STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) CORNELIUS REAGAN, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1569

)

LEONARD H. BALKAN, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in the above-captioned case, after due notice to the parties, on January 15, 1976, at Miami, Florida, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Lewis B. Guttmann, III

Staff Counsel For Respondent: None

ISSUE PRESENTED

Whether Respondent's License No. 0003558 as a real estate salesman should be suspended, revoked, or the licensee otherwise disciplined for violation of Section 475.25(1)(e), Florida Statutes.

Petitioner served a copy of its Administrative Complaint, Explanation of Rights, and Election of Rights upon the Respondent at the last address he had registered with the Commission, i.e., 6800 W. 16th Avenue, Hialeah, Florida 33014, by registered mail on July 31, 1975. Respondent executed the "Election of Rights" form in which he requested a hearing, on August 19, 1975, and returned it to Petitioner. On December 5, 1975, Petitioner mailed a copy of Notice of Hearing to the Respondent by registered mail to the same address. It was returned by the U. S. Post Office to Petitioner with the notation "Moved, Left No Address" (Exhibit 1). Accordingly, it was considered that Petitioner had complied with applicable requirements concerning notice and, the Respondent not being present at the time of hearing, the hearing was conducted as an uncontested proceeding.

FINDINGS OF FACT

1. Respondent received his registration as a real estate salesman on June 18, 1973, and has been continuously registered with Petitioner since that date (Exhibit 2).

2. An Information filed by the State Attorney of the Eleventh Judicial Circuit of Florida, Number 73-3060, charged Respondent with nine counts of violating Section 832.05(3), Florida Statutes, by nine worthless checks in the amount of $50.00 each which were unlawfully drawn, made, uttered, issued or delivered to Winn Dixie Stores, Inc., during the period December 27, 1972 to January 8, 1973. A similar Information, Number 73-2663, was filed with respect to four checks to the Grand Union Company during the period October 18, 1972 through October 24, 1972 in the same amounts (Exhibits 3, 5).

   
   

3. On September 13, 1973, Respondent pleaded guilty to the charges filed against him in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, and an Order Withholding Adjudication was issued in Case No. 73-3060, finding the Respondent guilty based upon the entry of a guilty plea to the charge of unlawfully obtaining services, goods, wares, or other things of value by means of a worthless check or draft in the amount of $50.00 (nine counts) and withholding adjudication of guilt. On the same date, the same court issued another Order Withholding Adjudication of guilt in Case No. 73-2663 for the four fifty dollar checks involved therein (ExhibitS 4, 6).

   
   

   CONCLUSIONS OF LAW

   
   

4. Petitioner seeks to revoke or suspend Respondent's license or otherwise discipline him under the authority contained in Section 475.25(1)(e), F. S. by reason of his guilt of a crime involving dishonest dealings, to wit: Section 832.05(3), F. S.

   
   

5. Petitioner has not alleged a specific basis for revocation of Respondent's registration and, accordingly, revocation will not be considered as a possible sanction in this case. The statutory provisions above-cited state in pertinent part as follow:

   
   

   "475.25 Grounds for revocation or suspension

   
   

   1. The registration of a registrant may be suspended for a period not exceeding two years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:

      (e) Been guilty of a crime against the laws of this state or any other state or of the United States, involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissrble in evidence under the laws of the state, shall be admissible as prima facie evidence of such guilt; or . . ."

      
      

      "832.05 Knowingly making, issuing, etc., worthless checks, drafts; obtaining property in return for worthless checks, etc.; penalty; duty of drawee; evidence

      1. Obtaining property in return for worthless checks, etc.; penalty

         1. It shall be unlawful for any person first

            or corporatidn to obtain any services, goods, wares or other things of value by means of a check, draft or

            other written order upon any bank, person, firm or corporation, knowing at the time of the making, drawing, uttering, issuing or delivering of

            said check or draft that the maker thereof

            has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation, provided however that no crime may be charged in respect to the

            giving of any such check or draft or other written order where the payee knows or has been expressly notified or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to insure payment thereof.

         2. Violation of the provisions of this subsection shall, if the check, draft or other written order be for an amount less than fifty dollars or its equivalent, constitute a misdemeanor of the first degree, punishable as provided in s. 775.082 or

      s. 775.083. Violation of the provisions of this subsection shall, if the check, draft or other written order be in the amount of fifty dollars, or its equivo- lant, or more, constitute a felony of the third degree, punishable as provided in s. 775.083,or s. 775.084."

      
      

6. It is clear from the evidence presented that Respondent was found guilty of a crime against the laws of Florida involving dishonest dealing with respect to worthless checks in violation of Section 832.05(3). It is unnecessary that such crime, in order to constitute "dishonest dealing" involve a real estate transaction in order to fall within the terms of Section 475.25(1)(e). McKnight vs. Florida Real Estate Commission, 202 So. 2nd 199 (2nd DCA, 1967). The only remaining question is whether or not a finding of guilty by the Court upon an accused's plea of guilty, but where adjudication of guilt is withheld, is sufficient in itself to establish that Respondent has "been guilty of a crime against the laws of this state".

   
   

7. Section 475.25(1)(e) provides that a certified record of a conviction is prima facie evidence of such guilt. It is considered that a certified record of a finding of guilty by the Court upon a plea of guilty, although adjudication of guilt is withheld, and thus where there has been no conviction, is likewise admissible as prima facie evidence of "guilt" in an administrative proceeding, assuming that the crime in question constitutes "dishonest dealings." Accordingly, it is concluded that grounds for suspension exist under Section 475.25(1)(e)

   
   

8. In view of the serious nature of Respondent's misconduct, and in the absence of any evidence in mitigation, suspension of his registration for the maximum period authorized is warranted.

RECOMMENDATION

That the registration of Leonard H. Balkan as a real estate salesman be suspended for a period of two years.

DONE and ENTERED this 3rd day of February, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Leonard H. Balkan Louis B. Guttmann, III, Esquire

6800 West 16th Avenue 2699 Lee Road Hialeah, Florida 33014 Winter Park, Florida

Docket for Case No: 75-001569

Orders for Case No: 75-001569