STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE No. 92-1144

)

CHARLES MATHEW HAIR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on April 2, 1992 in Tampa, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

DPR-Division of Real Estate

P.O. Box 1900 Orlando, FL 33802

For Respondent: Howard J. Shifke, Esquire

701 N. Franklin Street Tampa, FL 33602

STATEMENT OF THE ISSUES

Whether or not Respondent's Florida Real Estate license should be disciplined because Respondent is guilty of and was found guilty of crimes which involve moral turpitude or fraudulent or dishonest dealing for which he was confined in a state prison in violation of Subsections 475.25(1)(f) and (n), Florida Statutes.

PRELIMINARY STATEMENT

By an administrative complaint filed January 27, 1992, Petitioner, Department of Professional Regulation, Division of Real Estate, alleges that the Respondent violated Subsections 475.25(1), (f) and (n), Florida Statutes.

Specifically, Petitioner alleges that on October 5, 1989, Respondent pled nolo contendere to misdemeanor charges of prostitution and taking a minor in a vehicle with malevolent intent. Respondent was adjudicated guilty of both offenses and was sentenced to 30 days in jail for the sex offense.

Additionally, Petitioner alleges that Respondent, on March 11, 1991 entered a plea of nolo contendere to two counts of petty theft and was adjudicated guilty on both counts. 1/ Respondent disputed the charges and requested a formal hearing and the matter was noticed for hearing and heard as scheduled on April

2, 1992. At the hearing, Petitioner introduced exhibits 1 through 4 which were offered and received in evidence at the hearing. Respondent testified on his behalf.

Based on my observation of Respondent and his demeanor while testifying and the entire record compiled herein, the following relevant facts are found.

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints in particular Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes and rules promulgated pursuant thereto.

   
   

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 No. 0463021 in accordance with Chapter 475, Florida Statutes.

   
   

3. On October 5, 1989, in Hillsborough County Court, Criminal Division, State of Florida, Respondent entered a plea of nolo contendere to the misdemeanors of prostitution and taking a minor in a vehicle with a malevolent intent, a local ordinance punishable as a misdemeanor. The Respondent was found guilty and sentenced to thirty days imprisonment and six months probation.

   
   

4. On March 11, 1991 in the Hillsborough County Court, Criminal Division, State of Florida, Respondent entered a plea of nolo contendere to two counts of petty theft. Respondent was found guilty of both counts and was placed on probation for six months to run consecutively on each count.

   
   

5. Steven Pearce, Petitioner's investigator, spoke to Respondent about the nature of the charges alleged in the administrative complaint. Investigator Pearce made a series of calls to Respondent and during one of these calls, a discussion ensued relating to the complaint allegations filed against Respondent. During the second call which Investigator Pearce had with Respondent on June 25, 1991, a discussion was had regarding the petit theft charges and a series of other criminal charges which were filed against him.

   
   

6. At the time of Respondent's written response to Investigator Pearce on June 12, 1991, he was incarcerated in Hillsborough County Jail for charges which he then contended that he was innocent. Specifically, he maintained in that letter as well as during the hearing that he was pulled into matters for which his son was involved and that he was in no manner responsible for the actions of his son.

   
   

7. Respondent spent approximately forty-five days in the Hillsborough County Jail during 1989 at which time he made a no contest plea on October 5, 1989 because it would have taken approximately 21 more days for him to go to trial and he had, at that time, spent the maximum amount of time allowable for the charge for which he was being held. Prior thereto, Respondent had been incarcerated in the Sumter County Jail on a first degree murder charge where he remained for approximately 14 months and was thereafter released to Hillsborough County Jail. During his incarceration, Respondent's trial had been postponed approximately nine times and he repeatedly maintains that all of the allegations which he was being charged for dealt with activity engaged in by his son and "unbeknownst to" Respondent.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes.

   
   

9. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. The Petitioner's authority is derived from Chapter 475, Florida Statutes.

    
    

11. Section 475.25, Florida Statutes, authorizes the Petitioner to take disciplinary action against any licensee who is found to have violated Subsections 475.25(1)(f) and (n), Florida Statutes.

