STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF REAL )

ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1335

)

DANIEL OLDFATHER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 24, 1982, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was initiated by an Administrative Complaint filed by the Board of Real Estate against the Respondent, Daniel Oldfather, charging that Respondent had been found guilty of the offense of criminal trespass contrary to Section 475.25(1)(f) , Florida Statutes (1979).

APPEARANCES

For Petitioner: Robert F. Jordan, Esquire

Post Office Box 14723

Fort Lauderdale, Florida 33302

For Respondent: James Curran, Esquire

200 South East Sixth Street, Suite 301 Fort Lauderdale, Florida 33301

Prior to the taking of testimony, Counsel for Respondent moved to dismiss the Administrative Complaint on the basis of court records, introduction of which was stipulated to by the Board, showing that the court withheld adjudication and placed Respondent on probation. Counsel for the Board concurred in the argument of Counsel for Respondent that the facts did not support the allegations of the Administrative Complaint based upon the decisions of the appellate courts in Rifkin v. Florida Real Estate Commission, 345 So.2d 349; Holland v. Florida Real Estate Commission, 352 So.2d 914; and Pearl v.

Florida Real Estate Commission, 394 So.2d 189. This position was reaffirmed by the parties in their proposed recommended orders, which have been read and considered, and which form the basis for the following Findings of Fact and Conclusions of Law. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Respondent is a licensed real estate broker and salesman.

   
   

2. In proceedings on January 9, 1981, in the Circuit Court, 17th Judicial Circuit in Case No. 80-8846 CF, and in the absence of the Respondent, Respondent's Counsel first indicated to the judge that he was entering a plea of no contest for the Respondent but changed that plea to one of guilty of misdemeanor trespass (Section 810.08) on the basis of the entry of an adjudication withheld.

   
   

3. The court noted the Respondent's authorization of his Counsel to enter the plea.

   
   

4. The court withheld adjudication and placed the Respondent on probation for six months, and assessed as a special condition of the probation $150 in court costs and restitution in the amount of $100.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Board has jurisdiction over its licensees pursuant to Section 475.25, Florida Statutes (1979). Section 475.25(1)(f), Florida Statutes (1979), provides:

   
   

   1. The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administrative fine not to exceed

      $1,000 for each count or separate offense, or may issue a reprimand, if it finds

      that the licensee or applicant has:

      (f) Been found guilty, regardless

      of whether adjudication was withheld, of a crime against the laws of this state or any other state of the United States, which crime directly relates to the

      activities of a licensed broker or sales- man or involves moral turpitude or fraudulent or dishonest dealing. 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;

      
      

6. Counsel for all parties were agreed that misdemeanor trespass is not a crime of moral turpitude. There is no record from which a determination could be made that the Respondent's conduct involved moral turpitude or was related directly to the activities of a broker.

   
   

7. Misdemeanors do not per se involve moral turpitude. In the absence of evidence which would show an involvement with the activities of a broker or moral turpitude, there is no proof of violation of Section 475.25(1)(f), Florida Statutes (1979).

RECOMMENDATION

The Board has not demonstrated a violation of Section 475.25(1)(f), Florida Statutes, by the Respondent. Therefore, the charges should be dismissed, and no disciplinary action should be taken against Respondent based upon the allegations contained in the Administrative Complaint.

DONE and ORDERED this day 4th of June, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1982.

COPIES FURNISHED:

Robert F. Jordan, Esquire Post Office Box 14723

Fort Lauderdale, Florida 33302

James Curran, Esquire

200 South East Sixth Street, Suite 301 Fort Lauderdale, Florida 33301

C. B. Stafford, Executive Director Board of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-001335

Orders for Case No: 81-001335