STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0787

)

EDDIE GARCIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause came on for formal hearing before Michael M. Parrish, duly designated Hearing Officer of the Division of Administrative Hearings, on July 11, 1984, in Miami, Florida.

APPEARANCES

For Petitioner: Fred Langford, Esquire

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

For Respondent: No Appearance.

BACKGROUND

Pursuant to an Administrative Complaint filed on December 13, 19,83, the Petitioner, Department of Professional Regulation, has charged the Respondent, Eddie Garcia, with violating the provisions of Subsections 475.25(1)(b) and (f), Florida Statutes (1983), by reason of the Respondent having, in the course of his duties as a police officer, unlawfully obtained, endeavored to obtain, or appropriated the property of another in violation of Subsections 812.014 (1) and (2)(c), Florida Statutes (1983), and by reason of Respondent having been found guilty of the offense of petit larceny.

This case came on for hearing on July 11, 1984, pursuant to a Notice of Hearing served on both Petitioner and Respondents dated May 23, 1984, which advised the parties of the date, time and place set for the hearing. The Notice of Hearing was not returned by the U.S. Postal Service.

At the time set for the hearing, counsel for the Petitioner was present, but the Respondent was not. The Hearing Officer waited for more than 30 minutes before convening the hearing to allow the Respondent to appear. The Respondent failed to appear. The Petitioner was allowed to put on its prima facie case, at the end of which the Respondent had still not appeared. Thereupon the hearing was adjourned.

During the course of the hearing the Petitioner offered two composite exhibits into evidence, both of which were admitted into evidence. The Petitioner did not call any witnesses. The Petitioner waived it's right to file proposed findings of fact, proposed conclusions of law, or a proposed order, but at the request of the Hearing Officer did file a post-hearing. memorandum addressed to the issue of the appropriate penalty.

ISSUE

The issues to be resolved in this proceeding are whether the Respondent has committed the violations alleged in the Administrative Complaint and, if so, whether any disciplinary action against his licensure status is warranted.

FINDINGS OF FACT

1. Based on the evidence received at the hearing, I make the following findings of fact:

   
   

2. At all times material herein, Respondent was a licensed real estate salesman having been issued license number 00335420.

   
   

3. The last license issued was as a salesman, c/o Ancla Realty, Inc., 292 Aragon, Coral Gables, Florida 33134.

   
   

4. Respondent, on or about January 24, 1983, in Dade County, Florida, did unlawfully obtain or use, or did endeavor to obtain or use the property of another, Steffi Downs or Joann Downs, being a lamp, with the intent to deprive that person of the right to the property or of a benefit therefrom, or to appropriate the property to his own use or to the use of any person not entitled thereto, in violation of Subsection 812.014 (1) and (2)(c), Florida Statutes.

   
   

5. As a result thereof, an information alleging petit theft was filed against the Respondent on March 1, 1983. Respondent entered a plea of nolo contendere to the information and by order of April 22, 1983, Respondent was found guilty of petit theft, adjudication was withheld, Respondent was placed on six months probation and was assessed $100.00 court costs.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Subsection 120.57(1), Florida Statutes (1983).

   
   

7. Subsections 475.25(1)(b) and (f), Florida Statutes 1983), provide as follows in pertinent part:

   
   

   1. The Commission may....suspend a license

      or permit for a period not exceeding 10 years; may revoke a license or permit; may,impose an administrative fine not to exceed $1,000 for each count or separate of fense,; and may issue a reprimand, or any or all of the foregoing,

      if it finds that the license, [or] permittee .

      * * *

      (b) Has 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. . .

      * * *

      (f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which....involves moral turpitude fraudulent

      or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for the purposes of this paragraph.

      
      

8. An essential element to the establishment of a violation of Subsection 475.25(1)(b), Florida Statutes (1983), is proof that the conduct complained of occurred in a "business transaction." The evidence in this case fails to establish that the conduct complained of occurred as part of or in the course of a business transaction. Accordingly, the evidence is insufficient to establish the violation of Subsection 475.25(1)(b), Florida Statutes (1983), charged in Count I of the Administrative Complaint.

   
   

9. However, there is no question that the evidence in this case is sufficient to establish the violation of Subsection 475.25(1)(f) , Florida Statutes (1983), which is charged in Count II of the Administrative Complaint. The evidence clearly establishes Respondent's conviction of the crime of petit theft and it cannot be doubled that petit theft is a crime involving moral turpitude. See, generally, Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981). And the evidence in this case does not contain any of the mitigating factors which were present in Reid v. Florida Real Estate Commission

188 So.2d 846 (Fla. 2d DCA 1966). Accordingly, on the basis of the authorities cited in the Petitioner's post-hearing memorandum, the appropriate penalty in- this case is the revocation of the Respondent's license.

RECOMMENDATION

On the basis of the foregoing Findings of Fact and Conclusions of Law it is Recommended that a Final Order be entered which would:

1. Dismiss Count I of the Administrative Complaint;

   
   

2. Find the Respondent guilty of the violation charged in Count II of the Administrative Complaint; and

   
   

3. Revoke the Respondent's license, without prejudice to his reapplication for licensure upon a showing of rehabilitation.

DONE and ORDERED this 24th day of July, 1984, in Tallahassee, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1984.

COPIES FURNISHED:

Fred Langford, Esquire Department of Professional

Regulation

400 West Robinson Street Orlando, Florida 32801

Mr. Eddie Garcia

1260 N. W. 124th Street North Miami, Florida 33167

Harold Huff, Director Division of Real Estate Department of Professional

Regulation

400 West Robinson Street Orlando Florida 32801

Docket for Case No: 84-000787

Orders for Case No: 84-000787