STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2062

)

WILLIAM LEA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before Daniel M. Kilbride, Hearing Officer, Division of Administrative Hearings, on June 1, 1989, in Orlando, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Senior Attorney

DPR - Division of Real Estate

400 W. Robinson Street

P.O. Box 1900

Orlando, Florida 32802

(407)423-6134

For Respondent: Harrison Slaughter, Esquire

56 East Pine Street, Suite A Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether the Respondent's real estate license should be disciplined because the Respondent has been found guilty of a crime which directly relates to the activities of a licensed real estate salesman or involves moral tupitude or fraudulent or dishonest dealing.

PRELIMINARY STATEMENT

By Administrative Complaint filed on March 23, 1989, the Petitioner, Department of Professional Regulation, Division of Real Estate, alleged Respondent violated Subsection 475.25(1)(f), Florida Statutes. Based on these charges, the Petitioner seeks to discipline the Respondent's real estate license.

The Respondent disputed the charges and requested a Section 120.57(1), Florida Statutes hearing. Thereafter, a formal hearing was held on June 1, 1989 in Orlando, Florida.

At the hearing the Petitioner and Respondent's exhibits were stipulated and entered into evidence by the parties and the Respondent testified. Proposed findings of fact submitted by the parties are addressed in the Appendix to this recommended order.

FINDINGS OF FACT

Based on the evidence presented at hearing, the following facts are determined:

1. At all times pertinent to the charges, the Respondent was a licensed Florida real estate salesman having been issued license number 0400199 in accordance with Chapter 475, Florida Statutes.

   
   

2. The license issued during all times material to the facts alleged in the Administrative Complaint was as salesman, % Emerson Realty Group of Volusia County, Inc., 322 Silver Beach Avenue, Daytona Beach, Florida 32018.

   
   

3. The Respondent, in the United States District Court, Middle District of Florida, entered a plea of guilty to one count of filing a false tax return, a felony, whereupon on October 17, 1988, the Respondent was sentenced to a period of probation and fined $2,500.

   
   

4. Via letter dated October 31, 1988, the Respondent's attorney timely notified the Petitioner of the felony charges, plea and disposition.

   
   

5. In mitigation, Respondent testified and his exhibits indicate that Respondent's former wife was the office manager and book keeper until 1983. Respondent did not prepare the income tax return for which he entered his plea, his former wife did so.

   
   

6. He relied on his former wife's competency and goodwill in preparing all documents relating to his main business, the pest control business. She reported the errors on his income tax returns to the Internal Revenue Service out of spite and greed (in hopes of collecting a 10% reward).

   
   

7. The basis for the conviction of filing a false tax return did not involve a real estate transaction.

   
   

8. Respondent has no prior convictions for any other crime.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative hearings has jurisdiction over the subject matter of and the party to these proceedings pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

10. Subsection 475.25, Florida Statutes, (1987) provides that the Florida Real Estate Commission may suspend a license for the offense charged for a period of not exceeding seven (7) years; revoke a real estate license; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and, may impose a reprimand or, any or all of the foregoing, if it finds that a licensee has violated Subsections 475.25(1)(f), Florida Statutes, (1987).

11. Subsection 475.25(1)(f), Florida Statutes (1987) provides that the Commission may discipline a licensee who has been convicted of a crime directly relating to the activities of a licensed real estate salesman or which involves moral turpitude.

    
    

12. Revocation of license proceedings are penal in nature. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). The burden of proof is on the Petitioner Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The burden of proof required in this matter is simply that relevant and material findings of fact must be supported by clear and convincing evidence. Hel Helfetz, d/b/a Key Wester Inn

    v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985.)

    
    

13. The Respondent in his answer admitted paragraphs 1 through 5 of the Administrative Complaint and acknowledged at hearing that the offense of which the Respondent was found guilty is a crime of moral turpitude. See Winkelman v. Department of Banking and Finance, 10 FALR 6001, (Fla. 3rd DCA, 1988).

    
    

14. Crimes of moral turpitude involve duties owed by man to society, as well as acts contrary to justice, honesty, principle, or good morals. By subscribing a false tax return, the Respondent caused the government to be defrauded. The perjury involved is the gravamen of the offense.

    
    

15. As a real estate licensee in Florida, the Respondent occupies a status under law with recognized privileges and responsibilities Zichlin v. Dill, 25 So.2d 4 (Fla. 1946); United Homes Inc. v. Moss, 54 So.2d 351 (Fla. 2nd DCA 1963). Inasmuch as a real estate licensee in Florida belongs to a privileged class, the State has prescribed a high standard of qualifications. Zichlin, supra. "The law specifically requires that a person, in order to hold a real estate license, must make it appear that he is honest, truthful, trustworthy, of good character and that he bears a good reputation for fair dealing." McKnight

    v. Florida Real Estate Commission, 209 So.2d 199 (Fla. 2nd DCA 1967). Anyone who deals with a licensee may assume he is dealing with an honest and ethical person. Shelton v. Florida Real Estate Commission, 120 So.2d 191 (Fla. 2nd DCA 1960).

    
    

16. The Petitioner's proof is clear and convincing that the Respondent is guilty of having committed a violation of Subsection 475.25(1)(f), Florida Statutes (1987)

    
    

17. Respondent has demonstrated mitigating circumstances surrounding his plea of guilty which should be considered in imposing an appropriate discipline. Rule 21V-24.001(4)(a), Florida Administrative Code.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, and the evidence of the record, including the contents of the several exhibits received into evidence, it is, therefore:

RECOMMENDED that the Respondent William Lea be found guilty of having violated Subsection 475.25(1)(f), Florida Statutes (1987) as charged in the Administrative Complaint. It is further:

RECOMMENDED that Respondent William Lea receive a reprimand, an administrative fine of $400.00.

DONE and ENTERED this 27th day of June, 1989 in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 27th day of June, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Recommended Order: Paragraphs 1 - 3. Accepted

Respondent's Proposed Recommended Order:

Respondent did not submit separate findings of fact.

COPIES FURNISHED:

STEVEN W. JOHNSON, ESQUIRE SENIOR ATTORNEY

DPR - DIVISION OF REAL ESTATE

400 W. ROBINSON STREET

P.O. BOX 1900

ORLANDO, FLORIDA 32802

HARRISON SLAUGHTER, ESQUIRE

56 EAST PINE STREET, SUITE A ORLANDO, FLORIDA 32801

DARLENE F. KELLER, DIVISION DIRECTOR DIVISION OF REAL ESTATE

400 W. ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802

KENNETH E. EASLEY, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION NORTHWOOD CENTRE

1940 NORTH MONROE STREET SUITE 60

TALLAHASSEE, FLORIDA 32399-0792

Docket for Case No: 89-002062

Orders for Case No: 89-002062