STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-0399

)

RICHARD L. PURKEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on April 27, 1988, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Richard L. Purkey, pro se

1508 Willard Street

Leheigh, Florida 33936

Post Office Box 3605

North Fort Myers, Florida 33918

The Department of Professional Regulation, Petitioner, filed an Administrative Complaint before the Florida Real Estate Commission alleging that the Respondent, Richard L. Purkey, was convicted of crimes involving controlled substances and theft and failed to notify the Florida Real Estate Commission of his felony convictions on December 10, 1986, and July 15, 1987.

Richard L. Purkey, the Respondent, disputed the allegations of fact contained in the Administrative Complaint and requested a formal administrative hearing.

During the hearing, the Petitioner submitted five exhibits which were stipulated to by the Respondent and admitted into evidence. The Respondent submitted one exhibit and testified in his own behalf. Although the Respondent was given additional time in which to file corroborative exhibits, he failed to do so by July 15, 1988. No additional evidence was presented by the parties.

A transcript of the proceedings was not ordered. The Respondent did not submit proposed findings of fact and conclusions of law. The Petitioner filed a proposed recommended order on July 7, 1988. Rulings on the proposed findings of fact are contained in the attached appendix.

FINDINGS OF FACT

1. At all times material to these proceedings, the Respondent was the holder of Florida real estate license number 0201688. The last license issued was as a nonactive broker with a home address of 2281 Euclid Avenues Fort Myers, Florida.

   
   

2. On December 10, 1986, the Respondent entered a plea of guilty to the offense of obtaining a controlled substance by fraud in Case No. 861034CF in the Circuit Court of Lee County, Florida. The crime did not involve any business dealings in which the Respondent was acting as a real estate salesman or broker.

   
   

3. The Respondent did not notify the Petitioner in writing of his plea within the thirty-day period because he believed he had entered a plea to a misdemeanor, which was exempt from the reporting requirement of 475.25(1)(p), Florida Statutes. A letter from his attorney before the plea was entered reflected an intent to enter a plea to a misdemeanor, subject to acceptance by the court.

   
   

4. On July 15, 1987, in Case No. 86-1790CF in the Circuit Court of Lee County, Florida, the Respondent entered nolo contendere pleas to uttering a forged instrument in Counts I, III, V, VII, IX, XI, and XIII and grand theft in Counts II, VI, VIII, X, XII, and XIV. These charges involved personal business affairs and did not involve misconduct by the Respondent as a real estate salesman or broker.

   
   

5. The Respondent notified the Florida Real Estate Commission of his adjudication of guilt for the grand thefts and the utterings of forged instruments in Case No. 86-1790CF by letter dated August 7, 1987.

   
   

6. There are no specific findings of mitigating or aggravating circumstances as none were presented during the hearing of this case.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

   
   

8. Section 475.25, Florida Statutes, empowers the Florida Real Estate Commission to revoke, suspend, or otherwise discipline the real estate license of the Respondent if he is found guilty of any acts enumerated in Section 475.25, Florida Statutes.

   
   

9. Section 475.25(1), Florida Statutes, as it applies to the Respondent, reads as follows, 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, it if finds that the licensee . . .;

      . . .

      (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 dealings. 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.

      . . .

      (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.

      
      

10. In Counts I and III of the Administrative Complaint, the Respondent is charged with two separate violations of Section 475.25(1)(f), Florida Statutes. Count I addresses a guilty plea to a crime entered on December 10, 1986. Count III addresses the entry of thirteen nolo contendere pleas to various crimes which were considered as one ongoing criminal transaction by the court when the pleas were entered on July 15, 1987. A plea of guilty or nolo contendere is considered a conviction for purposes of this statute, and the commission is permitted to use certified or authenticated records of the convictions as prima facie evidence of such guilt for the purposes of these proceedings. The documents reflecting the Respondent's pleas in this case were self- authenticating, pursuant to Section 90.902(4), Florida Statutes, and were properly admitted into evidence.

    
    

11. The Respondent entered a guilty plea to the criminal offense of obtaining a controlled substance by fraud on December 10, 1986. By definition, the crime involves fraudulent dealings. As a result, the Respondent should be found guilty of violating Section 475.25(1)(f), Florida Statutes, based upon a crime which involves fraudulent dealings, as set forth in Count I of the Administrative Complaint.

    
    

12. The Respondent entered nolo contendere pleas to seven counts of utterings of forged instruments and six counts of grand theft on July 15, 1987. In Bruner v. Board of Real Estate, Department of Professional Regulation, 399 So.2d 4 (Fla. 5th DCA 1981), the court determined that grand theft was a crime of this state involving moral turpitude, or fraudulent or dishonest dealings.

    
    

13. The signing of another person's name on a check and representing that it is that person's signature is a fraudulent or dishonest dealing. The registered real estate broker may be disciplined not only for dishonest conduct in which his only interest is a broker, but also for such conduct in his own personal business affairs. LaRossa v. Department of Professional Regulation, Division of Real Estate, (Fla. 3rd DCA 1985). Accordingly, the Respondent should be found guilty of violating Section 475.25(1)(f), Florida Statutes, based upon the seven counts of uttering forged instruments and six counts of

    grand theft involving fraudulent or dishonest dealings, as set forth in Count III of the Administrative Complaint.

    
    

14. In Count II of the Administrative Complaint, the Respondent allegedly failed to notify the Petitioner in writing of his guilty plea on December 10, 1986. The explanation given by the Respondent that he thought he had pled to a misdemeanor was reasonably consistent with the letter he submitted into evidence from his attorney. Under Section 475.25(1)(p), Florida Statutes, the licensee is only required to inform the commission of felony convictions. The Respondent's prompt notification of the commission as to the July 15, 1987, pleas in a felony case tends to confirm the explanation presented at hearing.

    As the Respondent was able to provide additional facts which placed his culpability in doubt as to Count II, the alleged violation should be dismissed.

    
    

15. Chapter 21V-24, Florida Administrative Code, sets forth the disciplinary guidelines which are applied to discipline cases. The minimum penalty for a violation of Section 475.25(1)(f), Florida Statutes, is a reprimand and/or a fine up to $1,000.00 per count. The maximum penalty is up to

7 years suspension or revocation.

Based upon the foregoing, it is RECOMMENDED:

1. That the Respondent be found GUILTY of having violated Section 475.25(1)(f), Florida Statutes, as set forth in Count I and Count III.

   
   

2. That the Respondent's real estate salesman license and nonactive broker's license be REVOKED for a period of seven years, in accordance with Section 21V-24.001(12), Florida Administrative Code. This recommendation aligns itself with the sentence of the circuit court judge who has given the Respondent, Richard L. Purkey, the opportunity to be placed in a community control program with probation in order to make restitution in Case No. 86- 1790CF.

   
   

3. That the Respondent be found NOT GUILTY of having violated 475.25(1)(p), Florida Statutes.

DONE AND ENTERED this 29th day of July 1988, at Tallahassee, Florida.

VERONICA E. DONNELL, 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 29th day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0399

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. Included in H. O. #1.

2. Accepted. Included in H. O. #1.

3. Accepted. Included in H. O. #2.

4. Accepted. Included in H. O. #3.

5. Rejected as to the date of the pleas. The rest is accepted. Included in H. O. #4.

6. Accepted. Included in H. O. #5.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Richard L. Purkey 1508 Willard Street

Leheigh, Florida 33936

Richard L. Purkey Post Office Box 3605

North Fort Myers, Florida 33918

Darlene F. Keller, Executive Director Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

William O'Neil, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-000399

Orders for Case No: 88-000399