STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) DIVISION OF FLORIDA LAND SALES, ) CONDOMINIUMS AND MOBILE HOMES, )

)

Petitioner, )

)

vs. ) Case No. 98-5498

)

ROBERT L. HAMILTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference with witnesses appearing from Fort Lauderdale, Florida, on March 26, 1999, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Scott K. Edmonds

Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Tracy J. Sumner, Esquire

Tracy J. Sumner, P.A. 1330 Thomasville Road

Tallahassee, Florida 32303 STATEMENT OF THE ISSUE

Whether Respondent's license should be revoked as set forth in the Notice of Intent to Revoke License.

PRELIMINARY STATEMENT

This case began on October 28, 1998, when the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Department) issued a Notice of Intent to Revoke License to the Respondent, Robert L. Hamilton. Such notice alleged that Respondent had been convicted of a felony violation. In response, the Respondent maintained he has always complied with the requirements of the Department, did not attempt to hide his criminal past, and has been an exemplary yacht salesman. Further, Respondent requested an administrative hearing regarding the allegations.

The matter was then forwarded to the Division of Administrative Hearings for formal proceedings on December 15, 1998. Thereafter, the case was scheduled for hearing on

March 26, 1999.

On March 4, 1999, the Petitioner filed a Motion for Remand, or in the Alternative, for Summary Final Order which the Respondent opposed. On March 8, 1999, Respondent filed a Motion to Dismiss Notice of Intent to Revoke License which the Petitioner also opposed. Both motions were denied by order entered March 19, 1999.

Prior to hearing, Respondent filed a Motion to Exclude Witness Participation. This motion was denied and the witness was allowed to testify.

At the hearing, the parties presented twelve joint exhibits which were received by stipulation in evidence. Petitioner

presented testimony from the following witnesses: Arthur Holler, a yacht broker with Broward Yacht Sales and president of the Florida Yacht Brokers Association; and Peter Butler, section head of the Department's section regulating yacht salesmen and brokers. Petitioner's Exhibit 1 was admitted into evidence.

Respondent testified in his own behalf and offered testimony from Gerard Coope, the broker for Liberty Yacht Sales; and Katherine Forrester, a Regulatory Specialist I employed by the Department in the licensing section for yacht salesmen and brokers. Respondent's Exhibits 13, and 15 through 19 were also received in evidence.

The Transcript of the proceeding was filed on April 14, 1999. The parties were afforded ten days from the date of filing within which to file their proposed recommended orders.

Respondent's proposal was filed on April 27, 1999, together with a Motion to File Proposed Recommended Order which the Petitioner opposed. By order entered May 3, 1999, Respondent's proposed order was accepted and Petitioner was granted leave until May 14, 1999, to file a response to Respondent's proposal. All Proposed Recommended Orders have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the responsibility of regulating yacht salesmen and brokers. Such authority includes the discipline of yacht salesman as set forth in Chapter 326, Florida Statutes.

2. At all times material to the allegations of this case, Respondent has been licensed as a yacht salesman in the State of Florida.

3. Respondent first applied for licensure in June of 1994. This license request was granted and Respondent was issued a license for the two-year period 1994-1996.

4. In June of 1996, Respondent applied to renew the license. This license request was also granted and Respondent was issued a yacht salesman's license for the period 1996-1998.

5. On or about April 28, 1997, Respondent was convicted of conspiracy to commit wire fraud, a federal violation, and a felony. As a result, Respondent was sentenced and incarcerated.

6. In July of 1998, Respondent applied to the Department to renew the yacht salesman's license. Based upon the information submitted to Petitioner at the time he sought renewal, the Department had no direct information of the felony conviction.

7. In telephone conversations with the Department staff, Respondent did not disclose he had been incarcerated, was living in a halfway house as part of his sentence, and was a convicted felon.

8. In August of 1998, a third party advised the Department that Respondent had the felony conviction. Thereafter, upon such notice, Petitioner took action to seek revocation of Respondent's license.

9. The license renewal for 1998 filed by Respondent was executed on July 7, 1998. Technically, his license expired on

   June 14, 1998, but he was afforded a grace period within which to process the renewal. To this end the Department attempted to accommodate the renewal applicant.

10. On the license renewal card Respondent submitted conflicting answers. To question (3) which read:

    Have you been convicted of a crime, found guilty, or entered a plea of nolo contendere, since initial licensure?

    
    

    Respondent answered "Y." To question (4) which read:

    
    

    Has any judgment or decree of a court been entered against you or is there now pending any case in this or any other state, in which you were charged with any fraudulent or dishonest dealing?

    
    

    Respondent answered "N."

    
    

11. An undated letter from Respondent accompanied the renewal card which referred to a prior correspondence with the Department of June 6, 1996, as the explanation for question (4). As to question (3), the letter stated: "a conviction was made on 4/28/98 in the U.S. District Court Southern Florida."

12. Respondent's answer to question (4) was false. Moreover, the manner in which Respondent answered the two questions did not disclose that Respondent had been convicted of a felony or conspiracy to commit wire fraud.

13. More telling of Respondent's attempt to mislead the Department, however, is his failure to disclose any of the foregoing circumstances during telephone conversations with staff seeking to assist him to renew the license.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

15. The Department bears the burden of proof in this case to establish by clear and convincing evidence the basis for its attempt to revoke Respondent's license. It has met that burden.

16. Section 326.006(2)(f), Florida Statutes, provides:

    
    

    (f) The division may suspend or revoke the license of a broker or salesperson who has:

    1. Procured a license for himself or herself or another by fraud, misrepresentation, falsification, or deceit.

    2. Been found guilty of a felony or a crime of moral turpitude.

    
    

17. When Respondent obtained the renewal license in 1998 he did so by omitting material information regarding his felony criminal conviction. By virtue of his conviction for conspiracy to commit wire fraud, by his failure to reveal the felony conviction, and by his effort to mislead the Department, Respondent has demonstrated he lacks the moral character to be a licensed yacht salesman.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order revoking Respondent's license.

DONE AND ENTERED this 29th day of June, 1999, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 29th day of June, 1999.

COPIES FURNISHED:

Philip Nowick, Director Florida Land Sales, Condos,

Mobile Homes

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Scott K. Edmonds, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Tracy J. Sumner, Esquire Tracy J. Sumner, P.A.

1330 Thomasville Road

Tallahassee, Florida 32303

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: 98-005498

Orders for Case No: 98-005498