STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2021

)

ROBERT GARY HANGER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing at the federal prison camp on Eglin Air Force Base, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on October 26, 1989. Petitioner filed a proposed recommended order on November 6, 1989. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Steven W. Johnson

400 W. Robinson Street Orlando, Florida 32801

For Respondent: Robert Gary Hanger

STATEMENT OF THE ISSUES

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT

By administrative complaint dated March 23, 1989, petitioner alleged that respondent "at all times material . . . a licensed real estate salesman in the State of Florida . . . [o]n or about December 22, 1988, . . . in the United States District Court, Western District of North Carolina, upon a plea of guilty, was found guilty of conspiracy to unlawfully possess with intent to distribute 30 kilograms of cocaine, a felony . . . [and] was sentenced to 60 months imprisonment plus three years supervised release . . . [and so] is guilty of having been found guilty of a crime which involves moral turpitude in violation of Subsection 475.25(1)(f), Florida Statutes"; nd that respondent "is guilty of having been confined in a federal prison thereby being in violation of Subsection 475.25(1)(n), Florida Statutes."

FINDINGS OF FACT

1. On April 18, 1988, the United States District Court for the Western District of North Carolina accepted respondent Robert Gary Hanger's written plea of guilty to an indictment charging him both with conspiracy to unlawfully possess with intent to distribute and with actually distributing 30 kilograms of cocaine "a Sch. II narcotic controlled substance in violation of Title 21, USC, Sections 841(a)(1) & 846 as charged in count 2 of the bill of indictment." Petitioner's Exhibit Number 2.

   
   

2. On July 14, 1988, respondent filed an application for a real estate salesman's license. In response to question No. 6 on the application, he reported his arrest and guilty plea to petitioner. Nevertheless, on December 10, 1988, petitioner granted his application and issued the license.

   
   

3. On December 19, 1988, Robert D. Potter, Chief Judge, United States District Court for the Western District of North Carolina, adjudicated the respondent guilty and pronounced sentence of 60 months' incarceration to be followed by three years' probation.

   
   

4. Later that day Mr. Hanger came into physical possession of the real estate salesman's license for the first time.

   
   

5. By letter petitioner received on January 3, 1989, respondent gave notice of his conviction and sentence. Petitioner's Exhibit No. 4. At the time of the hearing Mr. Hanger was incarcerated at a federal prison on the Eglin Air Force Base Reservation.

   
   

   CONCLUSIONS OF LAW

   
   

6. Statutorily prohibited from conducting formal administrative hearings itself, the Florida Real Estate Commission referred respondent's request for hearing to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987). As a result, the "division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1987).

   
   

7. But it is the Florida Real Estate Commission on whom the statutes confirm authority to act, once a recommended order has been entered.

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. Any plea of nolo contendere shall be considered a conviction

for purposes of this paragraph. The record of 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.

(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.

Section 475.25(1) Florida Statutes (1987). Here petitioner seeks a recommendation that respondent "be suspended during his period of imprisonment and probation." Proposed recommended order, page 7.

License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987). See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

Respondent has raised no issue of estoppel here, and proof both of conviction and of incarceration, was clear.

RECOMMENDATION

It is, accordingly, and in keeping with Rule 21V- 24.001(l) and (t), Florida Administrative Code.

RECOMMENDED:

That petitioner suspend respondent's license until he successfully completes probation.

DONE and ENTERED this 17th day of November, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 17th day of November, 1989.

APPENDIX

With respect to petitioner's proposed findings of fact Nos. 1 and 2, respondent did not yet hold a license when he pleaded guilty.

Petitioner's proposed findings of fact Nos. 3 through 8 have been adopted, in substance, insofar as material.

COPIES FURNISHED:

Steven W. Johnson, Esquire

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

Robert Gary Hanger, #06948058 Federal Prison Camp Eglin Post Office Box 600

Eglin A.F.B., Florida 32542-7606

Docket for Case No: 89-002021

Orders for Case No: 89-002021