STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) Case No. 98-2931

)

RONALD THOMAS SPANN, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in the above-styled case by the Division of Administrative Hearings, before Daniel M. Kilbride, Administrative Law Judge, on January 12, 1999, by video conference between Tallahassee and Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Ghunise Coaxum, Esquire

Division of Real Estate Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900

For Respondent: James H. Gillis, Esquire

James H. Gillis & Associates, P.A. 8424 Pamlico Street

Orlando, Florida 32817-1514 STATEMENT OF THE ISSUE

Whether Respondent's real estate license should be disciplined by the Florida Real Estate Commission based upon the

charge that the Respondent is guilty of having his license to

practice law previously disciplined by the Florida Supreme Court, in violation of Section 475.25(1)(5), Florida Statutes (1997).

PRELIMINARY STATEMENT

On January 22, 1998, a single-count Administrative Complaint was filed by the Florida Division of Real Estate of the Department of Business and Professional Regulation (Petitioner) against the Respondent's real estate broker's license.

Respondent requested a formal hearing.

A formal hearing was held on January 12, 1999, by video teleconference. At the hearing, Petitioner offered the testimony of no witnesses but did offer two exhibits which were received in evidence: Petitioner's Exhibit No. 1--A certificate of licensure of the Respondent as a real estate broker; and, Petitioner's Exhibit No. 2--A certified copy of the opinion by the Florida Supreme Court adopting the Referee's Report and subsequently imposing discipline of the Respondent by disbarment for a period of five years and the imposition of costs.

Respondent presented no witnesses and offered no other evidence. The transcript of the hearing was filed on February 3, 1999. The parties requested twenty days, after the filing of the transcript, in which to file proposed orders. Each party timely filed proposed recommended orders. Each of the parties'

proposals and arguments has been given careful consideration in the preparation of this order.

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes; Chapters 120, 455 and 475, Florida Statutes; and, the rules promulgated pursuant thereto.

2. Respondent, Ronald Thomas Spann, is and was at all times material to this matter a licensed Florida real estate broker, issued License No. 0399792 in accordance with Chapter 475, Florida Statutes. The last license as a broker was issued at Post Office Box 1799, Ft. Lauderdale, Florida 33302.

3. On or about July 18, 1996, the Florida Supreme Court entered an order to disbar Respondent for a period of five years, for violation of numerous provisions of the Rules Regulating the Florida Bar.

4. There were no allegations or evidence to show that the Respondent either committed an act related to a real estate transaction or is guilty of a substantive violation of any of the statutes or rules which govern the practice of real estate brokering in the State of Florida or in any other jurisdiction.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has

   jurisdiction over the parties and the subject matter pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

6. The Petitioner's authority to prosecute administrative complaints is derived from Chapter 475, Florida Statutes.

7. Revocation of license proceedings are penal in nature, State, ex rel Vining v. Florida Real Estate Commission, 281

   So. 2d 487 (Fla. 1973), and must be construed strictly in favor of the one against whom the penalty would be imposed. Munch v. Department of Professional Regulation, Division of Real Estate, 592 So. 2d 1136 (Fla. 1st DCA 1992).

8. The Petitioner bears the burden of proving, by clear and convincing evidence, that the acts alleged in the administrative complaint occurred, as well as the reasonableness of the penalty to be imposed. Ferris v. Turlington, 510 So. 2d

   292 (Fla. 1987); Department of Banking and Finance v. Osborne Stein and Company, 670 So. 2d 932 (Fla. 1996).

9. Section 475.25(1)(s), Florida Statutes (1997), as it pertains to the alleged facts in this matter, reads, in pertinent part:

   The Commission may place a licensee on probation; may suspend a license, registration, or permit 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 has had a registration suspended, revoked or otherwise acted against in any jurisdiction. The record of the disciplinary action 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 disciplinary action.

