STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-0347

)

ELMER J. SON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings on April 11, 1991, in Miami, Florida.

APPEARANCES

FOR PETITIONER: James H. Gillis, Esquire

Senior Attorney

Department of Professional Regulation Division of Real Estate

Hurston Building North Tower

400 West Robinson Street, Suite N-308 Post Office Box 1900

Orlando, Florida 32802-1900

FOR RESPONDENT: Manuel Gonzalez, Jr., Esquire

Manuel Gonzalez, Jr., P.A., 1531 Northwest 13th Court Miami, Florida 33125

STATEMENT OF THE ISSUES

The ultimate issues for determination in this proceeding are whether Respondent was found guilty of a crime and whether Respondent was confined in a county jail in violation of Sections 475.25(1)(f) and (n), Florida Statutes. 1/

PRELIMINARY STATEMENT

Petitioner served Respondent with an Administrative Complaint on December 6, 1990. Respondent requested a formal hearing on January 2, 1991. The matter was referred to the Division of Administrative Hearings on January 16, 1991, for assignment of a hearing officer, and assigned to Hearing Officer Menton on January 22, 1991. A formal hearing was scheduled for April 11, 1991, pursuant to a Notice of Hearing issued on January 29, 1991. The matter was transferred to the undersigned prior to the formal hearing.

At the formal hearing, Petitioner presented the testimony of no witnesses but submitted five exhibits for admission in evidence. Petitioner's Exhibits 1 and 2 were admitted without objection. Petitioner's Exhibits 3-5 were admitted over objection. 2/

Respondent testified in his own behalf and submitted 15 exhibits for admission in evidence. Respondent's Exhibits 1,

5-8, and 11-14 were admitted in evidence without objection. Respondent's Exhibits 2-4, and 10 were admitted in evidence over objection. Respondent's Exhibit 15 was not admitted in evidence. 3/

A transcript of the record of the formal hearing was requested by Petitioner and filed with the undersigned on May 3, 1991. Proposed findings of fact and conclusions of law were originally due from the parties on May 13, 1991. The time for filing proposed findings of fact and conclusions of law was extended until May 23, 1991, in response to Respondent's Motion for Extension of Time filed on May 14, 1991. Petitioner's proposed findings of fact and conclusions of law were timely filed on May 9, 1991. Respondent's proposed findings of fact and conclusions of law were timely filed on May 23, 1991. The parties' proposed findings of fact are addressed in the Appendix to this Order.

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed real estate broker in the state, holding license numbers 0473019 and 0258304. The licenses were issued was as a broker

   %Realty One & Associates, Inc., 131 East Enid Drive, Key Biscayne, Florida 33149, and as a broker %Realty One of Miami, Inc., 1215 N.E. 128th Street, North Miami, Florida 33161.

   
   

2. Respondent earned a Bachelor of Architecture degree from Ohio State University in 1955. Respondent was a contractor and real estate broker in the State of Ohio for 20 years prior to moving to Florida in 1985. There is no licensing requirement for contractors in the State of Ohio. In January, 1989, Respondent obtained a certified building contractor license in Florida.

   
   

3. Respondent was charged with conducting the business of a contractor without being licensed or certified in violation of Section 489.127(1)(F), Florida Statutes. An Information was filed against Respondent in Dade County Court Case Number 89- 89550 on December 8, 1989. The Information charged that Respondent

   
   

   . . . did unlawfully engage in the business

   or act in the capacity of a contractor without being duly registered or certified, by contracting to perform remodeling work and

   the construction of an addition to the premises of MR. GARY R. GROSS and/or MRS. GARY

   R. GROSS, at 740 Allendale Road, Key Biscayne, Dade County, Florida in violation of 489.127(1)(F), Florida Statutes.

   
   

4. Respondent entered a plea of nolo contendere on June 11, 1990. The court found Respondent guilty of the charge against him. Adjudication was withheld, and Respondent was sentenced to serve 60 days in the county jail.

   Court costs were assessed against Respondent in the amount of $423. Respondent was placed on probation and allowed to serve 100 hours of community service in lieu of 60 days in the county jail. 4/ Respondent never served time in the county jail.

   
   

5. The judgment of the County Court and the court's denial of sworn motions to dismiss filed by Respondent were appealed by Respondent. 5/ Respondent timely filed separate Notices of Appeal on June 25, 1990. The appeals have not been decided and are pending before the Circuit Court of the Eleventh Judicial Circuit In and For Dade County, Florida. 6/

   
   

6. Respondent acted as a contractor in the execution

   of work designed by an architect. Respondent supervised the erection, enlargement, and alteration of a single family residence owned by Mr. and Mrs. Gross and located at 740 Allendale Road, Key Biscayne, Dade County, Florida.

   Mr. and Mrs. Gross obtained the necessary permits with the county and were listed as the contractor as owner-builder. Architectural plans for the work supervised by Respondent were provided by Philip Ostendorf. Mr. Ostendorf is a duly registered and certified architect in the State of Florida. Respondent arranged for most of the subcontractors, although one subcontractor was provided by Mr. and Mrs. Gross. All of the work was performed in accordance with the architectural plans. Respondent never ". . . honestly believed that he was violating a law."

