Judges: P. MICHAEL RUFF
Agency: Department of Business and Professional Regulation
Latest Update: Jan. 22, 1981
Summary: Dismiss charges of misrepresentation, fraud and guilt of crimes of moral turpitude. There was not enough evidence.
80-1721.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )
)
Petitioner, )
)
vs. ) CASE NO. 80-1721
) P. D. 16187
ARCHIE STRUHL, )
)
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before P. MICHAEL RUFF, Hearing Officer with the Division of Administrative Hearings on December 9, 1980 in Miami, Florida.
APPEARANCES
For Petitioner: Salvatore A. Carpino, Esquire
Assistant General Counsel
Department of Professional Regulation Board of Real Estate
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Julian R. Benjamin, Esquire
Executive Suite, DuPont Plaza Center
300 Biscayne Boulevard Way Miami, Florida 33131
By Administrative Complaint filed September 22, 1980, the Department of Professional Regulation, Board of Real Estate, Petitioner, seeks to revoke or suspend the license of real estate licensee Archie Struhl, or otherwise discipline that licensee (license no. 0085087). The Petitioner alleges, in essence, that the Respondent, as President of Guardian Mortgage and Investment Corporation, solicited and obtained or, via agents and employees, solicited and obtained from Morris Goldberg and Rose Camp Goldberg a total sum of $9,000.00 upon the promises and representations of the Respondent that the money was secured by a first mortgage, and that payments would be made monthly with interest thereon. It is alleged that on or about October, 1978 the Respondent defaulted in making the subject payments and ultimately paid 3,501.00 in settlement of resulting civil litigation. The subject monies were allegedly not actually secured by a first mortgage and that therefore the Respondent is charged with misrepresentation and dishonest dealing in violation of subsection 475.25(1)(a) Florida Statutes (1977) as amended or readopted as Section 475.25(1)(b) Florida Statutes (1979). In Count II of the Administrative Complaint it is charged that the Respondent pled guilty to four counts of fraud and larceny in Case No. 77-4457A in the Circuit Court in and for Dade County and
therefore, as a result of that plea, the Respondent has been guilty of a crime involving fraudulent or dishonest dealing in violation of Section 475.25(1)(e), Florida Statutes (1977) "as amended or readopted as Section 475.25(1)(b) Florida Statutes (1979)". The last statute cited in the Administrative Complaint is apparently a Scrivener's error because Section 475.25(1)(e) Florida Statutes (1977) supporting that charge was amended or readopted as Section 475.25(I)(f) Florida Statutes (1979). The point is that in Count II of the Administrative Complaint the gravamen of the charge is that the Respondent has committed a crime of moral turpitude as evidenced by the guilty plea in the above-cited criminal case.
The Petitioner was unable to have a witness present in support of the charges alleged in Count I of the complaint involving misrepresentation and dishonest dealing in violation of those subsections of Section 475.25 Florida Statutes and therefore voluntarily dismissed Count I of the Complaint. During the course of the hearing the Petitioner elected to proceed under Section 475.25(1)(a) Florida Statues, (1977) (now (1)(b), which was in effect at the time of the transactions upon which the charges are based, January, 1979. In essence, the Petitioner seeks to establish a violation of Section 475.25(1)(a) Florida Statutes (1977) by introducing evidence of the guilty plea as proof of the underlying facts supportive of a violation of that subsection and the allegations of Count II. The only truly contested issue is whether the guilty plea alone may be employed to establish the operative facts which will establish a violation of Section 475.25(1)(a) Florida Statutes (1977).
The Petitioner presented Exhibit 1 consisting of the State's Attorney information in Case No. 77-4457A in the Circuit Court in and for Dade County, as well as the order withholding adjudication of guilt and referring to the guilty plea in that case dated January 15, 1979, and the order of that date granting probation and fixing the terms of probation. The Respondent presented one witness.
FINDINGS OF FACT
The Respondent, on or about January 15, 1979 pled guilty to four counts of grand larceny in the Circuit Court in and for Dade County, Case No. 77-4457A. Count II of the instant Administrative Complaint apparently was based upon the transaction acts alleged in the Information, (Exhibit 1) . The Petitioner voluntarily dismissed Count I of the Administrative Complaint.
In support of the allegations in Count II, the Petitioner presented Exhibit 1 consisting of the State Attorney's Information, the Order withholding adjudication in that criminal case, and the Order granting probation. The Petitioner contends that the fact of the plea of guilty to the larceny charges in Circuit Court is sufficient to prove the allegations of misrepresentation, dishonest dealing, and the numerous other acts proscribed by subsection 475.25(1)(a), Florida Statutes (1977) as amended. The Respondent's plea of guilty to the criminal charges was entered into in the Circuit Court as a result of negotiations with the State Attorney whereby the Respondent was assured that adjudication would be withheld, he would be placed on probation, and no felony conviction would appear on the Respondent's criminal record. The negotiations reached fruition in the order of the Circuit Judge dated January 15, 1979 allowing that result.
