STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3568

)

WILLIAM RICHARD ROSSMEYER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on August 20, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Senior Attorney

Florida Department of Professional Regulation, Division of Real Estate

400 West Robinson Street Suite N-308

Post Office Box 1900 Orlando, Florida 32802

For Respondent: William Richard Rossmeyer, pro se

180 Isle of Venice, #125 Post Office Box 7412

Fort Lauderdale, Florida 33338 STATEMENT OF THE ISSUES

Whether Respondent, a licensed real estate salesman in the State of Florida, committed the offenses set forth in the Administrative Complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondent is licensed in the State of Florida by Petitioner as a real estate salesman. On March 22, 1990, Petitioner filed a four count Administrative Complaint against Respondent. The Administrative Complaint alleged that Respondent had been convicted in federal court and subsequently incarcerated for the crime of counterfeiting. The Administrative Complaint alleges that Respondent did not notify Petitioner in writing as to those events.

Count I of the Administrative Complaint alleged that Respondent was guilty of false pretenses and dishonest dealing by trick, scheme or device, in a business transaction in violation of Section 475.25(1)(b), Florida Statutes.

Count II of the Administrative Complaint alleges that Respondent had been found guilty of a crime which directly relates to the activities of a licensed real estate salesman or involves moral turpitude or fraudulent or dishonest dealing in violation of Section 475.25(1)(f), Florida Statutes. Count III of the Administrative Complaint alleges that Respondent is guilty of failing to notify in writing the Florida Real Estate Commission within thirty days of having entered a plea of guilty to a felony in violation of Section 475.25(1)(p), Florida Statutes. Count IV of the Administrative Complaint alleges that Respondent was guilty of having been confined in federal prison in violation of Section 475.25(1)(n), Florida Statutes.

At the hearing, Petitioner offered six exhibits which were accepted into evidence without objection. Petitioner's Exhibit 1 is a composite exhibit consisting of a certified copy of Petitioner's licensure file on Respondent. Petitioner's Exhibit 2 is a certified copy of a Probation/Commitment Order entered as to Respondent in the United District Court for the Middle District of Florida on November 19, 1984. Petitioner's Exhibit 3 is a copy of a Grand Jury indictment entered against Respondent in the United District Court for the Middle District of Florida on July 26, 1984. Petitioner's Exhibit 4 is a copy of a plea agreement executed by Respondent on September 28, 1984, in the proceedings brought against Respondent in the United District Court for the Middle District of Florida. Petitioner's Exhibit 5 is an affidavit executed by Jack King, who is employed by the Florida Division of Real Estate as its Investigator Manager. Petitioner's Exhibit 6 is "Petitioner's First Request for Admissions and Respondent's Admissions" filed in these proceedings. At Petitioner's request, official recognition was taken Section 20.30, and Chapters 120, 455, and 475, Florida Statutes. In addition to the foregoing, Petitioner presented the Respondent as its only witness. The Respondent testified on his own behalf, but he presented no other witnesses. Respondent's only documentary evidence was a composite exhibit consisting of several letters of recommendation. This composite exhibit was marked as Respondent's Exhibit 1 and was accepted into evidence without objection from Petitioner.

No transcript of these proceedings has been filed. Specific rulings on the proposed findings of fact submitted by Petitioner may be found in the appendix to this Recommended Order. Respondent filed no post-hearing submittal.

FINDINGS OF FACT

1. Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida.

   
   

2. Respondent is now and was at all times material hereto a licensed real estate salesman in the State of Florida, having been issued license number 00390879.

   
   

3. The last license issued to Respondent was in 1988 as a salesman with Atlantic Marketing Realty, Inc., 224 Commercial Boulevard, Fort Lauderdale, Florida 33308.

   
   

4. On July 26, 1984, a Grand Jury indictment was filed against Respondent in the United States District Court for the Middle District of Florida and was assigned case number 84-67-CR-ORL-18. By Count Two of the indictment Respondent

   was charged with having sold, transferred, or delivered approximately 1,000 counterfeit Federal Reserve Notes in the denomination of $100 in violation of Title 18, United States Code, Section 473.

   
   

5. On September 28, 1984, Respondent entered into a "Plea Agreement" in which he agreed to plead guilty to Count Two of the indictment filed in case number 84-67-CR-ORL-18.

   
   

6. By this Plea Agreement, Respondent acknowledged that he entered into the agreement freely and voluntarily. Respondent acknowledged his understanding of the nature of the offense to which he agreed to plead guilty and the penalties therefor. The factual basis for his plea includes an admission that he knowingly delivered 1000 counterfeit $100 bills to two individuals at a motel in Daytona Beach, Florida, for which he received approximately $15,000.

