Judges: D. R. ALEXANDER
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 11, 1981
Summary: Charge that realtor violated statute not sustained.
81-2098STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2098
)
LINDA N. PHILLIPS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above captioned case before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on September 16, 1981, in St. Augustine, Florida.
APPEARANCES
For Petitioner: James H. Gillis, Esquire
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Brent D. Shore, Esquire
1916 Atlantic Boulevard
Jacksonville, Florida 32207 BACKGROUND
By Administrative Complaint dated July 28, 1981, Petitioner, Department of Professional Regulation, Board of Real Estate, charged Respondent, Linda N. Phillips, with having violated Subsections 475.25(1)(b) and (1)(f), Florida Statutes, for which disciplinary action should be taken against her real estate salesman license. In summary form it is charged that Respondent, while employed in 1980 as secretary to Tekton Builders, Inc., issued five worthless checks in violation of Section 832.05, Florida Statutes; that an information was filed by the State Attorney of the Seventh Judicial Circuit in and for St. Johns County against Respondent charging her with five counts of violating Section 832.05, supra; that Respondent subsequently pled guilty to Count I of the information and the remaining charges were nolle prosequi by the state; and that by reason of the foregoing Respondent is guilty of a crime which directly relates to the activities of a real estate salesman or involves fraudulent or dishonest dealing in violation of Subsection 475.25(1)(f), supra, and is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in any business transaction in violation of Subsection 475.25(1)(b), supra.
Respondent disputed the allegations of fact in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The matter was transferred by Petitioner to the Division of Administrative Hearings on August 20, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated August 28, 1981, the matter was set for final hearing on September 16, 1981, in St. Augustine, Florida.
At the final hearing, Petitioner presented the testimony of Robert K. Mathis and offered Petitioner's Exhibits 1-10, each of which was received into evidence. Respondent testified on her own behalf and presented the testimony of Terry W. Pacetti.
The transcript of hearing was filed on September 23, 1981. Proposed findings of fact and conclusions of law were filed by the Petitioner on October 5, 1981, and have been considered by the undersigned in the preparation of this order. Proposed findings of fact not included in this order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.
The issue herein is whether Respondent's real estate salesman license should be revoked or suspended, or whether other disciplinary action should be taken for the alleged violations set forth in the Administrative Complaint.
Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT
Respondent, Linda N. Phillips, was issued real estate salesman license number 0349813 in November, 1980, by Petitioner, Department of Professional Regulation, Board of Real Estate.
Between July and September, 1980, Respondent was employed as corporate secretary by Tekton Builders, Inc., a general contracting firm located in St. Augustine, Florida. Respondent's husband served as president of Tekton. In her position as secretary, Phillips was authorized to issue checks on the corporate bank account.
Between July 11, 1980, and September 11, 1980, Respondent issued five checks on behalf of Tekton to Howmet Aluminum Corporation in the amounts of
$1,484.53, $2,118.64, $318.44, $423.11 and $174.38. All were returned for insufficient funds. After the checks were redeposited by Howmet a second time, and again failed to clear, Howmet turned the matter over to the State Attorney of the Seventh Judicial Circuit in and for St. Johns County. The State Attorney filed an information on January 30, 1981, charging Respondent with five counts of issuing worthless checks in violation of Section 832.05, Florida Statutes.
Respondent was arrested on or about March 3, 1981, on charges of issuing worthless checks. On May 11, 1981, she entered a plea of guilty to Count I of the information and the remaining Counts were nolle prosequi by the State Attorney. At the time of the hearing Respondent had not yet been sentenced by the circuit court.
Respondent freely admitted that she had written the checks, had been arrested on five counts of issuing worthless checks, and had pled guilty to one of the charges. However, she wrote the checks believing that sufficient funds would be in the account when the checks were presented for payment and did not intend to defraud Howmet.
Respondent has been employed as a real estate salesman far the last four months by Terry Pacetti Investments, a real estate firm in St. Augustine, Florida. Prior to that she was employed by another realtor in St. Augustine for approximately 6 or 7 months. Her present employer is satisfied with her work, trusts her completely, and will continue to employ her in the future.
Other than the bad check charges, there is no evidence of any other arrests or convictions, or other events that might reflect adversely upon Respondent. Phillips wishes to continue in her present endeavor, and contends that it would be unfair to now penalize her for transgressions that occurred prior to her obtaining a real estate license.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statutes.
Subsection 475.25(1), Florida Statutes, enumerates the grounds upon which a licensee may be disciplined by Petitioner. As is pertinent here, disciplinary action may be taken if the licensee has:
(1)(b) Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in this state...
(1)(f) Been found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this state. . which crime directly relates to the activities of a licensed broker or salesman or involves fraudulent or dishonest dealing.
The parties agree that Phillips wrote five worthless checks in the summer of 1980 and ultimately pled guilty to one count of violating Section 832.05, Florida Statutes 1/. Violation of this statute constitutes a felony of the third degree. Subsection 832.05(2)(b), Florida Statutes. Moreover, the crime clearly involves fraudulent or dishonest dealing within the meaning of that term.
Respondent contends that notwithstanding her plea of guilty, she has not been "found guilty" of a crime within the meaning of the law since her plea had not been accepted by the circuit court at the time of the hearing. Petitioner acknowledges in its proposed recommended order that "a plea of guilty, accepted and entered by a court is a conviction or the equivalent of a conviction." But here there has been no acceptance of the plea of guilty by the court. Before Respondent's plea is accepted, the court must determine that she made it voluntarily with the understanding of its consequences and that there is a factual basis for the same. Rule 3.172(a), Rules of Criminal Procedure. Moreover, no plea offer is binding until it is formally accepted by the trial judge after making all such inquiries, advisements and determinations required by law. Rule 3.172, Rules of Criminal Procedure. There being no formal acceptance of the plea at this time, and a concomitant finding of guilt by the court, Respondent cannot be "found guilty" of a crime within the meaning of Subsection 475.25(1)(f), supra, and Count I of the complaint must be dismissed.
It is next charged that Respondent violated Subsection 475.25(1)(b), supra, by committing fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in this state. Admittedly, a registered real estate salesman may be disciplined for dishonest conduct of business affairs for his or her own account, Sellars v. Florida Real Estate Commission, 380 So.2d 1052, 1054 (Fla. 1st DCA 1979), and the worthless checks need not have been issued as a result of a real estate transaction. McKnight v. Florida Real Estate Commission, 202 So.2d 199, 200 (Fla. 3rd DCA 1967). But Respondent did not hold a real estate license when the transactions herein occurred, and she cannot now be subjected to disciplinary action for the dishonest conduct of her business affairs that occurred prior to her registration as a salesman. Accordingly, the charge in Count II of the Administrative Complaint must be dismissed.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the charges against Respondent, Linda N. Phillips, be
DISMISSED.
DONE and ENTERED this 16th day of October, 1981, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 16th day of October, 1981.
ENDNOTE
1/ Subsection 832.05(2)(a), provides in part that "[i]t shall be unlawful for any person...to draw, make, utter, issue or deliver to another any check on any bank for the payment of money...knowing at the time of the drawing, making, uttering, issuing or delivery of such check...that the maker...thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same on presentation;..."
COPIES FURNISHED:
James H. Gillis, Esquire
130 North Monroe Street Tallahassee, Florida 32301
Brent D. Shore, Esquire 1916 Atlantic Boulevard
Jacksonville, Florida 32207
Docket for Case No: 81-002098
Orders for Case No: 81-002098
