STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 85-1660

)

MARVIN L. LESSNE, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held in Miami, Florida on April 10, 1986, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

APPEARANCES

For Petitioner: Sue Hartmann, Esquire

Division of Real Estate P. 0. Box 1900

400 West Robinson Street Orlando, Florida 32802

For Respondent: (no appearance)

Background and Procedural Matters

Petitioner's Administrative Complaint dated March 27, 1985, alleges violations of various provisions of Section 475.25 Florida Statutes by Respondent's plea of guilty to seven counts of grand theft, by Respondent's failure to notify the Florida Real Estate Commission of that plea, and by Respondent's incarceration in a state prison.

Respondent made a timely request for a formal hearing with a notation on the Election of Rights Form, "Relating to Count

1. " Nothing else in the record indicates whether Respondent was waiving formal hearing for the remaining counts.

   
   

   The final hearing was continued once at the request of Respondent, to give him an opportunity to prepare a defense after his anticipated release from incarceration in February 1986. However, he failed to appear at the final hearing and there have been no further contacts of record.

   
   

   At the hearing, Petitioner submitted twelve exhibits and presented no witnesses.

   
   

   FINDINGS OF FACT

   
   

   1. On March 10, 1983 Marvin L. Lessne was issued a non- active broker license #0051792. His non-active license expired on September 30, 1984 and was not renewed. (Petitioner's Exhibit 1)

      
      

   2. On September 13, 1984, Marvin Lessne pled guilty to seven cases of Grand theft. (Petitioner's Exhibits 9 and 10). On January 7, 1985, he was sentenced by Judge Patricia W. Cocalis, Circuit Judge for the Seventeenth Judicial Circuit in and for Broward County. His total sentence was for two and a half years in prison, ten years of probation and full restitution to his victims. The total amount of money taken by Mr. Lessne from his victims was approximately $215,000.00. (Petitioner's Exhibit 10)

      
      

   3. By affidavit, Harold R. Huff, Director of the Division of Real Estate certified that a search of Division records failed to reflect that Marvin Lessne informed the Division of his conviction and subsequent incarceration.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1) Florida Statutes and Section 455.225(4) Florida Statutes.

      
      

   5. Respondent has been charged with violations of Section 475.25(1)(f),(n) and (p) Florida Statutes, which provide in pertinent part:

475.25 Discipline.

(1) The commission may deny an application for licensure, registration, or permit, or renewal thereof may suspend a license or permit for a period not exceeding 10 years; may revoke a license or permit may impose an administrative fine not to exceed $1,000 for each count or separate offense and may issue a reprimand or any or all of the foregoing, if it finds that the licensee, permittee, or applicant:

* * *

(f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be admissible as prima facie evidence of such guilt.

* * *

(n) Is confined in any state or federal prison or mental institution or, through mental disease or deterioration, can no longer safely be en trusted to deal with the public or in a confidential capacity.

* * *

(p) Has failed to inform the commission in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of any felony.

1. The certified record of judgements against Marvin Lessne provide prima facie evidence of his guilt. Section 475.25(f) Florida Statutes. A plea of guilty to grand theft is

   a violation of Section 475.25(f) Florida Statutes. Bruner v. Board of Real Estate, 399 So. 2nd 4 (Fla App 5th DCA 1981).

   
   

2. Petitioner provided prima facie evidence that Marvin Lessne failed to notify the commission in writing within thirty days after his guilty plea. However, by the Petitioner's own affidavit, Respondent's non-active license expired on September 30, 1984, seventeen days after his guilty plea. The license, therefore, expired prior to the deadline for his report to the commission by the end of the thirty day period, Marvin Lessne was not a "licensee, permittee or applicant according to the evidence submitted by Petitioner.

   
   

3. Marvin Lessne was incarcerated according to his own pleadings, however, no effort was made to prove that he currently is incarcerated as provided in Section 475.25(n) Florida Statutes.

   
   

4. Petitioner's affidavit states that Respondent's "non- active" broker license expired on September 30, 1984. Once a license expires, it becomes null and void without any further action by the board or department. Section 475.183(1), Florida Statutes.

   
   

5. Marvin Lessne was a "licensee" albeit "non-active", at the time that he pled guilty to grand theft and would therefore be subject to the disciplinary authority of the commission. See Ashe v. Department of Professional Regulation, Board of Accountancy, 467 So. 2nd 814 (Fla App 5th DCA 1985)

   
   

6. Marvin Lessne's license is gone and Petitioner has neither suggested any form of discipline nor has Petitioner argued that an administrative fine or reprimand would be appropriate.

RECOMMENDATION

It is therefore, RECOMMENDED

That a Final Order be entered finding that Respondent violated Section 475.25(f) Florida Statutes. (Count I, Administrative Complaint) and dismissing counts II and III of the Administrative Complaint.

DONE AND RECOMMENDED this 28th day of July, 1986, at Tallahassee, Florida.

MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1986

COPIES FURNISHED:

Sue Hartmann

Division of Real Estate

P.O. Box 1900

400 West Robinson Street Orlando, Florida 32802

Marvin L. Lessne

4341 Northwest 16th Street Apartment 101

Lauderhill, Florida 33313

Docket for Case No: 85-001660

Orders for Case No: 85-001660