   
   

7. The plea of nolo contendere was entered by Respondent in County Court as a plea of convenience. Respondent always maintained his innocence and filed several sworn motions to dismiss the charges against him. Respondent's appeal includes the judgment against him and the denial of his motions to dismiss.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

9. The burden of proof is on Petitioner to show by clear and convincing evidence that Respondent committed the acts

   alleged in the Administrative Complaint and that the penalties requested by Petitioner should be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

10. Petitioner failed to show by clear and convincing evidence that Respondent violated either Sections 475.25(1)(f) or (n), Florida Statutes. As a general proposition, a licensee may be disciplined for violating Section 475.25(1)(f) upon a finding of guilt, regardless of adjudication. Section 475.25(1)(f) expressly provides that a plea of nolo contendere shall be considered a conviction for purposes of that section. Similar language in Section 458.331(1)(c), Florida Statutes, has been construed to mean that a plea of nolo contendere creates only a presumption that there has been an adjudication of guilt. Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985). 7/ See also, Kinney v. Department of State, Division of Licensing, 501 So.2d 129 (Fla. 5th DCA 1987). 8/

    
    

11. Respondent presented evidence sufficient to rebut the presumption created by Respondent's plea of nolo contendere. Although Respondent acted as a contractor in the execution of work designed by an architect, Respondent was expressly exempt from the licensing requirements generally applicable to contractors.

12. Respondent was expressly exempt from the licensing requirements applicable to contractors by virtue of being exempt from the licensing requirements applicable to architects. Section 489.103(11), Florida Statutes, expressly provides that the licensing requirements for contractors do not apply to ". . . any person exempted by the law regulating architects . . . ." The law regulating architects is set forth in relevant part in Section 481.229. Section 481.229(1) provides that no person shall be required to qualify as an architect to ". . . supervise the erection, enlargement, or alteration of . . . " any single family residence regardless of cost. Section 481.229(2) provides that "Nothing contained in this part shall be construed to prevent . . . any person from acting as a contractor in the execution of work designed by an architect." (emphasis added) Respondent was exempt from the licensing requirements for contractors under both Sections 481.229(1) or (2).

    
    

13. Even if Respondent was not exempt pursuant to Section 489.103(11), Florida Statutes, Respondent honestly believed that his interpretation of Sections 481.229 and 489.103 was a reasonable and accurate interpretation. Respondent honestly believed that he was not in violation of Florida law. Respondent's interpretation of the terms of the applicable statutes is based upon their common and ordinary meaning. The statutory terms interpreted by Respondent are clear and unambiguous.

    
    

14. Respondent has never been "confined" to a the county jail or other institution within the meaning of Section 475.25(1)(n). Petitioner admitted this fact in its Proposed Recommended Order, and proposed that this charge be dropped.

    
    

15. The circumstances surrounding the alleged crime and the reasons for entering the nolo contendere plea show that Respondent did not commit the crime for which he was charged. The plea was entered as a plea of convenience to appeal the legal issue decided in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent should be found not guilty of the allegations

in the Administrative Complaint.

DONE and ENTERED this 29th day of June, 1991, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 1st day of July, 1991.

ENDNOTES

1/ All statutory references are to Florida Statutes (1989) as amended by Florida Statutes (Supp. 1990) unless provided otherwise.

2/ Petitioner's Exhibit 1 is a certified copy of Respondent's licensure file. Exhibit 2 is a copy of the Information filed against Respondent in the County Court for Dade County, Florida, Case No. 89-89550. Exhibit 3 is a copy of the Bench Docket in Case No. 89-89550 showing the disposition of the Arraignment, Judgment, Sentence and Order. Exhibit 4 is a copy of the Commitment Order sentencing Respondent to 60 days in the county jail. Exhibit 5 is a copy of the Advocate Program Inc. Probation Order.

3/ Respondent's Exhibit 1 is a copy of Respondent's Bachelor of Architecture Degree from Ohio State University. Exhibit 2 is a copy of Title 47 of the Ohio Revised Code pertaining to the regulation of occupations and professions in Ohio. Respondent's 3 is a copy of a subpoena duces tecum issued by Petitioner to Respondent to produce contracts specified in the subpoena. Exhibits 4-10 are copies of various documents that are relevant and material to the issue of whether Respondent actually committed the offenses for which he was charged in county court. Those documents are relevant and material to this proceeding for the sole purpose of mitigating the recommended disciplinary action, if any.

Exhibits 11 and 12 are copies of separate Notices of Appeal of the judgment in the county court case. Respondent's 13 is a receipt for payment of the filing fee imposed for filing the notices of appeal. Respondent's 14 is a Motion to Consolidate the separate appeals. Respondent's 15 is a copy of Respondent's initial brief in the appeal.