    
    

12. Subsection 475.25(1)(f), Florida Statutes proscribes the commission of crimes involving moral turpitude.

    
    

13. Petitioner has the burden of proof as to all counts in the administrative complaint. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1979). Revocation of license proceedings are penal in nature. The burden of proof required in this matter is relevant and material findings of fact supported by clear and convincing evidence. See Hel Helfetz d/b/a Key West Inn v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985). Petitioner has introduced clear and convincing establishing that Respondent has been found guilty of crimes which involve moral turpitude and was confined in a state prison within the purview of Subsections 475.25(1)(f) and (n), Florida Statutes. Significantly, Respondent did not offer any evidence that he was not convicted for the crimes alleged in the administrative complaint.

    
    

14. The offense of taking a minor in a vehicle with malevolent intent involves inherent baseness or depravity in the relations owned by man to society. Sexual crimes, or offenses which pertain thereto, such as prostitution with a minor, or which are of a similar nature such as contributing to the delinquency of a minor or all crimes which involve moral turpitude.

    
    

15. Additionally, the two counts of theft of which Respondent was convicted, are also crimes involving moral turpitude because they are acts contrary to honesty. See State ex rel. Tullidge v. Hollingsworth, 146 So.2d 666 (Fla. 1933). Finally, pleas of nolo contendere shall be considered a conviction for purposes of violations of Subsection 475.25(1)(f), Florida Statutes. Here the record consists of a certified conviction which was authenticated in such form as is admissible and as such is prima facie evidence of such guilt.

    Despite Respondent's contention that he was not guilty of any criminal misconduct, he failed to introduce any credible evidence which would warrant looking beyond the record of the convictions for which he entered nolo contendere pleas. Significantly, the court in its adjudication of the charges did not withhold adjudication of guilt as to the offenses for which Respondent was charged and which he entered pleas. At the time, Respondent was represented by counsel who was capable of defending him in the criminal actions. Therefore, Respondent's bare assertions that he entered his plea of nolo contendere simply as a means of convenience and to quickly be released from incarceration is incredible. Consideration was given to the reasons and the circumstances surrounding Respondent's pleas of nolo contendere as testified by him at the hearing and they are found to be lacking in merit.

16. The complaint allegations in Count 3 thereof references that Respondent was confined in a state prison. It is undisputed that Respondent was in prison while a licensee in a county jail after being adjudicated a sexual criminal. The term prison is a generic one comprised in places maintained by public authority for the detention of those confined on the legal process after having been duly convicted and centers. Fla. Juris. 2d, Prison and Prisoners, Section 2. When the term "state prison" is used, it refers to custody by the Department of Corrections. See, Subsection 944.08, Florida Statutes. County prisoners are to be kept and worked under rules and regulations prescribed by the Department of Corrections. Subsection 951.01, Florida Statutes. Respondent's attempt to make a distinction between state prison and a county jail is an effort to make a distinction without a difference especially in view of the fact that a violation of Section 475.25(1)(n), Florida Statutes encompasses both state prisons and county jails equally. Here, the Respondent was charged under Subsection 475.25(1)(n), Florida Statutes. Concluding, Respondent was incarcerated after a conviction in a facility wherein he was without liberty to leave at will.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner enter a final order finding Respondent guilty of having engaged in proscribed conduct within the purview of Subsections 475.25(1)(f) and (n), Florida Statutes as alleged in the administrative complaint. It is further recommended that Respondent's license as a real estate salesperson in Florida, license No. 0463021 be revoked.

DONE and ENTERED this 2nd day of June, 1992, in Tallahassee, Florida.

JAMES E. BRADWELL,

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1992.

ENDNOTES

1/ At the hearing, Petitioner amended the references in paragraphs 4 and 5 of the administrative complaint to change the word felonies to misdemeanors and deleted Counts 2 and 5 from the administrative complaint. The amendment was granted.

Copies furnished to:

Steven W. Johnson, Esquire DPR-Division of Real Estate

P.O. Box 1900 Orlando, FL 33802

Howard J. Shifke, Esquire 701 N. Franklin Street Tampa, FL 33602

Darlene F. Keller, Division Director Division of Real Estate

400 West Robinson Street

P.O. Box 1900

Orlando, FL 32802-1900

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

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. 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.

Docket for Case No: 92-001144

Orders for Case No: 92-001144