STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-136

)

LEONARD FERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on April 15, 1983, in Miami, Florida. The transcript was filed on April 28, 1983, and the parties were allowed ten days thereafter to submit proposed findings of fact and conclusions of law. The Petitioner made its submission in a timely manner and these findings and conclusions have been adopted. Nothing was received by or on behalf of the Respondent.

APPEARANCES

For Petitioner: Tina Hipple, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: None

By Administrative Complaint issued on January 7, 1983, the Respondent was charged with fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes, and with having been found guilty of a crime involving moral turpitude, in violation of Section 475.25(1)(f), Florida Statutes. Specifically, the Complaint alleges that the Respondent gave worthless checks to a creditor in payment of a loan, and that the Respondent was found guilty in Dade County of two counts of conspiring to sell, deliver or possess cocaine with intent to sell or deliver.

In support of its Complaint, the Petitioner presented the testimony of three witnesses, namely, an officer of Southeast Bank in Miami, an investigator from the Department of Professional Regulation, and the complaining witness who made the loan to the Respondent. Nine exhibits were offered and received in evidence.

The Respondent had advised the Hearing Officer by letter dated March 1, 1983, that he would not attend the scheduled hearing. Thus, the hearing took place in accordance with the notice issued on February, 23, 1983.

FINDINGS OF FACT

1. The Respondent, Leonard Fernandez, is a licensed real estate salesman, holding license number 0145203.

   
   

2. In July and August of 1979, the Respondent was employed as a mortgage solicitor for Southeast Mortgage Company in Broward County, Florida. Alan Edwards was the Respondent's supervisor during this time period.

   
   

3. In July, 1979, the Respondent advised Alan Edwards that he was going to purchase property, and requested that Mr. Edwards loan him money for a short period of time. Mr. Edwards loaned the Respondent $4,000 under a verbal agreement that the Respondent would repay the loan within 60 days.

   
   

4. When the Respondent failed to repay this loan as agreed, Mr. Edwards had the Respondent sign a promissory note in the amount of $4,000.

   
   

5. In an attempt to repay a portion of this note, the Respondent gave Mr. Edwards a check in the amount of $1,800 on or about August 29, 1979. Mr. Edwards presented the check for payment, but it was returned unpaid because the Respondent had stopped payment on it. When Mr. Edwards contacted the Respondent about the check, the Respondent stated that he had expected some funds from a relative, and when he did not receive this money, he stopped payment on the check. The Respondent told Mr. Edwards that he would give him a cashier's check to replace the $1,800 check that had been returned unpaid, but the Respondent never provided the cashier's check.

   
   

6. Instead, the Respondent, in September, 1979, gave Mr. Edwards several postdated checks drawn on account number 002312352 at Southeast Bank of Broward County. The purpose of these checks was to repay, the $1,800, after which the Respondent was to pay the remaining debt due under the note.

   
   

7. In November, 1979, Mr. Edwards presented the first of the postdated checks, dated November 15, 1979, to Southeast Bank for payment, but was notified that the Respondent's account upon which all the postdated checks had been issued, was closed. When the bank failed to honor this first check, Mr. Edwards sent a notice of dishonored check to the Respondent by certified mail. The return receipt indicates that the Respondent received this notice.

   
   

8. In December, 1979, and in January and February of 1980, Mr. Edwards presented to Southeast Bank the postdated checks that Respondent had given him for these months. On each occasion the bank informed Mr. Edwards that the Respondent's account was closed. Mr. Edwards sent the Respondent notices of dishonor of these checks, which the Respondent received.

   
   

9. Mr. Edwards never received any payment of the debt owed by the Respondent.

   
   

10. On January 7, 1980, in Dade County Circuit Court, the Respondent pled nolo contendere to two counts of conspiracy to sell, deliver or possess with intent to sell or deliver, cocaine, and was found guilty, placed on one year probation, and ordered to pay $2,400 in restitution. On February 29, 1980, the court withheld adjudication on this charge.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes.

    
    

12. Section 475.25(1)(b), Florida Statutes, empowers the Florida Real Estate Commission to suspend or revoke a license or impose an administrative fine if it finds that a licensee has:

    
    

    Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state or any other state . . . .

    
    

    A licensee may be disciplined for the dishonest conduct of business affairs for his own account, as well as for such conduct in real estate transactions where his only interest is that of a broker. Sellars v. Florida Real Estate Commission, 360 So.2d 1052, 1054 (Fla. 1st DCA 1980).

    
    

13. The evidence establishes that the Respondent engaged in fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing and breach of trust in a business transaction with Alan Edwards. The Respondent not only failed to repay the $4,000 loan, but he made misrepresentations and false promises about the repayment schedule, and issued a series of bad checks to Mr. Edwards in apparent good faith. This conduct constitutes a violation of Subsection 475.25(1)(b), Florida Statutes.

    
    

14. Section 475.25(1)(f), Florida Statutes, also empowers the Florida Real Estate Commission to suspend or revoke a license or impose an administrative fine if it finds that a licensee has:

Been found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this state which

crime. . . involves moral turpitude or fraudulent or dishonest dealing.

5. The Supreme Court has defined moral turpitude:

Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (Citations omitted). It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the

question of intent as when unintentionally committed through error of

judgment when wrong was not contemplated. (Citations omitted).

State ex. rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933). The Respondent's crime is not one of mere possession, as was the case in Pearl v. Florida Board of Real Estate, 394 So. 189 (Fla. 3d DCA 1981), but instead is a crime of conspiracy to possess cocaine with intent to market it. Consequently, the criminal behavior in which the Respondent engaged is evidence of an inherent baseness or depravity in his dealings with members of society. This is a violation of Section 475.25(1)(f), Florida Statutes.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0145203 held by the Respondent, Leonard

Fernandez, be revoked.

DONE and RECOMMENDED this 9th day of June, 1983 in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1983.

COPIES FURNISHED:

Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802

Mr. Leonard Fernandez 10024 S.W. 2nd Terrace Miami, Florida 33174

William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802

Harold Huff, Executive Dir. Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 83-000136

Orders for Case No: 83-000136