vs. ) CASE NO. 80-514
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 15 April 1980 at Orlando, Florida.
For Petitioner: Thomas V. Infantino, Esquire and
For Respondent: Salvatore A. Carpino, Esquire
By Request for Hearing dated July 13, 1979, Susan Long Bruner, Petitioner, by and through her attorney, requested a hearing to contest the Order dated 27 June 1979 of the Board of Real Estate, Respondent, denying her application for registration as a real estate broker. Four witnesses were called by Petitioner, the parties stipulated that if the fifth witness expected (but who did not appear) were present he would testify as proffered by Petitioner, and two exhibits were admitted into evidence. Respondent presented no evidence.
Petitioner is registered as a real estate salesperson and by application dated 26 March 1979 applied for registration as a real estate broker (Exhibit 1). In item 6 on this application, in response to the question regarding the commission of an offense against municipal or state laws, Petitioner replied she had been "charged with Grand Theft with intent to Fraud - Plead Guilty - adjudication was withheld, 5 years probation given."
Petitioner is current with her parole conditions including $190 per month restitution to the victim, the Pan American Bank. Barring any parole violations, her parole officer would possibly recommend her parole be reduced or terminated 2 1/2 years after it commenced on January 15, 1979. Although her paroled officer has had face-to-face contact with Petitioner only three times
during the eight months she has been Petitioner's parole officer, Petitioner has contacted her by telephone at least monthly as required by the parole conditions and the parole officer would trust Petitioner to handle her money in an escrow account.
Two business associates for whom Petitioner worked as a real estate salesperson consider Petitioner to be a competent real estate salesperson with whom they would trust escrow funds. A casual but long-term acquaintance who has had both social and professional contacts with Petitioner for the past two years has seen nothing to make her believe Petitioner to be untrustworthy.
The absent witness, a member of the Florida Bar whose testimony was stipulated, has used Petitioner as his agent in the sale and purchase of a residence and he was satisfied with her performance. Further, he has never known Petitioner to cheat anyone and believes her reputation in the community to be good.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Section 475.17(1), Florida Statutes, provides in part:
An applicant for licensure who is a natural person shall be 18 years of age, a bona fide resident of the state, honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing. An applicant for an active broker's license or a salesman's license shall be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom he may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license or has been disbarred, or his registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, any nation, possession, or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter, or if the applicant had been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license
under this chapter had the applicant
then been registered, the applicant shall be deemed not to be qualified, unless, because of lapse of time and subsequent
good conduct and reputation, or other reason deemed sufficient, it shall appear to the board that the interest of the public and investors will not likely be endangered by the granting of the registration.
Section 475.25(1), Florida Statutes provides in pertinent part:
The board may deny an application for licensure or renewal . . . if it finds the licensee or applicant has:
(b) Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device . . . or has formed an intent, design or scheme to engage in any such misconduct and has committed an overt act in furtherance of such intent, design or scheme.
(f) Been found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this state . . . which crime . . . involves moral
turpitude or fraudulent or dishonest dealing.
Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 2d DCA 1977) involved disciplinary proceedings by the Real Estate Commission against a broker for violation of Section 475.25(1)(e), Florida Statutes. Section 475.25(1)(f) above quoted is the successor to Section 475.25(1)(e)(1977) which provided for disciplinary action against the registration of a registrant upon finding of facts showing that the registrant has:
Been guilty of a crime against the laws of this state . . . involving moral turpitude, of fraudulent or dishonest dealing . . . .
In Holland the Respondent had pleaded nolo contendere, a finding of guilty was entered and adjudication of guilt was withheld by the Circuit Court in the criminal proceeding.
On Holland's appeal from the disciplinary action by the Real Estate Commission, the Court held that the narrow legal question before it was whether the fact that the Court made a finding that Petitioner was guilty is equivalent to the guilt which is contemplated under Section 475.25(1)(e)(1977), in spite of the fact that an adjudication of guilt was specifically withheld.
After citing the Fourth District Court of Appeals case involving Rifkin v. Florida Real Estate Commission, 345 So.2d 349 (1977) for the conclusion that the suspension of a broker's license could not be ordered under Section 475.25(1)(e) except upon "an actual adjudication of guilt of a court of competent jurisdiction", the Court in Holland, concluded that the plea of nolo contendere could not be considered evidence of guilt and absent an adjudication
of guilt by a court of competent jurisdiction, Holland's license could not be suspended.
In Rifkin, supra, criminal proceedings were never instituted. The evidence of guilt was presented at the administrative hearing and the finding was there made that Respondent was "guilty". This the Court held was an evidentiary finding that could not be made in an administrative proceeding. However, the Court in Rifkin, in obiter dictum, stated:
We noted in passing, Section 475.(1)(a), Florida Statutes, provides ample authority for the Commission to proceed against any license holder for the same acts with proper procedural safeguards.
Section 475.25(1)(a) is the predecessor to the current Section 475.25(1)(b) above quoted.
The instant case differs from both Rifkin and Holland in two significant aspects. First, the statute has been changed to specifically provide that disciplinary action may be taken against a registrant who has been found guilty of specified offenses whether or not adjudication of guilt is withheld. Secondly, this case differs from Holland in that here Petitioner pleaded guilty in the criminal proceedings. This plea, unlike the plea of nolo contendere, is admissible as a statement against interest in a subsequent civil or administrative proceeding.
A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction; and like a verdict of a jury, it is conclusive. Toler v. State, 196 So.2d 1 (Fla. 4th DCA 1967).
Both Holland, supra, and Rifkin, supra, involved suspension of existing registration and here we are concerned only with the denial of a registration. This application can be denied pursuant to either Section 475.17(1), 475.25(1)(b), or 475.25(1)(f).
Pursuant to the qualifications for licensure contained in Section 475.17(1) above quoted, the application for registration may be denied unless the applicant can show herself to be trustworthy and of good character or if the applicant has been guilty of conduct or practices which would have been grounds for revoking or suspending an existing license.
Petitioner was found guilty, following a plea of guilty, of grand theft with intent to defraud and placed on five years' probation. This is an offense involving moral turpitude, as well as fraudulent and dishonest dealing. It is clearly the type of conduct the commission of which was intended to constitute a bar to registration as a real estate broker. The commission of such an offense constitutes a prima facie showing that the perpetrator is not a person who is trustworthy and of good moral character. The evidence submitted by Petitioner to rebut this prima facie showing was inadequate to overcome evidence of such conduct, particularly in view of the relatively short interval of time which has elapsed since Petitioner was released on probation.
From the foregoing it is concluded that Susan Long Bruner has not shown herself to be a trustworthy person of good moral character so as to qualify for registration as a real estate broker. It is therefore
RECOMMENDED that the application for registration of Susan Long Bruner as a real estate broker be denied and her petition dismissed.
ENTERED this 30th day of April, 1980.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Filed with the Clerk of the Division of Administrative Hearings this 30th day of April.
Thomas V. Infantino, Esquire Kenneth Meer, Esquire
P.O. Drawer B
Salvatore A. Carpino, Esquire Department of Professional Regulation 2009 Apalachee Parkway
