STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1948

)

SHIRLEY HOLLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

This proceeding was called up for hearing on January 27, 1977 at the Collier County Courthouse, Naples, Florida. The Respondent, Shirley Holland, was charged in an administrative complaint issued by the Florida Real Estate Commission with having entered a plea of "no contest" to a violation of Chapter 817.290, Florida Statutes, which reads:

"Cheating--whoever is convicted of any gross fraud or cheat at common law shall be guilty of a felony of the third degree.

By reason of that plea, the Commission charges that the Respondent is guilty of a crime of moral turpitude, fraud or dishonest dealings in violation of Subsection 475.25(1)(e) Florida Statutes, and therefore, should have his license suspended or revoked. After listening to the testimony and considering the exhibits submitted, the following findings are made.

FINDINGS OF FACT

1. The Respondent, Shirley Holland, a licensed real estate salesman, was convicted of the crime charged in the administrative complaint by entering a plea of nolo contendere in the Dade County Circuit Court, Miami, Florida, on September 30, 1975. Evidence of this plea :as admitted over the objections of counsel for the Respondent and it would be appropriate now to discuss the admissibility of those documents. There is no question that evidence of a plea of "no contest" is inadmissible in a civil proceeding to prove truth of the charge; however, the above proceeding was conducted under the authority of Chapter 120 Florida Statutes. Section 120.58(1), F.S., states:

   
   

   "Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence

   would be admissible in a trial in the courts of Florida."

   Considering that the plea of nolo contendere is tantamount to a plea of guilt and that rules of evidence for an administrative proceeding are somewhat less stringent than those in the courts of this State, it is the opinion of the under signed Hearing Officer that, under the circumstances of this case, evidence of a plea of "no contest" or nolo contendere should be admitted to consider whether the holder of a professional license issued by the State of Florida should be disciplined. Licensing agencies of the State have an obligation to maintain high standards in a licensed occupation and should not be prevented from imposing standards of responsibility through evidence which appears to be unequivocal.

   
   

2. Although the Respondent testified and presented other evidence of his reasons for having plead "no contest" to the charge and to the high reputation he enjoys in the community, such testimony is insufficient to rebut the conviction of the crime.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Respondent, by having pleaded "no contest" to the charge of fraud and having been found guilty thereof, has violated Section 475.25(1)(), Florida Statutes and it is therefore recommended to the Real Estate Commission that the Respondent's real estate license be suspended for a period of six months.

DONE and ORDERED this 24th day of February, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

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

(904) 488-9675

COPIES FURNISHED:

Howard Hadley, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Edward N. Miller, Esquire 665 North Newbridge Road Naples, Florida

Docket for Case No: 76-001948

Orders for Case No: 76-001948