410

Tampa, Florida 33607

Bernt Meyer, Esquire 2072 Ringling Boulevard

Sarasota, Florida 33579

Frederick H. Wilsen, Esquire Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

C. B. "Joe" Stafford Executive Director

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000175

Orders for Case No: 82-000175