STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) DOAH CASE NO. 86-4525

)

JAMES EDWARD STIVERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 9, 1987, at the Federal Prison Camp, Eglin Air Force Base, Florida, before M. M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

FOR PETITIONER: James H. Gillis, Esquire

Department of Professional Regulation

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

FOR RESPONDENT: Mr. James E. Stivers, pro se #31492-083 Post Office 600 Dorm 1, FPC Eglin

Eglin AFB, Florida 32542-7606 ISSUES AND INTRODUCTION

This is a case in which the Petitioner seeks to take disciplinary action against the Respondent, a licensed real estate salesman. The basis for the proposed disciplinary action is set forth in a two-count Administrative Complaint which charges that Respondent has violated paragraphs (f) and (n) of Section 475.25(1), Florida Statutes. The factual basis for the proposed disciplinary action is comprised of the Respondent's two felony convictions and his subsequent incarceration in federal prison.

Following the hearing a transcript of the proceedings at hearing was filed on February 19, 1987. The parties were allowed until March 11, 1987, within which to file their proposed recommended orders. The Petitioner filed a proposed recommended order containing proposed findings of fact on March 12, 1987. The substance of all of Petitioner's proposed facts is included in this recommended order. Additional findings have also been made. The Respondent filed a timely letter which does not contain proposed findings of fact, but does assert his suggestions as to the appropriate penalty.

FINDINGS OF FACT

Based on the exhibits received in evidence and on the testimony of the only witness called at the hearing, I make the following findings of fact.

1. Respondent is now and was at all times material hereto a licensed real estate salesman in the state of Florida having been issued license number 0447789 in accordance with Chapter 475, Florida Statutes.

   
   

2. The last license issued was as a salesman, c/o Commercial Investment Real Estate, Inc., 1804 Riverview Drive, Post Office Box 3847, Indialantic, Florida 32901.

   
   

3. On May 12, 1986, in the United States District Court, Western District of Virginia Roanoke, the Respondent was found guilty of one (1) count of conspiracy to distribute drugs and one (1) count of interstate travel to promote illegal activity in violation of federal law, whereupon the Respondent was sentenced to three (3) years confinement, a $5,000 fine, and three (3) years probation upon release from custody.

   
   

4. The Respondent timely notified the Florida Real Estate Commission of the felony convictions.

   
   

5. As a result of the foregoing convictions, the Respondent is presently confined to a federal prison.

   
   

6. Am appeal of the foregoing convictions is presently pending before a federal appellate court.

   
   

7. Respondent's wife, who has not been charged with any violations, is presently employed as a licensed real estate salesperson in Florida. Inasmuch as her last name is the same as Respondent's last name, Respondent is concerned that publication in the FREC newsletter of news regarding discipline imposed on Respondent would have a negative impact on his wife's business reputation.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case. Sec. 120.57, Fla. Stat.

   
   

9. Section 475.25(1)(f) and (n), Florida Statutes, reads as follows:

   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....

      
      

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

      
      

10. The crimes of which Respondent was convicted are clearly crimes involving moral turpitude. [See Pearl v. Fla. Bd. of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981), which contains numerous examples of what does and does not constitute moral turpitude. Compare Rudolph v. United States ex rel. Rock, 6F.2d 478 (D.C.Cir.), cert. denied, 269 U.S. 559, 46 S.Ct 46 (1925).] Accordingly, Respondent has violated Section 475.25(1)(f), Florida Statutes, as charged.

    
    

11. Inasmuch as Respondent has been confined and continues to be confined in a federal prison, he is clearly in violation of Section 475.25(1)(n), Florida Statutes, as charged.

RECOMMENDATION

Based on all of the foregoing, it is recommended that the Florida Real Estate Commission enter a final order in this case to the following effect:

1. Finding the Respondent guilty of viola- tions of Section 475.25(1)(f) and (n), Florida Statutes, as charged;

   
   

2. Suspending the Respondent's license for a period of five (5) years;

   
   

3. Providing that in the event the appeal of Respondent's criminal convictions is successful, the suspension of Respondent's license will be rescinded; and

   
   

4. Providing that notice of disciplinary action against Respondent will not be published in the Commission's newsletter until the appeal of Respondent's criminal convictions is final, and then only if that appeal is unsuccessful.

DONE AND ENTERED this 18th day of March, 1987, at Tallahassee, Florida.

M. M. PARRISH Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1987.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

Mr. James E. Stivers 31492-083

Post Office 600 Dorm 1

F.P.C. Eglin

Eglin AFB, Florida 32542

Harold Huff, Executive Director Division of Real Estate

Florida Real Estate Commission

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004525

Orders for Case No: 86-004525