STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Plaintiff, )

)

vs. ) CASE NO. 79-818

) P.D. 3475

ANDREW R. MILLER, )

)

Defendant. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on July 26, 1979 in Pembroke Pines, Florida.

APPEARANCES

For plaintiff: Mark A. Grimes, Esquire

Staff Counsel

Board of Real Estate Post Office Box 1900 Orlando, Florida 32802

For Defendant: Andrew R. Miller

South Florida State Hospital 1000 Southwest 84th Avenue Pembroke Pines, Florida 32035

Amicus Curiae: Stanley L. Seligman, Esquire

125 North 46th Avenue Hollywood , Florida 33021

On or about March 21, 1979 the Florida Real estate Commission, which has since that time by legislative amendment become the Board of Real estate ("the Board"), issued an Administrative Complaint in two counts against Defendant, Andrew R. Miller ("Defendant"). County one of the complaint charged that Defendant had failed to inform The Board in writing within thirty days after pleading no contest to a felony involving moral turpitude, to wit: the crime of criminal attempt as defined in Section 777.04(1), Florida Statutes, and indecent assault upon a female child as contemplated in Section 800.04, Florida Statutes. County two of the Administrative Complaint, as amended by the proof at the final hearing in this cause, charged that Defendant was confined in a state mental institution in violation of Sections 475.25(2), and 475.25(1)(d), Florida Statutes. By letter dated April 2, 1979, Defendant requested a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes. Thereafter, in accordance with the provisions of Section 120.57(1)(b)(3), Florida Statutes, the Board requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the final hearing in this cause. The final

hearing was scheduled for July 26, 1979 by Amended Notice of Hearing dated July 19, 1979.

At the final hearing, the Board called Joanne Mitchell and Dale William Frick as its witnesses. In addition, the Board offered Plaintiff's Exhibits 1 through 4, each of which was received into evidence. Plaintiff's Exhibit 5 was marked for identification purposes only and was not received into evidence. The Defendant testified in his own behalf, and offered no exhibits for inclusion in the record.

FINDINGS OF FACT

1. At all times material hereto the Defendant was a registered real estate broker in the State of Florida, and held License Number 0060094.

   
   

2. On or about December 5, 1978 Defendant pleaded no contest in Case No. 78-2506CF in the Seventeenth Judicial Circuit in and for Broward County, Florida, to the offenses of criminal attempt, as defined in Section 777.04(1), Florida Statutes, and indecent assault upon a female child, within the contemplation of Section 800.04, Florida Statutes. Thereafter, on or about February 9, 1979, the Defendant was committed by Judge James M. Reasbeck to the department of Health and Rehabilitative Services for care, treatment, and rehabilitation as a mentally disordered sex offender in accordance with the provisions of Section 917.19, Florida Statutes. In his order Judge Reasbeck specifically found that the Defendant "... suffers from a non-psychotic mental or emotional disorder, yet is competent and that the Defendant would be likely to commit further sex offenses if permitted to remain at liberty."

   
   

3. Subsequently, on or about April 17, 1979, Defendant was admitted to the Mentally Disordered Sex Offender Program at South Florida State Hospital in Pembroke Pines, Florida. Defendant has remained in the Mentally Disordered Sex Offender Program at South Florida State Hospital since that time.

   
   

4. The Defendant has made admirable efforts, both during his confinement at South Florida State Hospital and, prior to that time, in the Broward County jail to address both his problems with alcohol consumption and with his sexual deviation. The Defendant has been placed in positions of trust and responsibility in both these institutions, and has, apparently, discharged his duties in exemplary fashion. Although the Defendant has made some progress in the Mentally Disordered Sex Offender Program at South Florida State Hospital, he has not, as yet successfully completed that program. The Defendant remains within the jurisdiction of the committing court until such time as he is released from the Mentally Disordered Sex Offender Program and criminal proceedings involving the offenses to which he pleaded no contest have been concluded in the Circuit Court. In short, the Defendant is not free to come and go as he pleases, nor would he be automatically allowed to remain at liberty should he choose not to participate further in the Mentally Disordered Sex Offender Program.

   
   

5. The Defendant did not advise The Board of the fact that he had pleaded no contest to the offenses with which he was charged within thirty days after the entry of his plea.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Sections 120.57(1), 120.60, Florida Statutes.

   
   

7. Section 475.25(1)(j), Florida Statutes, provides that the Board may suspend the registration of a licensee for a period not exceeding ten years upon a finding that the registrant has:

   
   

   Failed to inform the [Board] in writing within thirty days after pleading guilty or nolo contendere to, or being convicted or found guilty of, a felony involving moral turpitude, fraud, or dishonest dealing.

   
   

8. Section 475.25(2) provides in part that the registration of a registrant "... shall be revoked ... if the registrant is confined in any state

   ,,, mental institution ..."

   
   

9. The provisions of Section 475.25(2) quoted above make the revocation of a registration mandatory upon a finding that the registrant is confined in a state mental institution. It is the specific finding of this Recommended Order that the Defendant, Andrew R. Miller, is in fact confined in a state mental institution, and it is further found that the Defendant failed to inform the Board in writing within thirty days after pleading no contest to the offenses of criminal attempt and indecent assault upon a female child, both of which offenses are felonies involving moral turpitude.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That a final order be entered by the State of Florida, Department of Professional Regulation, Board of Real estate, revoking the license of Defendant, Andrew R. Miller.

RECOMMENDED this 25th day of August, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mark A. Grimes, Esquire Staff Attorney

Board of Real Estate Post Office Box 1900 Orlando, Florida 32802

Andrew R. Miller

South Florida State Hospital 1000 S. W. 84th Avenue Pembroke Pines, Florida 32035

Docket for Case No: 79-000818

Orders for Case No: 79-000818