STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2010

)

GARTH L. GOOD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on February 19, 1981, in Sanibel Island, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: S. Ralph Fetner, Jr., Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: James L. Goetz, Esquire

ROBERTS, WATSON, BRIGHT, GOETZ and HARTMAN

Post Office Drawer X

Fort Myers, Florida 33902

The issue for determination in this case is whether the Respondent's license to practice real estate as a salesman should be suspended or revoked due to his conviction in federal court of one count of income tax evasion.

FINDINGS OF FACT

1. Prior to the hearing, counsel for the parties orally stipulated that the allegations set forth in the administrative complaint filed against the Respondent on October 1, 1980, were true and correct.

   
   

2. The purpose of the hearing was to present testimony explaining the circumstances surrounding the Respondent's guilty plea to one count of income tax evasion and attesting to the good character and reputation of the Respondent within the South Florida community where he and his family presently reside.

   
   

3. In 1975, the Respondent was part owner and treasurer of Blanchard Associates, a small company located in Portland, Maine, which dealt in fire apparatus and supplies. In the spring of 1975, the company was audited by the

   Internal Revenue Service (IRS) and a number of discrepancies were found during the course of a continuing three year audit. One of the discrepancies involved the failure to report as income the sale of two used fire trucks worth approximately $4,700.00 each.

   
   

4. The audit resulted in an eight count information being filed on January 17, 1979, in the Southern District of Maine charging both the Respondent and his partner, Shirley T. Hamel, with two counts and the Corporation, Blanchard Associates, with four counts of income tax evasion.

   
   

5. On January 19, 1979, the Respondent pled guilty to one count of income tax evasion for the year 1973 and was placed on probation for two years and ordered to pay a fine of $5,000.00 and any interest and penalties found to be due. Additionally, a 30-day jail sentence was imposed.

   
   

6. The Respondent voluntarily advised the Florida Real Estate Commission and his broker of his conviction, which action resulted in the filing of the administrative complaint.

   
   

7. No administrative complaint or criminal indictment or information has been filed against the Respondent regarding any misconduct occurring as a real estate salesman.

   
   

8. The Respondent enjoys an excellent reputation in the Ft. Myers area and has been a successful salesman since moving to Florida in January, 1977.

   
   

9. While residing in Portland, the Respondent was involved in numerous civic activities including serving on the South Portland School Board, the Portland City Council and the Maine School District Commission.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

    
    

11. Sections 475.25(1)(a) and (e), Florida Statutes (1978), provide as follows:

    
    

    1. The registration of a registrant may be suspended for a period not exceeding 10 years, or until com- pliance with a lawful order imposed in the final order of suspension,

       or both, upon a finding of facts showing that the registrant has:

       1. Been guilty of fraud, misrep- resentation, concealment, false promises, false pretenses, dis- honest dealing, trick, scheme

          or device, culpable negligence, or breach of trust in any business transaction, in this state or any other state, nation, or territory; has vio- lated a duty imposed upon him by law or by the terms of a listing contract, written,

          oral, express or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; 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. It shall he immaterial to the guilt of the registrant that the victim, or intended victim, of the misconduct has sustained no damage or loss or the damage or loss has been settled and paid, after discovery of the misconduct, or whether such victim, or intended victim, thereof, was a customer or a person in confidential relation with the registrant, or was an

          identified member of the general public; or,

          * * *

          (e) Been guilty of a crime against the laws of this state or any other state or of the United states, in- volving moral turpitude, or fraudulent or dishonest dealing;

          and the record of a conviction certified 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 . . . .

          
          

12. The crime for which the Respondent plead guilty, making false entries on an income tax return, related to the activities of a Maine corporation of which the Respondent was an officer. The charge did not involve any real estate transactions occurring in either Maine or Florida.

    
    

13. Testimony explaining the circumstances surrounding the conviction and the Respondent's subsequent behavior both before and after the conviction were admitted solely for purposes of mitigation and not to question the factual basis underlying the guilty plea.

    
    

14. In Florida, state policy is to promote the rehabilitation of convicted felons by prohibiting state and local agencies from refusing to employ such felons unless the prior felony directly related to the position sought. Section 112.011(1)(a), Florida Statutes. Similarly, a felon whose civil rights have been restored is not disqualified for licensure in any trade, occupation, profession or business unless the felony directly relates to the specific occupation for which the license is sought. Section 112.011(1)(b), Florida Statutes.

15. A conviction for income tax evasion in certain circumstances could clearly be directly related to an individual's practice as a real estate salesman and could constitute a crime involving moral turpitude or fraudulent or dishonest dealing, thereby disqualifying an individual convicted of such a crime from entering the profession. However, the facts as established in this case fail to demonstrate that the Respondent's crime warrants the imposition by the state of any further punitive measures. The likelihood that the Respondent will engage in any fraudulent or dishonest activities in the future is essentially nil. The Respondent has paid for his crime and deserves the opportunity to continue rebuilding his life.

Therefore, based on the foregoing, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Real Estate, enter a final order dismissing the administrative complaint filed against the Respondent, Garth L. Good.

DONE and ORDERED this 13th day of April, 1981, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1981.

COPIES FURNISHED:

S. Ralph Fetner, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

James L. Goetz, Esquire ROBERTS, WATSON, BRIGHT,

GOETZ & HARTMAN

Post Office Drawer X

Fort Myers, Florida 33902

Docket for Case No: 80-002010

Orders for Case No: 80-002010