STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION )

)

Petitioner, )

)

vs. ) CASE NO. 83-2585

)

HILLARD J. MEINSTEIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on January 5, 1984 in Orlando, Florida.

APPEARANCES

For petitioner: Gary Lee Printy, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Richard J. R. Parkinson, Esquire

602 East Central Avenue Orlando, Florida 32801

BACKGROUND

By administrative complaint filed on March 29, 1983, petitioner, Department of Professional Regulation, Florida Real Estate Commission, has charged that respondent, Hillard J. Meinstein, a licensed real estate salesman, had violated Subsection 475.25(1)(f), Florida Statutes, for which disciplinary action against his license should be taken. In brief, Petitioner charged that respondent had pled nolo contendere to a charge of conspiracy to traffic in cocaine on March 16, 1982, and that such conduct constituted a violation of a law of this State involving moral turpitude.

Respondent disputed the above allegation and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred by petitioner to the Division of Administrative Hearings on August 14, 1983 with a request that a Hearing Officer be assigned to conduct a hearing.

On September 28, 1983 the undersigned entered an order requiring the parties, or either of them, to show the existence of a material fact in dispute or have the matter referred back to petitioner to conduct an informal hearing. On October 5, 1983 respondent filed a response indicating he disputed the fact that he and the individual who pled guilty to the above charges were the same person.

By notice of hearing dated November 23, 1983 a final hearing was scheduled for December 6, 1983 in Orlando, Florida. Thereafter, petitioner filed a motion for continuance, and with respondent's agreement, the case was rescheduled to January 5, 1984 at the same location.

On November 30, 1983 petitioner filed a motion to amend administrative complaint wherein it allegedly sought to add a new count to the administrative complaint. It was subsequently learned at the outset of the hearing that the "amended administrative complaint" was actually the same one originally filed on March 29, 1983. Accordingly, the motion was denied.

At the final hearing petitioner presented the testimony of Gary W. Ganey, a detective with the Hillsborough County Sheriff's Department, and Ruth Clayton, supervisor of application processing for the Division of Real Estate, and offered petitioner's exhibits 1-3; all were received in evidence. At the conclusion of petitioner's case-in-chief respondent made an ore tenus motion to dismiss the complaint on the ground the Department had failed to prove the licensee and one Hillard J. Meinstein charged with certain crimes in Hillsborough County were one and the same. The motion was granted. The basis for that ruling is set out hereinafter.

Based upon all of the evidence the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Hillard J. Meinstein, is the holder of real estate salesman license number 0174789 issued by petitioner, Department of Professional Regulation, Florida Real Estate Commission. The license was issued on September 1, 1981 and remains current as of this date.

   
   

2. On or about March 16, 1982 the circuit court for Hillsborough County, Florida entered an order accepting a plea of nolo contendere from one Hillard J. Meinstein for the offense of conspiracy to traffic in cocaine. Adjudication of guilt was withheld and Meinstein was placed on probation for 15 years and required to pay a $10,000 fine to the Hillsborough Country Sheriff's Office within one year after date of sentence. A certified copy of the order has been received in evidence as petitioner's exhibit 3. It was not disclosed whether the respondent and the defendant in the above case were the same individuals.

   
   

3. On April 30, 1982 the supervisor for application certification of the then Board of Real Estate wrote the sheriff of Hillsborough County and requested him to search his records to determine if a Hillard Jeffrey Meinstein had been arrested by his agency for various charges including conspiracy to traffic in cocaine. The letter also indicated that Hillard Jeffrey Meinstein was an applicant for licensure as a real estate salesman. The response of the sheriff, if any, was not disclosed.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Respondent is charged with violating Subsection 475.25(1), Florida Statutes, by having "been found guilty, regardless of whether adjudication was

   withheld, of a crime against the laws of this State...which crime...involves moral turpitude." Respondent has specifically denied this allegation. In support of its position, the Department introduced a certified copy of an order of the circuit court for Hillsborough County, Florida reflecting that a Hillard

   J. Meinstein had entered a plea of nolo contendere to conspiracy to traffic in cocaine on March 16, 1982. Other than the similarity in names, there was no other evidence to link that conviction with Meinstein, the licensed real estate salesman.

   
   

6. At the conclusion of petitioner's case-in-chief respondent ore tenus moved to dismiss the complaint on the ground insufficient evidence had been adduced to demonstrate that respondent and the individual convicted of the crime were one and the same. The motion was granted. Although respondent was offered the opportunity to present evidence in opposition to the Department's case, he declined to do so. In its present posture, then, the only issue is whether the Department presented sufficient evidence to support the allegations in the complaint.

   
   

7. Because the Department seeks to discipline the licensed of Meinstein, the proceeding may be characterized as penal in nature. As such, "the term

   `substantial competent evidence' takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120." Bowling v. Department of Insurance, 394 So.2d 165, 171 (Fla. 1st DCA 1981).

   That is to say, the proof must be commensurate with the potential penalty. Henderson Signs v. Department of Transportation, 387 So.2d 769 (Fla. 1st DCA 1981)

   
   

8. As noted above, the only competent evidence to support the allegation was a certified copy of a felony conviction of one Hillard J. Meinstein in Hillsborough County, Florida in 1982. Were this a criminal proceeding, such would be insufficient to establish identity. Clinton v. State, 196 So 684 (Fla. 1940)(holding that the introduction of certified copies of a prior information and finding of guilt against an identically named person were by themselves "not enough to establish the prior conviction of the person then on trial"); Thompson

   v. State, 66 Fla. 197, 63 So 423 (1913)(holding that "the state must prove the identity of the accused and the persons named in the prior judgments by other evidence than the identity of their names"). Although an administrative proceeding is not criminal in nature, Guest v. Department of Professional Regulation, 429 So.2d 1225 (Fla. 1st DCA 1983), the Bowling decision nonetheless imposes stringent evidentiary requirements upon an agency where its proposed action may result in the loss of a valuable professional license.

   
   

9. When viewing the totality of the evidence herein in light of the standards enunciated in Bowling, it is concluded there is an absence of substantial competent evidence to support the disciplinary action against respondent. That is to say, the evidence herein is not as substantial as the consequences, and it is insufficient to establish that respondent and the Hillard J. Meinstein convicted of a felony in 1982 are one and the same. Under these circumstances, the complaint must fail.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be DISMISSED with prejudice. DONE and ENTERED this 31st day of January, 1984, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 31st day of January, 1984.

COPIES FURNISHED:

Gary Lee Printy, Esquire

P. O. Box 1900 Orlando, Florida 32802

Richard J. R. Parkinson, Esquire 602 East Central Avenue

Orlando, Florida 32801

Docket for Case No: 83-002585

Orders for Case No: 83-002585