STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4435

)

GEORGE CHACONAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 30, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Arthur R. Shell, Jr., Senior Attorney

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

For Respondent: George Chaconas, pro se

Federal Correctional Institute Capital Circle

#07593-018, PMB 1000 Unit B/X

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

Whether the Respondent, George Chaconas, a licensed real state salesman in the State of Florida, should be disciplined for violating Chapter 475, Florida Statutes?

PRELIMINARY STATEMENT

The Department of Professional Regulation, Division of Real Estate, filed an Administrative Complaint dated July 23, 1988, alleging that the Respondent, George Chaconas, violated Section 475.25(1)(f) and (n), Florida Statutes, and seeking to discipline the Respondent's license as a real estate salesman. On August 17, 1988, the Respondent executed an Election of Rights disputing the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing.

At the formal hearing the Petitioner offered two exhibits which were accepted into evidence. The Petitioner did not present any witnesses. The Respondent testified on his own behalf and presented the testimony of William

Meusch and Joe Godfrey. The Respondent also offered eight exhibits which were accepted into evidence.

The parties were given an opportunity to file proposed recommended orders on or before June 9, 1989. Neither party did so. The Recommended Order was to be issued on or before June 29, 1989. On June 19, 1989, the Respondent filed a letter dated June 7, 1989, indicating that he wanted to order a transcript of the hearing. Because of this request an Order Concerning Recommended Order was issued on June 27, 1989, indicating that the Recommended Order would not be issued until after the transcript had been filed and the undersigned had had an opportunity to review the transcript. Therefore, the issuance of this Recommended Order was delayed until ten days after the transcript was filed.

The transcript has been filed and considered.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida responsible for licensing and regulating real estate salesmen in the State of Florida.

   
   

2. The Respondent, George Chaconas, at all times pertinent hereto, was, and still is, the holder of a Florida real estate salesman license, number 0402455.

   
   

3. The Respondent was convicted on February 2, 1988, of conspiracy to distribute cocaine, a felony. The Respondent was convicted in United States District Court, District of Baltimore.

   
   

4. On April 15, 1988, the Respondent was sentenced to fifteen years imprisonment.

   
   

5. The Respondent is presently serving his sentence in the Federal Correctional Institute located in Tallahassee, Florida.

   
   

6. By letter dated February 29, 1988, from the Respondent's counsel, the Petitioner was informed of the Respondent's conviction.

   
   

7. The Respondent's conviction is currently on appeal.

   
   

8. Mitigating circumstances in this case include the following: (1) the evidence failed to prove that the Respondent's violations harmed real estate consumers or the real estate public; (2) there are two counts in the Administrative Complaint; (3) this is the first time the offense has been committed; (4) no disciplinary action has been taken against the Respondent in the past; (5) the Respondent was not on probation or under suspension at the time the violations occurred; (6) the real state business will be the Respondent's only source of income when he is released from incarceration; and

   (7) the Respondent has not received a letter of guidance.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

   
   

10. Pursuant to Section 475.25(1), Florida Statutes, the Petitioner has the authority to "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 $1,000.00 . . . and may issue a reprimand, or any or all of the foregoing

    . . ." if it is found that a license holder had committed certain acts. In this case, the Petitioner has alleged, and the evidence proves, that the Respondent has committed the following prohibited acts:

    
    

    (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. . . .

    
    

11. The evidence presented in this case proved that the Respondent was found guilty of a crime involving moral turpitude. See Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981); and Carp v. Florida Real Estate Commission, 211 So.2d 240 (Fla. 3d DCA 1968). The Respondent has, therefore, violated Section 475.25(1)(f), Florida Statutes.

    
    

12. The evidence also proved that the Respondent is confined in a federal prison. Therefore, the Respondent is in violation of Section 475.25(1)(n), Florida Statutes.

    
    

13. Chapter 21V-24, Florida Administrative Code, provides guidelines which must be applied in determining the appropriate discipline which should be imposed upon the Respondent in this case. The minimum penalty which should generally be imposed for a single violation is a reprimand and/or a fine up to

    $1,000.00. Rule 21V-24.001(3), Florida Administrative Code. The maximum penalty for a single violation of Section 475.25(1)(f), Florida Statutes, is "[u]p to 7 years suspension or revocation." Rule 21V-2 .001(3)1), Florida Administrative Code. The maximum penalty for a single violation of Section 475.25(1)(n), Florida Statutes, is [s]uspension for period of confinement to revocation.

    
    

14. Pursuant to Rule 21V-24.001(4), Florida Administrative Code, requires that the guidelines can be deviated from if clear and convincing proof of aggravating or mitigating circumstances is given. The aggravating and mitigating circumstances to be taken into account include the following:

    
    

    1. The severity of the offense.

    2. The degree of harm to the consumer or public.

    3. The number of counts in the Administrative Complaint.

    4. The number of times the offenses previously have been committed by the licensee.

    5. The disciplinary history of the licensee.

    6. The status of the licensee at the time the offense was committed.

    7. The degree of financial hardship incurred by a licensee as a result of the imposition of a fine or suspension of the license.

    8. Violation of the provision of Chapter 475, Florida Statutes, where in a letter of guidance as provided in Section 455.225(3), Florida Statutes, previously has been issued to the licensee.

15. Based upon the evidence presented in this case the Respondent's license as a real estate salesman should either be revoked or suspended for at least the period of time that the Respondent is incarcerated and until the Respondent can prove to the Florida Real Estate Commission that he has been fully rehabilitated. Pursuant to Rule 21V-18.008(3), Florida Administrative Code, it is provided that revocation "shall remain in full force and effect until modified, vacated, or rescinded upon good cause therefore being shown to the Florida Real Estate Commission." Based upon this Rule, the Respondent should be able to get his license reissued upon a showing of rehabilitation.

    
    

16. In light of the seriousness of the offense for which the Respondent was convicted and the length of his sentence, and in light of the fact that the Respondent should be able to get his license reissued upon a showing of rehabilitation, it is concluded that revocation is the appropriate disciplinary action in this case.

    
    

17. If the Respondent's conviction is overturned on appeal, his license should be restored.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's license as a real estate salesman by

revoked; provided, that if the Respondent's conviction is reversed on appeal, his license as real estate sales can be reinstated.

DONE and ENTERED this 29th day of August, 1989, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1989.

COPIES FURNISHED:

Arthur R. Shell, Jr.

Senior Attorney

Department of Professional Regulation Division of Real Estate

Legal Section

Post Office Box 1900 Orlando, Florida 32802

George Chaconas

Federal Correctional Institute Capital Circle

#07593-018, PMB 1000 Unit B/X

Tallahassee, Florida 32301

Kenneth Easley, Esquire Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32390-0729

Darlene F. Keller Division Director

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando Florida 32802

Docket for Case No: 88-004435

Orders for Case No: 88-004435