4/ The terms of the probation required Respondent to enter into a mutual release of a civil suit between Respondent and Mr. and Mrs. Gary Gross and required Respondent to remove a lien that had been filed against the Gross residence for approximately 21,000 that allegedly had not been paid to Respondent.

5/ Respondent appealed Case Nos. 89-89550 and 89-87129. The record does not disclose the substance of the latter case number.

6/ The appeals have been assigned Case Nos. 90-193 AC and 90-277 AC.

7/ Compare the language in Sec. 475.25(1)(f), Fla. Stat., providing that "Any plea of nolo contendere shall be considered a conviction . . ." with Sec.

458.331(1)(c) providing that "Any plea of nolo contendere shall be considered a conviction "

8/ In Kinney, Sec. 493.319(1)(j), Fla. Stat., did not have the language pertaining to a plea of nolo contendere but contained the phrase ". . .

regardless of adjudication." Compare McNair v. Criminal Justice Standards And Training Commission, 518 So.2d 390 (Fla. 1st DCA 1987) (in which the statutory language did not contain a provision that a plea of nolo contendere was conclusive evidence of the commission of wrongdoing).

APPENDIX TO RECOMMENDED ORDER

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph

number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

5 and 6 Rejected as irrelevant and immaterial

Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

part as irrelevant and immaterial

COPIES FURNISHED:

Darlene F. Keller, Director Division of Real Estate Department of Professional

Regulation

400 West Robinson Street

P.O. Box 1900 Orlando, FL 32801

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

James H. Gillis, Esquire Senior Attorney

Department of Professional Regulation - Legal Section

Division of Real Estate Hurston Building North Tower

400 West Robinson Street Suite N-308

P.O. Box 1900

Orlando, Florida 32802-1900

Manuel Gonzalez, Jr., Esquire Manuel Gonzalez, Jr., P.A.

1531 Northwest 13th Court Miami, Florida 33325

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE

Petitioner

vs. DOAH CASE NO.: 91-0347

ELMER J. SON

Respondent

/

FINAL ORDER

On September 16, 1991, the Florida Real Estate Commission heard this case to issue a Final Order.

Hearing Officer Daniel Manry of the Division of Administrative Hearings presided over a formal hearing on April 11, 1991. On June 29, 1991, he issued a Recommended Order, a copy of which is attached hereto as Exhibit A and made a part hereof.

Petitioner filed Exceptions to the Hearing Officer's Recommended Order, a copy of said Exceptions is attached hereto as Exhibit B and made a part hereof.

After hearing arguments of counsel and upon a complete review of the record, the Commission rejects the Hearing Officer's Recommended Order.

Specifically, the Commission rejects the Hearing Officer's finding of fact number six and seven and accepts the Petitioner's Exceptions.

The Commission further rejects the Hearing Officer's conclusions of law number two and three and accepts the Petitioner's Exceptions.

The Commission further rejects the Hearing Officer's conclusions of law number five and six. The Commission finds the Hearing Officer to be in error in the conclusion that a plea of nolo contendere is a plea of convenience. Rather, the Commission concludes that the Respondent's plea of "nolo contendere" in county court is a plea to a crime. Therefore, the Commission cites this conclusion and the Petitioner's Exceptions as justification to find the Respondent guilty of having been convicted of a crime which directly relates to the activities of a real estate licensee as proscribed in s.475.25(1)(f), Florida Statutes (1987) as charged in Count I of the Administrative Complaint.

Therefore, for the reasons cited above, the Florida Real Estate Commission ORDERS that the license of Elmer J. Son be suspended for a period of five (5) years.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s.120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 16th day of September 1991 in Fort Lauderdale, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Manuel Gonzalez, Jr., Esq., 1531 Northwest 13th Street, Miami, FL 33125; to Hearing Officer Daniel Manry, the Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and to James Gillis, Esq., DPR, Post Office Box 1900, Orlando, FL 32802, this 2nd day of October, 1991.

Director

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(Second) AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE,

Petitioner,

CASE NO.: 0169917

vs. DOAH CASE NO.: 91-0347

DCA CASE NO.: 91-2610

ELMER J. SON,

Respondent.

/

FINAL ORDER

On January 19, 1993, the Florida Real Estate Commission heard this case to issue a Final Order as a result of a Mandate from the District Court of Appeal of Florida, Third District.

The District Court issued the opinion that the Commission erred in rejecting the Hearing Officer's Conclusions of Law and in applying a standard contrary to that announced in Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985).

After completely reviewing the record and being otherwise fully advised, the Florida Real Estate Commission ORDERS that the Final Order issued on September 16, 1991 be vacated and the Administrative Complaint be dismissed.

DONE AND ORDERED this 19th day of January, 1993 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Stephen T. Maher, Esquire, 1500 Miami Center, 201 South Biscayne Blvd., Miami, Florida 33131; to Hearing Officer Daniel Manry, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399- 1550; and to James Gillis, Esquire, DPR, Post Office Box 1900, Orlando, Florida 32802, this 5th day of February, 1993.

Director

Docket for Case No: 91-000347

Orders for Case No: 91-000347