STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5796

)

FRANK LAROCCA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on January 12, 1990, at Tampa, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

400 W. Robinson Street Orlando, Florida 32801-1772

For Respondent: Frank LaRocca, pro se

4814 River Boulevard

Tampa, Florida 33603 STATEMENT OF THE ISSUES

Whether Respondent's license should be disciplined by reason of his conviction of a crime involving moral turpitude.

PRELIMINARY STATEMENT

By Administrative Complaint filed September 20, 1989, the Department of Professional Regulation, Board of Real Estate, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Frank LaRocca, Respondent, as a real estate broker. As grounds therefore, it is alleged that Respondent was convicted of conspiracy to commit bank fraud in the United States District Court for the Middle District of Florida, which is a crime involving moral turpitude.

At the hearing, Petitioner presented Exhibits 1-5, Respondent testified in his own behalf and presented Exhibits 6- 11. All exhibits were admitted into evidence. Proposed findings submitted by Petitioner, with the exception of finding 3, are accepted. In Finding 3, on line 3 when the word "jury" is substituted for "judge," this finding is accepted.

FINDINGS OF FACT

1. At all times relevant hereto Frank LaRocca, Respondent, was the holder of Real Estate Broker License Nos. 0050488, 0236407 and 0170796 issued by the Florida Real Estate Commission.

   
   

2. On or about July 12, 1989, the Respondent, in the United States District Court, Middle District of Florida, upon a verdict of guilty rendered by a jury, was found guilty of five counts of conspiracy to commit bank fraud, a felony.

   
   

3. On or about July 12, 1989, Respondent was sentenced to imprisonment for four years.

   
   

4. On or about August 1, 1989, the United States District Court Judge ordered a stay of the judgment against Respondent pending completion of Respondent's appeal.

   
   

5. Frank LaRocca was a vice-president of the Central Bank in Tampa, Florida, when he retired in May 1984 after working at this bank for 31 years. During this period, he enjoyed a good reputation in the community.

   
   

6. Upon his retirement from the bank, he became an active real estate broker principally investing in real estate.

   
   

7. The transactions which formed the bases for his conviction in federal court involved bank loans on condominiums he and three other partners purchased. These bank loans had all been repaid at the time of Respondent's trial but one, which had been refinanced by the bank.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 475.25(1)(f), Florida Statutes, provides the Commission may revoke or otherwise discipline the license of a licensee if the licensee has been convicted or found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealings. The offense of bank fraud involves moral turpitude and fraudulent or dishonest dealings.

   
   

10. The judgment of the court is not subject to collateral attack in these proceedings. Accordingly, the testimony of Respondent regarding his innocence of the charges of which he has been found guilty can be considered by this tribunal only in mitigation of the offense of which he was convicted.

    
    

11. Respondent was unrepresented in these proceedings and obviously failed to understand the type of evidence needed to rebut the presumption of unfitness to be a real estate broker that accompanies a conviction of a crime involving moral turpitude. As a result, he presented no witnesses to attest to his reputation in the community for truth and honesty except himself. He did present evidence that the bank fraud for which he was convicted resulted in no financial loss to the bank or banks involved. For some reason known only to Respondent's attorney this evidence was not presented at his trial.

    
    

12. From the foregoing, it is concluded that Petitioner has presented a prima facie case that Respondent is unfit to hold a license as a real estate

    broker by reason of having convicted of a crime involving bank fraud. To rebut that prima facie case, Respondent presented evidence that he worked in Tampa for the same bank for 31 years before his retirement, that he had a good financial record and the same bank he allegedly defrauded would still lend him money, and that the banks he allegedly defrauded suffered no financial loss.

    
    

13. The disciplinary guidelines for violation of Section 475.25(1)(f), Florida Statutes, is contained in Rule 21B-24.001, Florida Administrative Code, shows the minimum penalty for one found guilty of this offense is a reprimand and/or a fine of up to $1000 per count; and the maximum penalty of up to seven years suspension or revocation.

    
    

14. It is further concluded that Respondent does not constitute a danger to the public while acting as a real estate broker. Another matter considered is that if Respondent's conviction is overturned on appeal, there will exist no basis for revoking or suspending his license; and any such punishment would be set aside.

RECOMMENDATION

Taking all these factors into consideration, it is recommended that the licenses of Frank LaRocca as a real estate broker be revoked, but the revocation be stayed pending completion of his appeal to the court of appeals or two years whichever first occurs. At that time, depending upon the action of the court of appeals, his license be revoked or these proceedings dismissed.

ENTERED this 7th day of February, 1990, in Tallahassee, Florida.

K. N. AYERS 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 7th day of February, 1990.

COPIES FURNISHED:

Steven W. Johnson, Esquire Kenneth E. Easley Division of Real Estate General Counsel

400 W. Robinson Street Department of Professional

Orlando, FL 32801-1772 Regulation

1940 N. Monroe Street

Frank LaRocca Suite 60 Tallahassee, Florida 32399-0792 4814 River Boulevard

Tampa, FL 33603

Darlene F. Keller Division Director Division of Real Estate

400 W. Robinson Street Post Office Box 1900 Orlando, FL 32801

Docket for Case No: 89-005796

Orders for Case No: 89-005796