STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-2765

)

WILLIAM HOGAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished the parties on August 15, 1986, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Miami, Florida on September 18, 1986. The issue for consideration herein was whether Respondent's license as a real estate salesman in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.

APPEARANCES

Petitioner: Arthur R. Shell, Esquire

Department of Professional Regulation Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

Respondent: Was not present or represented

by counsel.

BACKGROUND INFORMATION

On June 5, 1986, the Department of Professional Regulation, by Fred Roche, Secretary, filed an Administrative Complaint in this case alleging that Respondent was in violation of Section 475.25, Florida Statutes, because of his conviction of a crime involving fraudulent or dishonest dealing and his subsequent confinement in Federal prison. Respondent subsequently entered an Election of Rights form on which he disputed the allegations of fact laid against him and requested a formal hearing. The file was, on July 25, 1986, forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer.

Notwithstanding the fact that Respondent requested a formal hearing on the Election of Rights form he submitted on July 15, 1986, he failed to respond to either the Notice of Assignment or the Notice of Hearing, both of which were furnished to him by U.S. mail at the address supplied by him on this election of rights form. Neither notice was returned undelivered and regularity in delivery is presumed. In the Notice of Assignment, Respondent was instructed to advise the Hearing Officer of this request for date and place of hearing. When he

failed to provide this information the case was set for hearing and in the Notice of Hearing he was advised not only of the date and place of hearing but also of his right to present oral and written argument and to be represented at the hearing by counsel.

Since Respondent was aware of all particulars of the hearing logistics and failed to enter request a continuance due to his incarceration or provide representation to speak for him, the hearing was held without him.

No proposed Findings of Fact were submitted by either party.

FINDINGS OF FACT

1. At all times relevant to the issues herein, Respondent was licensed by the Florida Division of Real Estate under license number 0202980.

   
   

2. On January 16, 1986, Respondent, represented by counsel, entered a plea of guilty before the Honorable Alcee L. Hastings, Judge of the United States District Court for the Southern District of Florida, to a charge of being involved in a scheme to defraud to obtain money by false pretenses by U.S. Mail, in violation of 18 U.S.C. 1341 & 1342, and conspiracy to defraud to obtain money by false pretenses in violation of 18 U.S.C. 371.

   
   

3. Respondent was found guilty as per his plea and was sentenced, inter alia, to imprisonment in a United States Penitentiary for 4 years on the first count and for 1 year on the second, the terms to run consecutively. Respondent surrendered to authorities at the Federal Prison Camp, Leavenworth, Kansas, on May 5, 1986, and is presently incarcerated there.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Petitioner charges Respondent with a violation of Sections 475.25(1)(f) and (n), Florida Statutes, by being convicted of a crime involving fraudulent or dishonest dealing, (Subsection (f)), and by being confined in a Federal prison (Subsection (n)).

   
   

6. Paragraph 475.25, Florida Statutes, 1985 permits the commission to discipline a licenseholder's license if it finds that the licensee has:

   
   

   (f) Has been guilty of fraud, misrepresentation, . . ., dishonest dealing by trick, scheme, or device, . . .

   and

   (n) Is confined in any state or federal prison. . .

   
   

7. The evidence presented by Petitioner, documentary though it all may be, clearly established that Respondent was convicted of crimes involving fraud and dishonest dealing and is presently confined because of those convictions in a federal prison. This evidence satisfies the test of both paragraphs and authorizes the commission to take action against Respondent's license.

8. Just what that action should be is the question next for resolution. The commission has not indicated what action it proposes. It is abundantly clear, however, that the Respondent herein is not the type of individual who should be involved in the practice of the real estate profession with the strict standards of honesty that that profession demands. His conviction for fraud and dishonest dealings make that conclusion obvious. Since he is presently incarcerated, a fine is not practical.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law is is, therefore:

RECOMMENDED that the Respondent's license as a real estate salesman in Florida be revoked.

RECOMMENDED this 17th day of October, 1986 at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 17th day of October, 1986.

COPIES FURNISHED:

Arthur R. Shell, Jr., Esquire Senior Attorney

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

William J. Hogan 25392-004 B-2

Post Office Box 1000 L.V.C. Leavenworth, Kansas 66048

Fred Roche Secretary

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-002765

Orders for Case No: 86-002765