STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0182

)

CLYDE COURTNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on March 23, 1984, in Chiefland, Florida.

APPEARANCES

For Petitioner: Fred Langford, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Clyde Courtney, pro se

Route 1, Box 1349

Chiefland, Florida 32626

By Administrative Complaint filed December 16, 1983, the Department of Professional Regulation, Division of Real Estate, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Clyde Courtney, Respondent, as a real estate broker-salesman. As grounds there for it is alleged that Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, and breach of trust in a business transaction; and that he has been found guilty of a crime involving moral turpitude.

At the hearing Petitioner presented Respondent's real estate license record and court records of the Circuit Court in and for Levy County in Case 83-70 CF involving Respondent. Respondent testified in his own behalf and presented one other witness who testified to Respondent's character.

FINDINGS OF FACT

1. Respondent has been licensed by the Florida Real Estate Commission for approximately 12 years and currently holds a license as a broker-salesman.

2. Respondent was arrested and charged, with three other men, with various crimes involving stolen property. The information contained 20 counts. With the advice of counsel, Respondent entered into a negotiated plea of nolo contendere of Count V alleging Respondent and Grantham (Respondent's brother-in- law) trafficked in stolen property, to wit: a Hurricane boat and motor. All other charges were dismissed, adjudication of guilt was withheld and Respondent was placed on probation for a period of two years. The other 19 charges in this information generally involved stealing several tractors and other heavy equipment by two of the defendants with Respondent and Grantham initiating, organizing, planning, financing, and supervising the theft and sale of such property.

   
   

3. The negotiated plea which is part of Exhibit 2 states:

   
   

   1. The Defendant and State agree and recommend to the Court an appropriate disposition of the plea [of nolo contendere] is the withholding of adjudication of guilt and the placing of the Defendant on probation for a period of time to be determined by

      the Court.

   2. The remaining charges against Defendant will be dismissed.

      
      

4. Respondent testified that he was not guilty of any offense charged against him but could not afford tie legal fees of $30,000 he was quoted to defend the charges. He pleaded nolo contendere to only one charge knowing he would be placed on probation only.

   
   

5. Respondent has been employed by the telephone company for 27 years and was so employed as a supervisor at the time of his arrest. Respondent's Version of the events preceding his arrest is that a fellow employee of the telephone company sold his boat and was in the market for a replacement. This was generally known by the other employees at the telephone company. Respondent mentioned this fact to his brother-in-law, Grantham, who lives in Crystal River, in case he was aware of a suitable boat for sale. Grantham later told Respondent he knew of a boat for sale and Respondent referred Grantham to the fellow employee and had no further connection with the transaction which apparently resulted in the sale of a stolen boat. Respondent, as a telephone company employee, was allowed free telephone service. Grantham visited Respondent frequently during this period and used Respondent's telephone to make long distance telephone calls. Tapping of this telephone by authorities while being used by Grantham apparently led to evidence linking Grantham to the ring trafficking in stolen property. No evidence was presented regarding the disposition of the charges against the other three defendants.

   
   

6. William Perryman, a licensed real estate broker, has known Respondent for some 12 years and holds Respondent's license. Respondent has a good reputation for truth and veracity in the community, and Perryman would trust Respondent in any business transaction. Perryman does not believe Respondent could have committed the offenses of which he was charged.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

8. Section 475.25(1), Florida Statutes, authorizes the Florida Real Estate Commission to take disciplinary action against a licensee if it finds the licensee guilty of: (b) fraud, misrepresentation, concealment, etc. Here, the only evidence presented to show a violation of this provision was the nolo contendere plea of Respondent to a charge that contains elements of fraud, dishonest dealing, etc. It is hornbook law that a plea of nolo contendere does not constitute an admission of guilt of the charges to which the plea is made. No other evidence was presented to show Respondent committed the offense to which he pleaded nolo contendere. In fact, the only evidence presented was that of Respondent, who denied committing the acts to which he had negotiated a plea. Accordingly, Respondent cannot be found guilty of violation of Section 475.25(1)(b). Cf. Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 2nd DCA 1977).

