STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4928

)

JAMES K. HART, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on June 6, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Kenneth G. Stevens, Esquire

412 N.E. 4th Street

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent's license as a real estate broker-salesman should be revoked or otherwise disciplined.

PRELIMINARY STATEMENT

By administrative complaint dated May 23, 1988, petitioner charged that respondent violated the provisions of Section 475.25(1)(f), (n), and (p), Florida Statutes, by having been convicted of a crime involving moral turpitude, having been confined to a state prison, and having failed to notify petitioner within thirty days of having pled nolo contendere or having been convicted of a felony. Respondent denied the allegations of the administrative complaint, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing.

At hearing, petitioner called no witnesses, but its exhibits 1-8 were received into evidence. Respondent testified on his own behalf, and his exhibit

1 was received into evidence.

A transcript of hearing was not ordered. Accordingly, the parties were granted leave until June 16, 1989, to file proposed findings of fact.

Petitioner elected to file proposed findings of fact, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, James K. Hart (Hart), was at all times material hereto licensed as a real estate broker-salesman in the State of Florida, having been issued license number 0302051.

   
   

2. On November 26, 1986, in the Criminal Court of Washington County, Tennessee, Hart entered a voluntary plea of nolo contendere to the felony charge of attempt to commit a felony (conspiracy to distribute cocaine in excess of 30 grams). On October 6, 1987, the court found Hart guilty, and he was sentenced to three years confinement and ordered to pay a fine of $75,000.

   
   

3. Hart did not notify petitioner within thirty days of having pled nolo contendere or having been convicted of such felony.

   
   

4. Hart served 10 months and 27 days of his sentence in the county jail at Johnson City, Tennessee, and then, on August 27, 1988, was released to serve a two-year term of probation. Currently, Hart is serving his two-year term of probation, and reporting to authorities in Broward County, Florida.

   
   

5. Hart is currently 50 years of age, and employed to sell kitchen cabinets. From such employment he grosses an income of $25,000 a year. At hearing, Hart offered proof that, as a consequence of his conviction, he owed approximately $220,000 to members of his family and his attorneys. According to Hart, absent the ability to practice as a real estate salesman, his chosen profession, he has no expectations of paying such debts or of providing for his retirement years. While the offense for which he was convicted involved a conspiracy to distribute cocaine, he avers that he has never used drugs, but committed the offense solely because of greed.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Pertinent to this case, Section 475.25, Florida Statutes (1987), provides:

   
   

   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 all of the foregoing, if it finds that the

      licensee ....

      (f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which ... involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of

      this paragraph ....

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

      (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.

      
      

8. Here, the proof is clear and convincing that Hart was convicted of a crime involving moral turpitude, and that he failed to notify the Commission within 30 days after pleading nolo contendere to, or being convicted of, a felony. Accordingly, Hart has violated the provisions of Sections 475.25(1)(f) and (p), Florida Statutes. Hart was not, however, confined in a state or federal prison, and was not confined in any facility at the time of hearing. Accordingly, Hart has not violated the provisions of Section 475.25(1)(n), Florida Statutes.

   
   

9. In assessing the appropriate penalty in the instant case, the disciplinary guidelines set forth in Rule 21V-24.001, Florid Administrative Code, have been considered. Considering the seriousness and recentness of Hart's offense, the fact that he is still subject to a term of probation, and such guidelines demonstrates that an appropriate penalty in the instant case is revocation.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the real estate broker-salesman's license of respondent,

James K. Hart, be revoked.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June 1989.

WILLIAM J. KENDRICK

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 30th day of June 1989.

APPENDIX

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

1. Addressed in paragraph 1.

2. Not relevant.

3. Addressed in paragraph 2.

4. Addressed in paragraph 4.

COPIES FURNISHED:

STEVEN W. JOHNSON, ESQUIRE

DEPARTMENT OF PROFESSIONAL REGULATION

400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32801

KENNETH G. STEVENS, ESQUIRE

412 NE 4TH STREET

FORT LAUDERDALE, FLORIDA 33301

DARLENE F. KELLER, DIVISION DIRECTOR DIVISION OF REAL ESTATE

DEPARTMENT OF PROFESSIONAL REGULATION

400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32801

Docket for Case No: 88-004928

Orders for Case No: 88-004928