   
   

10. The Division of Administrative Hearings ("DOAH") has recognized action from a state bar to fall within the parameters of discipline pursuant to Section 475.25(1)(s), Florida Statutes. In Dean Alan Burton v. FREC (DOAH Case No. 96-2634), an administrative law judge ruled that resignation from a state bar to avoid being disbarred, suspended, or otherwise disciplined is tantamount to having a registration "otherwise acted against" within the meaning of Section 475.25(1)(s), Florida Statutes. In FDBPR v. Washington Moises Quinones (DOAH Case No. 98-3545), an administrative law judge ruled that a certified record of an emergency suspension of Respondent's bar license from the Florida Supreme Court is sufficient to establish clear and convincing evidence that Respondent is guilty of having had a registration suspended, revoked, or otherwise acted against in any jurisdiction in violation of Section 475.25(1)(s), Florida Statutes.

11. In FDBPR v. Arthur Haller (FDBPR Case No. 98-80575), at an informal hearing with no facts in dispute, the Florida Real Estate Commission ("FREC") found that Respondent's suspension from the Florida Bar violated Section 475.25(1)(s), Florida Statutes.

12. The Florida Real Estate Commission has interpreted a violation of Section 475.25(1)(s), Florida Statutes, to include

    discipline by the Florida Bar. Governmental agencies acting by legislative mandate are given administrative authority to carry out the mandate and their interpretation of relevant statutes is given deference by the courts. Erfman v. Department of Professional Regulation, 577 So. 2d 710 (Fla. 5th DCA 1991), citing PW Ventures, Inc. v. Nichols, 533 So. 2d 281 (Fla 1988).

13. In the instant case, the Florida Supreme Court acted against Respondent's Florida bar license after a formal hearing was conducted.

14. Respondent argues that Petitioner's attempt to discipline his real estate broker's license, which is based solely upon the revocation of his license to practice law in this state, constitutes a violation of the double jeopardy clause of the Federal and Florida Constitutions. Respondent's arguments are preserved as this Administrative Law Judge does not have jurisdiction to determine ultimate constitutional issues. However, for purposes to determine whether license discipline is appropriate, double jeopardy does not attach to this proceeding.

15. Although a proceeding to suspend or revoke a license is considered penal in nature, State ex rel Vining v. Florida Real Estate Commission, supra, this principle does not resolve whether the goal of the penalty prescribed is punitive or remedial.

16. Section 475.001, Florida Statutes, indicates that one of the purposes of the statute is to assure the minimal competence of real estate practitioners in order to protect the

    public from potential economic loss.

    
    

17. Florida courts have concluded that license revocation suspension or other discipline serves the purpose of protecting the public from unfit (in this case) real estate brokers rather than merely punishing the individual license holder. Borrego v. Agency for Health Care Administration, 675 So. 2d 666 (Fla. 1st DCA 1996); Cf. State v. Bowling, 712 So. 2d 798 (Fla 2d DCA 1998). Federal law is not contrary. Hudson v. United States,

    U.S. , 118 S.Ct. 488 (1997).

    
    

18. Petitioner has proven by clear and convincing evidence that Respondent is guilty of a violation of Section 475.25(1)(s), Florida Statutes, in that his registration was suspended, revoked, or otherwise acted against in any jurisdiction.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, and the argument of counsel, it is

RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Section 475.25(1)(s), Florida Statutes (1997), as charged in the Administrative Complaint and that the Respondent be placed on probation for a period of two years under such terms and conditions as the Commission deems appropriate, including charging for the costs of prosecuting this matter.

DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999.

COPIES FURNISHED:

Ghunise Coaxum, Esquire Division of Real Estate Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900

James H. Gillis, Esquire

James H. Gillis & Associates, P.A. 8424 Pamlico Street

Orlando, Florida 32817-1514

James Kimbler, Acting Division Director Division of Real Estate

Department of Business and Professional Regulation

Post Office Box 1900 Orlando, Florida 32802-1900

William Woodyard, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-002931

Orders for Case No: 98-002931