   
   

7. On November 19, 1984, Respondent entered a plea of guilty to Count Two of the indictment, a felony. He was adjudicated guilty of this felony offense and sentenced to three years in prison. Respondent served approximately ten months of the three year sentence at the Federal Correctional Institute in Lexington, Kentucky. Upon his release from federal prison, Respondent spent four months at a halfway house in Fort Lauderdale, Florida. Respondent was not incarcerated at the time the Administrative Complaint was filed or at the time of the formal hearing.

   
   

8. Respondent contends that he thought that he was working for the federal government when he committed the acts which resulted in his incarceration. This contention is rejected as lacking credibility and as being contrary to the Respondent's Plea Agreement.

   
   

9. There is a dispute in the record as to whether Respondent notified Petitioner in writing as to his criminal conviction or his subsequent incarceration within thirty days of those events. Respondent contends that he notified Petitioner verbally and in writing of these events, but he was unable to identify the person he contends he notified verbally, nor did he produce a copy of his alleged written notification. Petitioner's records reflect no written notification from Respondent or from anyone on his behalf. This dispute is resolved by finding that Respondent did not notify Petitioner in writing as to his criminal conviction or his subsequent incarceration.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

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

    
    

    1. The commission may ... place a licensee

       ... on probation; may suspend a license ... for a period not exceeding 10 years; may revoke a license ...; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee ...:

       * * *

       (b) Has been guilty of fraud, misrepresenta- tion, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state ...

       * * *

       (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. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of this state shall be admissible as prima facie evidence of such guilt.

       * * *

       (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 of, any felony.

       
       

12. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

13. Petitioner established the allegations of Count I of the Administrative Complaint and Respondent's violation of Section 475.25(1)(b), Florida Statutes, by establishing that Respondent had engaged in counterfeiting.

    
    

14. Petitioner established the allegations of Count II of the Administrative Complaint and Respondent's violation of Section 475.25(1)(f), Florida Statutes, by establishing that Respondent had been convicted of the crime of counterfeiting, a crime involving moral turpitude or fraudulent or dishonest dealing.

    
    

15. Petitioner established that Respondent had, at one time, been incarcerated in federal prison, but Respondent was not incarcerated when the Administrative Complaint was filed or when the formal hearing was held. Because the provisions of Section 475.25(1)(n), Florida Statutes, relating to incarceration in federal prison are in the present tense, discipline under that provision can only be imposed while the licensee is confined in prison. Consequently, discipline under that provision cannot be imposed against Respondent under the facts of this case.

    
    

16. Petitioner established the allegations of Count IV of the Administrative Complaint and that Respondent failed to notify the Florida Real Estate Commission in writing within 30 days after having been adjudicated guilty of the felony offense in the United District Court for the Middle District of Florida in case number 84-67-CR-ORL-18, in violation of Section 475.25(1)(p), Florida Statutes.

17. The pertinent disciplinary guidelines adopted by the Florida Real Estate Commission may be found in Rule 21V-24.001(3), Florida Administrative Code. These guidelines provide that the minimum penalty to be imposed for a violation of Section 475.25(1)(b), (f), or (p), Florida Statutes, is a reprimand for each count, a fine up to $1,000 per count, or both a reprimand and a fine up to $1,000 per count. The maximum penalty for a violation of Section 475.25(1)(b), (f) or (p), Florida Statutes, is revocation of licensure. The guidelines provide that a combination of the possible penalties is permissible pursuant to Section 475.25(1), Florida Statutes.

    
    

18. In recommending the penalty that should be imposed in this matter, it is appropriate to consider the fraudulent nature of the felony offense committed by Respondent. In determining whether an administrative fine should be imposed against Respondent, consideration has been given to the absence of evidence that Respondent had used his real estate licensure for illegal gain. Additionally, consideration was given the fact that Respondent has been punished for his commission of this felony offense.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order which finds that Respondent violated the provisions of Section 475.25(1)(b),(f), and (p), Florida Statutes, and which revokes all real estate licenses previously issued Respondent. It is further recommended that no administrative fines be entered against Respondent.

RECOMMENDED this 13th day of September, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3568

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners.

1. The proposed findings of fact contained in paragraph 2 are rejected as being contrary to the evidence. Respondent's licensure is as a real estate salesman, not as a real estate broker. Whether Respondent was licensed as a broker or as a salesman would make no difference in the recommendation made as to the penalty to be imposed.

2. All other proposed findings of fact are adopted in material part by the Recommended Order.

COPIES FURNISHED:

James H. Gillis, Esquire Senior Attorney

Florida Department of Professional Regulation

Division of Real Estate

400 West Robinson Street Suite N-308

Post Office Box 1900 Orlando, Florida 32802

William Richard Rossmeyer

180 Isle of Venice, #125 Post Office Box 7412

Fort Lauderdale, Florida 33338

Darlene F. Keller Division Director

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 90-003568

Orders for Case No: 90-003568