STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-854

)

ROBERT T. SHARKEY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Fort Lauderdale, Florida on August 15, 1977, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: John A. Friedman, Esquire

634 N.E. Third Avenue

Fort Lauderdale, Florida 33304 ISSUE PRESENTED

Respondent's alleged violation of subsection 475.25(1)(e), Florida Statutes.

Petitioner seeks to impose disciplinary action on the respondent under subsection 475.25(1)(e) based on his conviction for criminal offenses in 1975. By his answer to the administrative complaint, respondent admitted his conviction of the offenses. The hearing encompassed solely the presentation of documentary evidence and argument of counsel.

FINDING OF FACT

1. Respondent Robert T. Sharkey is now and was at the times alleged in the administrative complaint a registered real estate broker. His current registration certificate is in the capacity of a broker-salesman.

   
   

2. By an information filed on June 26, 1974, in the County Court of Broward County, Florida, Case Number 74-27637-MM, respondent was charged with conspiracy to commit prostitution in violation of subsections 796.07(2)(b) and 833.05(1), Florida Statutes, and procuring for prostitution in violation of subsection 796.07(2)(b), Florida Statutes. (Exhibit 1)

3. Respondent was found guilty of the offenses charged by jury verdict in Broward County Court and Judgment of Guilt and Placing the Respondent on Probation was ordered April 3, 1975 which provided for a probation period of two years. (Exhibit 2)

   
   

4. The conviction was affirmed on appeal by the Circuit Court of the Seventeenth Judicial Circuit, Broward County Florida, Appeal Number 75-0007AC, except as to sentencing by Order of Affirmance and Remand on February 1, 1977. Respondent's probation period was terminated by order of the County Court on May 31, 1977, wherein it was stated that the respondent had conformed to the conditions of his probation and had conducted himself in a law-abiding manner and had no further need for supervision. (Exhibits 3,6)

   
   

5. Shortly after respondent's conviction, his attorney, by a letter of February 5, 1975, advised him of the requirements for filing an appeal thereof to the Circuit Court of Broward County and also advised him that further appeals could be made from that court if adverse action was taken on the appeal. On March 28, 1977, the attorney advised respondent of the Circuit Court's action on the appeal and stated that "The matter as far as the appeal is concerned is concluded." (Exhibits 4-5)

   
   

   CONCLUSIONS OF LAW

   
   

6. Subsection 475.25(1)(e), Florida Statutes, reads as follows:

   
   

   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 deal- ing; and the record of a conviction certi- fied 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 guilt; or,

1. Respondent's guilt of offenses against the laws of this state was established by a properly authenticated record of conviction. The nature of the offenses clearly involved moral turpitude, and thus petitioner is authorized to take disciplinary action against respondent pursuant to statute.

   
   

2. Respondent contends that he was innocent of the offenses but was foreclosed from further appeals of the conviction by the negligence of his attorney. Such an argument cannot serve to impeach the conviction or otherwise constitute a matter for consideration in this case.

   
   

3. As evidenced by the order terminating respondent's probation, it has been affirmatively shown that respondent has conducted himself in a law-abiding manner during that two-year period. Nevertheless, it is considered that the petitioner is warranted in imposing disciplinary action in the form of

suspension of respondent's certificate of registration for a period of six months.

RECOMMENDATION

That the certificate of registration issued to respondent Robert T. Sharkey be suspended for a period of six months.

DONE and ENTERED this 1st day of September, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

John A. Friedman, Esquire 634 N.E. Third Avenue

Ft. Lauderdale, Florida 33304

================================================================= AGENCY FINAL ORDER

================================================================= FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION,

An agency of the state of Florida,

Petitioner, PROGRESS DOCKET NO. 3196 BROWARD COUNTY

vs. DOAH CASE NO. 77-854

ROBERT T. SHARKEY,

Defendant.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at its Executive Headquarters in Winter Park, Florida, on October 19, 1977.

PRESENT: Maggie S. Lassetter, Chairman Levie D. Smith, Jr., Vice Chairman

NOT PRESENT: Arthur N. Hamel, Member APPEARANCES: Frederick H. Wilsen, Esquire

Attorney for Plaintiff

John A. Friedman, Esquire, Attorney for Defendant

This matter came on for Final Order upon the Hearing Officer's Recommended Order, the Plaintiff's and the Defendant's Exceptions thereto, and upon consideration thereof, together with a review of the complete record and oral argument of the attorneys and statement made by the Defendant in person, and the Commission being fully advised in the premises finds:

1.

According to the records of the Commission, Defendant Robert T. Sharkey is currently the holder of a registration certificate as a real estate broker- salesman in the employ of Roger H. Wagner, 330 North Andrews Avenue, Suite 204, Fort Lauderdale, Florida 33301.

2.

The Plaintiff's Exceptions to the Hearing Officer's Recommended Order are well taken and should be accepted.

3.

The Defendant's Exceptions to the Hearing Officer's Recommended Order are not well taken and should be rejected.

4.

The Hearing Officer's Recommended Order is supported by competent, substantial evidence in the record add should be adopted as the Order of the Commission, except as to penalty.

5. IT IS THEREUPON ORDERED that:

1. the Plaintiff's exceptions to the Hearing Officer's Recommended Order be, and the same are hereby accepted;

   
   

2. The Defendant's Exceptions to the Hearing Officer's Recommended Order be, and the same are hereby, rejected; and

   
   

3. The Hearing Officer's Finding; of Fact, Conclusions of Law and Recommended Order be, and the same are hereby, adopted by the Commission except as to penalty.

6.

The Hearing Officer's Recommended Order to suspend Defendant Robert T. Sharkey's registration for a period of six (6) months be, and the same is hereby, rejected.

7.

IT IS THEREUPON ORDERED that the Defendant, Robert T. Sharkey, be, and he is hereby, found guilty of violating Subsection 475.25(1)(e), Florida Statutes, as charged in the Administrative Complaint, and for said violation, the registration of Defendant Robert T. Sharkey is hereby suspended for a period of twelve (12) months.

8.

IT IS FURTHER ORDERED that on or before the effective date of this Final Order, Defendant Robert T. Sharkey shall surrender his registration certificate to the Commission by return mail.

DONE and ORDERED at Winter Park, Florida, this 21 day of October, 1977.

Maggie S. Lassetter Chairman

Levie D. Smith, Jr. Vice Chairman

I CERTIFY that a copy of the foregoing Final Order was mailed to John A. Friedman, Esquire, Attorney for Defendant, 634 Northeast Third Avenue, Fort Lauderdale, Florida 33304, by United States registered mail this 21 day of October, 1977.

Executive Director

NOTICE TO DEFENDANT:

This Final Order shall become effective on the 21 day of November, 1977.

However, you have a right of review by an appellate court, if you desire.

Docket for Case No: 77-000854

Orders for Case No: 77-000854