STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-0090

)

STARLA K. ROSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William J. Kendrick held a public hearing in the above styled case on April 30, 1986, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Susan Bartmann, Esquire

DPR-Division of Real Estate Post Office Box 1900 Orlando Florida 32802

For Respondent: Ray Sandstrom Esquire

429 South Andrews Avenue

Fort Lauderdale, Florida 33301 PRELIMINARY STATEMENT

By administrative complaint filed January 13, 1986, Petitioner, Department of Professional Regulation, Division of Real Estate (Department), seeks to discipline the Respondent, Starla K. Rose, a licensed real estate broker in the State of Florida. The complaint charges that Respondent was convicted of grand thefts insurance fraud by false or fraudulent claim and of issuing a false report of the commission of a crime; as a consequence of which Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, and breach of trust in a business transaction (Count I) and having been found guilty of a crime involving moral turpitude or fraudulent or dishonest dealing (Count II).

At final hearing the Department called James J. Smith as a witness, and its Exhibits 1 and 3-5 were received into evidence. Respondent testified on her own behalf, and Respondent's Exhibit 1 was received into evidence.

The transcript of hearing was filed on May 16, 1986. The parties were granted leave through May 26, 1986, within which to file proposed findings of fact and conclusions of law. The Department has submitted proposed findings, and a ruling has been made on its proposed findings in the appendix to this Recommended order.

FINDINGS OF FACT

1. Respondent Starla K. Rose, was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0046404.

   
   

2. On February 25, 1985, an Information was filed in the Circuit Court of the Seventh Judicial Circuit, Broward County, Florida, charging Respondent with one count of grand theft, Sections 512.014(1)a and b and 512.014(2)b, Florida Statutes, two counts of insurance fraud by false or fraudulent claims Section 517.234(1)(a)1, Florida Statutes; and, one count of false report of the commission of a crime, Section 817.49, Florida Statutes. Respondent pled not guilty to the Information.

   
   

3. On June 6, 1985, a verdict was rendered which found Respondent guilty of one count of grand theft, one count of insurance fraud by false or fraudulent claims and one count of false report of the commission of a crime. The court adjudged Respondent guilty of issuing a false report of the commission of a crime, withheld adjudication of guilt on the remaining counts, placed Respondent on probation for 3 years, and ordered her to pay costs.

   
   

4. Respondent filed a timely motion for new trial following rendition of the verdict. At the time of final hearing in this case, no disposition had been made of Respondent's motion for new trial.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to; and the subject matter off these proceedings.

   
   

6. The allegations in this case are that Respondent violated Section 475.25(1)(b) and (f); Florida statutes. That section provides in pertinent part:

   
   

   1. The commission . . . 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:

      * * *

      (b) Has been guilty of frauds misrepresentation, concealment false promises, false

      pretenses; dishonest dealing by trick, schemer or devices culpable negligence, or breach of trust in any business transaction in this state.

      * * *

      (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 guilt.

      
      

7. The burden is upon the Department to establish its case by competent substantial evidence. See: Robinson v. Florida Board of Dentistry, 447 So.2d 930 (Fla. 3d DCA 1984), Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). In the instant case the Department has failed to establish a violation of Section 475.25 (1)(b), Florida Statutes, since it failed to establish that Respondent committed any act(s) which could be characterized as a fraud, misrepresentation, or other prohibited activity within the purview of Section 475.25(1)(b). The mere fact that Respondent was convicted of a crime involving moral turpitude or fraudulent or dishonest dealing, is not competent evidence to establish a violation of Section 475.25(1)(b).

   
   

8. The Department has, however, established a violation of Section 475.25(1)(f), Florida Statutes. The crimes of grand theft and insurance fraud, for which Respondent was convicted are third degree felonies. Sections 812.014 and 817.234, Florida Statutes. The crime of issuing a false report of the commission of a crime is a first degree misdemeanor. Section 817.49, Florida Statutes. Each of these offenses involve moral turpitude or fraudulent or dishonest dealing. Accordingly, Respondent is guilty of having violated Section 475.25(1)(f), Florida Statutes.

Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department enter a Final Order:

1. Finding Respondent not guilty of a violation of Section 475.25(1)(b), Florida Statutes.

   
   

2. Finding Respondent guilty of a violation of Section 475.25(1)(f), Florida Statutes; and

   
   

3. Revoking Respondent's license as a real estate broker, subject to reinstatement should her conviction be over-turned.

DONE and ORDERED this 5th day of June 1986, in Tallahassee Florida.

WILLIAM J. KENDRICK

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 5th day of June, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0090

The Department's Proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

   
   

2. Addressed in paragraph 2.

   
   

3. Addressed in paragraph 3.

COPIES FURNISHED:

Susan Hartmann, Esquire Post Office Box 1900 Orlando, Florida 32802

Ray Sandstrom, Esquire

429 S. Andrews Ave.

Ft. Lauderdale, Florida 33301

Harold Huff, Director

Florida Real Estate Commission

400 W. Robinson St. Orlando Florida 32801

Docket for Case No: 86-000090

Orders for Case No: 86-000090