The Petitioner's exhibit 1 does not contain the guilty plea itself, although it is referred to in the judge's order. The State Attorney's Information contained in that exhibit, to which the guilty plea was directed,
merely recites the statutorily derived language necessary to make out charges of larceny, but does not refer to the Goldbergs as victims, mentions no specific amounts of money, makes no mention of a purported mortgager-mortgagee relationship, nor does it relate the charges to a real estate transaction in any way. No other evidence in support of the alleged violations of Section 475.25(1)(a) Florida Statutes (1977) was adduced.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.
Section 475.25(1)(e) Florida Statutes, (1977) or as amended, Section 475.25(1)(f)(1979) provides in pertinent part that it shall be a ground for revocation, suspension or other penalty if a licensee has been convicted of a crime involving fraudulent or dishonest dealing or moral turpitude.
Thus a plea of guilt to such a crime of moral turpitude is appropriately used in a situation like the case at bar only to establish a violation of this subsection of Chapter 475. That is not possible in this case since the crime to which the Respondent pled guilty, and the order by the Circuit Judge withholding adjudication of guilt, occurred January 15, 1979. In a situation involving the withholding of adjudication of guilt, such a plea could not be used at that time, to suspend or revoke the Respondent's real estate license since he was never actually adjudicated guilty. See Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 2nd DCA 1977) and Rifkin v. Florida Real Estate Commission, 345 So.2d 349 (Fla. 4th DCA 1977). The entire transaction and resulting criminal proceeding underlying this case occurred before the July 1, 1979 effective date of the amendment to Section 475.25(1)(e) Florida Statutes whereby the Legislature elected to make it a ground for a licensee's suspension, revocation or reprimand upon a bare finding of guilt of a crime involving moral turpitude, fraudulent or dishonest dealing, regardless of whether adjudication was withheld by the court. The statute, as amended, cannot, of course, be applied in an ex post facto manner to this Respondent, and therefore the Holland and Rifkin cases are controlling. Inasmuch as the Respondent was never actually adjudged guilty of the crime of larceny, the guilt of a crime of moral turpitude necessary to be established in order for revocation, suspension or reprimand to occur has not been shown.
The State Attorney's Information, upon which the guilty plea and the judge's order, are predicated, as determined above, contains no specific factual allegations which could link the conduct charged in the information with the specific alleged real estate transaction, alleged victims or, in other words to any of the factual allegations in the Administrative Complaint (except the fact of the plea of guilt of the subject crime). Thus, if the guilty plea could be considered an admission of all the factual allegations of the Information, none of these scant admitted facts would constitute proof of any of the specific, operative facts supportive of a charge of fraud, concealment, misrepresentation, breach of trust or any other of the multitudinous acts or forms of conduct proscribed by Section 475.25(1)(a) as amended, under which the Petitioner is attempting to proceed. There is simply no proof in the record of who the parties to the alleged transaction were, what, if any, amounts of money were exchanged, what, if any, promises or representations of mortgage security were made and unfulfilled, nor any other conduct by the Respondent within the ambit of that proscribed by the above statute. In the absence of a witness or other evidence on the Petitioner's behalf, the conclusion is inescapable that the allegations of the Administrative Complaint are without evidentiary support.
RECOMMENDATION
Having considered the evidence in the record, the foregoing Findings of Fact and Conclusions of Law, and arguments of counsel, it is therefore RECOMMENDED that the Respondent be found not guilty and that the Adiainistrative Complaint filed in this cause be dismissed, and Case No. 80-1721 be closed.
DONE and ENTERED this 22nd day of January, 1981, in Tallahassee, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1981.
COPIES FURNISHED:
Salvatore A. Carpino, Esquire Assistant General Counsel Department of Professional
Regulation
Board of Real Estate
130 North Monroe Street Tallahassee, Florida 32301
Julian R. Benjamin, Esquire Executive Suite
DuPont Plaza Center
300 Biscayne Boulevard Way Miami, Florida 33131
Docket for Case No: 80-001721
Orders for Case No: 80-001721
| Issue Date |
Document |
Summary |
|
Jan. 22, 1981 |
Recommended Order
|
Dismiss charges of misrepresentation, fraud and guilt of crimes of moral turpitude. There was not enough evidence.
|
