STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0224

)

ROBERT J. PEEBLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on June 8, 1990, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

DPR - Division of Real Estate

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

For Respondent: Robert J. Peebles, pro se

Post Office Box 40063

St. Petersburg, Florida 33743 STATEMENT OF THE ISSUES

Whether the Respondent's real estate broker's license should be suspended, revoked, or otherwise disciplined based upon the alleged multiple violations of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

In an Administrative Complaint dated August 17, 1989, the Petitioner, Department of Professional Regulation (the Department), charged the Respondent, Robert J. Peebles (Peebles), with a series of violations of Chapter 475, Florida Statutes. Essentially, the Respondent is charged with having entered a guilty plea and having been adjudicated guilty of the felonious offense of using unauthorized access devices (credit cards) to obtain items of value aggregating

$1,000 or more in a one-year period. In addition, the Respondent is charged with having failed to notify the Real Estate Commission in writing of his guilty plea and subsequent conviction.

The Respondent Peebles contested the factual allegations contained in the Administrative Complaint and requested a formal administrative hearing to resolve the factual disputes.

During the hearing, the Department submitted five exhibits. Exhibit #4 was rejected by the Hearing Officer as being irrelevant to the proceedings. The Respondent filed two exhibits and testified in his own behalf. The second exhibit was filed posthearing with leave of the Hearing Officer. Both exhibits were admitted into evidence.

A transcript of the proceedings was not ordered. A written closing argument was filed by the Respondent, and a proposed recommended order was filed by the Petitioner. Rulings on the proposed findings of fact filed by Petitioner are in the Appendix of the Recommended Order.

FINDINGS OF FACT

1. The Department is the agency charged with the licensing and regulation of real estate salesmen and brokers.

   
   

2. At all times material to these proceedings, Respondent Peebles was a licensed real estate broker in Florida, having been issued license number 0396895. The last license issued was placed at 2690 52nd Street North, St. Petersburg, Florida. The home address listed with the Florida Real Estate Commission was Post Office Box 40063, St. Petersburg, Florida.

   
   

3. On April 7, 1987, the Respondent entered a plea of guilty to the crime of credit card fraud in the United States District Court Middle District of Florida, Case No. 86-215 Cr- Orl-19. The crime was a felony in that the alleged acts involved the unauthorized use of access devices (credit cards) to obtain items of value aggregating $1,000 or more in a one-year period. The case was in federal court because the offense affected interstate and foreign commerce.

   
   

4. The crime did not involve any business dealings in which the Respondent was acting as a real estate salesman or broker. However, the crime did involve fraudulent or dishonest dealings.

   
   

5. Upon acceptance of the Respondent's plea, the court adjudicated the Respondent guilty and sentenced him to three years of imprisonment at Maxwell Air Force Base in a minimum security federal prison. In addition, the Respondent was ordered to make restitution of $60,590.00, and pay court costs. The sentencing occurred on April 7, 1987.

   
   

6. A timely appeal from the judgment and sentence was not taken by the Respondent.

   
   

7. The Respondent did not notify the Department of his guilty plea and subsequent conviction within the thirty-day period required by Section 475.25(1)(p), Florida Statutes.

   
   

8. A Motion for New Trial based upon the ground of newly discovered evidence, was filed by the Respondent in the criminal case on March 1, 1990. The United States District Court, Middle District of Florida, has not ruled on the motion.

   Mitigation

   
   

9. The Respondent does not currently have the financial ability to pay any fines if that penalty were to be imposed upon him in this case.

   
   

10. The Respondent failed to notify the Florida Real Estate Commission of his conviction because he was under extreme stress when the conviction occurred and he was incarcerated.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Sections 120.57 and 120.60, Florida Statutes.

    
    

12. Section 475.25, Florida Statutes, empowers the Florida Real Estate Commission to revoke, suspend, or otherwise discipline the real estate license of the Respondent if he is found guilty of any of the acts enumerated in Section 475.25, Florida Statutes.

    
    

13. Section 475.25(1), Florida Statutes, provides as follows, in pertinent part:

    
    

    1. The commission may ... suspend a license or permit for a period not exceeding ten 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 the licensee, permittee, or applicant ...

       * * *

       (b) Has been guilty of ... dishonest dealing by trick, scheme or device...

       (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 ... salesman ... or involves moral turpitude or fraudulent or dishonest dealing. ... 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 ... federal prison...

       * * *

       (p) Has failed to inform the commission in writing within 30 days after pleading guilty to ... any felony...

14. In Count I of the Administrative Complaint, the Respondent is charged with having been guilty of dishonest dealings by trick, scheme or device. This charge was proved when the certified copy of the conviction of credit card fraud was placed into evidence. As a result, the Respondent is guilty of having violated Section 475.25(1)(b), Florida Statutes, as set forth in Count I of the complaint.

    
    

15. Count II addresses the Respondent's conviction for credit card fraud. The evidence adduced at hearing demonstrates that the conviction occurred, and that the crime involved fraudulent or dishonest dealings.

    
    

16. During the hearing, the Respondent attempted to relitigate the prior judicial determination of his guilt in the felony offense. Such matters cannot be relitigated in a license revocation proceeding. McGraw v. Department of State, Division of Licensing, 491 So.2d 1193 (Fla. 1st DCA 1986). Accordingly, the evidence was not considered and the Respondent was found guilty of the violation of Section 475.25(1)(f), Florida Statutes, as alleged in Count II of the complaint.

    
    

17. Count III charges the Respondent with failing to notify the Real Estate Commission in writing of his conviction. The Respondent admits that he committed this violation, and is guilty of having violated Section 475.25(1)(p), Florida Statutes, as set forth in Count II of the complaint.

    
    

18. Count IV charges the Respondent with having been confined in federal prison. Through the authenticated copy of the Respondent's sentence and the Respondent's own admissions, it was proved that confinement in federal prison resulted from the conviction of credit card fraud. Therefore, the Respondent is guilty of having violated Section 475.25(1)(n), Florida Statutes, as alleged in Count IV of the complaint.

    
    

19. Chapter 21V-24, Florida Administrative Code, sets forth the disciplinary guidelines which are applied to discipline cases. The minimum penalty for a violation of Section 475.25(1), Florida Statutes, is a reprimand and/or fine up to $1,000 per count. The maximum penalty is up to 7 years suspension or revocation. A violation of Section 475.25(1)(f), Florida Statutes, allows the Florida Real Estate Commission to impose a suspension or revocation for seven years. Penalties for the other alleged violations need not be addressed as the Respondent should not receive multiple punishments under different subsections of Section 475.25(1), Florida Statutes, for the same misconduct.

RECOMMENDATION

Based upon the findings of fact, conclusions of law, and the mitigation presented by the Respondent, it is RECOMMENDED:

1. That the Respondent be found guilty of the allegations in Counts I through IV, which were proved at hearing.

   
   

2. That the Respondent's real estate broker's license be revoked for seven years.

DONE and ENTERED this 9th day of July, 1990, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 9th day of July, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0224

The Department's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1.

2. Accepted. See HO #2.

3. Accepted. See HO #2.

4. Accepted. See HO #3, #4 and #5.

5. Accepted. See HO #5.

6. Rejected. See HO #9.

7. Accepted. See HO #7.

8. Rejected. Irrelevant.

COPIES FURNISHED:

James H. Gillis, Esquire

DPR - Division of Real Estate

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

Robert J. Peeples Post Office Box 40063

St. Petersburg, Florida 33743

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Darlene F. Keller, Executive Director DPR - Division of Real Estate

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

Docket for Case No: 90-000224

Orders for Case No: 90-000224