   
   

9. Section 475.25(1)(f), Florida Statutes, provides in part that disciplinary action may be taken if a licensee:

   
   

   Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph.

   
   

10. The offense to which Respondent pleaded nolo contendere involves fraudulent or dishonest dealing and moral turpitude. Accordingly, Respondent must be found guilty of violation of Section 475.25(1)(f), Florida Statutes.

    
    

11. The purpose of Chapter 475 as stated in 475.001 is "to assure the minimal competence of real estate practitioners in order to protect the public from potential economic loss." Dishonest licensees could subject the public, who deal with those practitioners, to economic loss.

    
    

12. Respondent offered a plausible economic reason for negotiating a plea of nolo contendere rather than go to trial to "clear his name." On the witness stand Respondent presented the indicia of an honest man who was swept into the vortex of a storm while standing well outside the center.

    
    

13. The broker who holds Respondent's license would trust him to handle funds involved in a real estate transaction without fear the public would be subjected to economic loss.

    
    

14. From the foregoing it is concluded that Respondent has not violated Section 475.25(1)(b) and has violated Section 475.25(1)(f), Florida Statutes, as alleged. It is further concluded that he does not constitute a potential source of injury to the public while operating as a real estate broker-salesman. It is

RECOMMENDED that a Final Order be entered finding Clyde Courtney not guilty of violation of Section 475.25(1)(b) Florida Statutes, and guilty of violation of Section 475.25(1)(f) Florida Statutes, and suspend his license for a period of two (2) years. It is further

RECOMMENDED that the suspension be stayed during the pendency of Respondent's probation period and, if the probation period ordered by the Circuit Court is completed without incident by Respondent, that the suspension be terminated and Respondent restored to good standing.

ENTERED this 9th day of April, 1984, at Tallahassee, Florida.

K. N. AYERS 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 9th day of April, 1984.

ENDNOTE

1/ The Petitioner conceded that since commissions due from a broker to a salesman are not required to be maintained in escrow, no violation of Section 475.25(1)(k), Florida Statutes, exists.

COPIES FURNISHED:

Fred Langford, Esquire Department of Professional

Regulation - Legal Post Office Box 1900 Orlando, Florida 32802

Mr. Clyde Courtney Route 1, Box 1349

Chiefland, Florida 32626

Harold Huff, Director Division of Real Estate Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION

Petitioner,

vs. CASE NO. 0034221

DOAH NO. 84-0182

CLYDE COURTNEY

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on June 19, 1984 to issue a Final Order.

Hearing Officer K. N. Ayers of the Division of Administrative Hearings presided over a formal hearing on March 23, 1984. On April 9, 1984 he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact and Conclusions of Law. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

However, as to the Recommendation, after a complete review of the record the Florida Real Estate Commission hereby ORDERS that the recommended stay of the recommended 2-year suspension of Respondent's license during the pendency of Respondent's probation is rejected, and the recommended 2-year suspension accepted. Respondent is required to file a petition for reinstatement with the Florida Real Estate Commission.

This Order shall be effective thirty (30) days from the date of filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 19th day of June 1984 in Orlando, Florida.

Brian J. Ladell, Chairman Florida Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by

U.S. Mail to: Clyde Courtney, Route 1 Box 1349, Chiefland, Florida 32626; to Fred Langford, Attorney for Petitioner, Dept. of Professional Regulation, P O Box 1900, Orlando, Florida 32802; and to Hearing Officer K.N. Ayers, Division of Administrative Hearings 2009 Apalachee Parkway, Tallahassee, Florida 32301, this 6th day of July 1984.

Harold R. Huff, Director

RA:pep

Docket for Case No: 84-000182

Orders for Case No: 84-000182