STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2909

)

ROBERT E. KAUFMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Hollywood, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter, on January 27, 1982. The Petitioner was represented by Bruce D. Lamb, Esquire. There was no appearance by Respondent.

This case arose on Petitioner's Administrative Complaint charging Respondent with the fraudulent sale of promissory notes (count one), failure to register these notes as securities, and failure to register as a securities salesman (count two). Petitioner seeks to discipline Respondent under Subsections 475.25(1)(b) and 475.25(1)(f) Florida Statutes (F.S.)(1979), on the basis of these charges.

FINDINGS OF FACT

1. Respondent is a licensed real estate salesman. He has held Florida license number 0046313 at all times relevant to these proceedings.

   
   

2. On February 2, 1979, in the Circuit Court of the Fifteenth Judicial Circuit (Florida), Respondent was adjudicated guilty on three counts of failure to register as a securities salesman and three counts of failure to register securities, under Sections 517.03, 517.07, 517.12 and 517.302, F.S. (1973). He was sentenced to five years imprisonment.

   
   

   CONCLUSIONS OF LAW

   
   

3. Section 475.25, F.S. (1979) , provides in part:

   
   

   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 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:

      (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 or any other state, nation, or territory; has violated 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.

      (f) Been found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this state or any other state or of the United States, which crime directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonet 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;

      
      

4. Petitioner presented no evidence in support of count one regarding allegations of fraud in violation of Subsection 475.25(1)(b), F.S. Count one should, therefore, be dismissed.

   
   

5. Petitioner relies on that portion of Subsection 475.25(1)(f), pertaining to conviction of a crime which involves moral turpitude 1/ or fraudulent or dishonest dealing," in support of its second count. The provisions of Chapter 517, F.S. (1973), under which Respondent was convicted require a seller of securities to register as a salesman or dealer with the Department of Banking and Finance, and to register the securities prior to their sale.

   
   

6. Respondent's conviction was necessarily based on his failure to register since these statutes contain no requirement for findings of fraudulent intent, dishonest dealing or other corrupt purpose. 2/ Rather, the crimes at issue are malum prohibitum and not malum in se.

   
   

7. Petitioner cites federal 3/ and California 4/ appellate cases where the distinction between conduct which is inherently wrong-or evil and that which is merely prohibited by law was disregarded. This distinction is maintained in Florida real estate licensing matters, and is therefore applicable here. 5/

   
   

8. Petitioner argues that Respondent's five-year prison sentence demonstrates the serious nature of the offenses, and that it would be anomalous to permit him to retain his real estate license. However, Subsection 475.25(1)(f), F.E., is limited to crimes involving immoral conduct. Such conduct cannot be inferred from the length of the sentence nor can the scope of the statute be expanded to avoid an anomalous situation.

   
   

9. The penal nature of Subsection 475.25(1)(f), F.E., requires that it be accorded the interpretation most favorable to the Respondent. 6/ Accordingly, count two of the Administrative Complaint should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That Petitioner enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 18th day of February, 1982, in Tallahassee, Florida.

R. T. CARPENTER 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 18th day of February, 1982.

ENDNOTES

1/ "A crime involves moral turpitude if it is an act of baseness, vileness, or depravity in the private and social duties that a man owes to his fellow men or to society in general." 14 Fla. Jur.2d, Criminal Law s1.

2/ Merrill Lynch, Prince, Femer & Smith v. Byrne, 320 So.2d 436,440 (Fla. 3rd DCA 1975).

3/ Rudolph v. United States, 6 F.2d 487 (D.C. Cir. 1925). 4/ In Re Hatch, 73 P.2d (Cal. 1937)

5/ Pearl v. Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981).

6/ Rotstein v. D.P.O.R., 397 So.2d 305, 311 (Fla. 1st DCA 1981); Bach v. Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1979).

COPIES FURNISHED:

Bruce D. Lamb, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Paul H. Bass, Esquire Krongold and Bass, P.A.

201 Alhambra Circle, Ninth Floor

Coral Gables, Florida 33134

Docket for Case No: 81-002909

Orders for Case No: 81-002909