STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-4233

)

EDWIN COSTA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 8, 1985, in Ocala Florida.

APPEARANCES

For Petitioner: Arthur R. Shell, Jr., Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Jeffrey J. Fitos, Esquire

One East Silver Springs Boulevard Ocala, Florida 32670

BACKGROUND

By administrative complaint filed on October 8, 1984, petitioner, Department of Professional Regulation, Division of Real Estate, has charged that respondent Edwin Costa, a licensed real estate salesman, had violated Subsections 475.25(1)(b) and (f), Florida Statutes, by pleading nolo contendere to one count of bookmaking on June 27; 1984.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by petitioner on December 2, 1984, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated January 18, 1985, the final hearing was scheduled for April 8, 1985 in Ocala, Florida.

At final hearing petitioner presented the testimony of William V. Ferguson, Jr. and Frank Aliota and offered petitioner's exhibits 1 and 2. Both were received in evidence. Respondent presented the testimony of Marvin Pierce, Georgia Berty, Lloyd Henderson, James Priest, Robert Brewster, Wayne Dukes, William Taylor, Steven Hegenbart and Alan Curry. He also offered respondent's exhibit 1 which was received in evidence.

The transcript of hearing was filed on May 14, 1985. Proposed findings of fact and conclusions of law were filed by respondent on June 4, 1985. None were filed by petitioner. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

At issue herein is whether respondent's license as a real estate salesman should be disciplined for the alleged violations set forth in the administrative complaint.

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Edwin Costa held real estate salesman license number 0017520 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent currently uses his license at a real estate firm located in Ocala, Florida.

   
   

2. On March 1, 1983, respondent was arrested on various charges relating to bookmaking. On June 27, 1984, respondent pled nolo contendere to one count of bookmaking (gambling), a third degree felony. Adjudication was withheld and Costa was placed on 18 months probation and fined $10,000.

   
   

3. After successfully serving all conditions of his probation, and paying the fine, respondent's probation was terminated on March 25, 1985.

   
   

4. Respondent has a number of successful business endeavors in Ocala, Florida. Despite his conviction, a cross-section of businessmen testified they would continue to do business with Costa, and had complete trust and confidence with him. His creditworthiness is still considered excellent by a local bank, and Costa has secured a substantial performance bond since his conviction. His reputation in the community is one of being a moral and honest person, and former clientele would not hesitate to use his services as a realtor.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

6. By pleading guilty to one charge of bookmaking (gambling), Costa is charged with "fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealings by trick scheme or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b)" (Count I), and of being "guilty of crime involving moral turpitude in violation of Subsection 475.25(1)(f)" (Count II).

   
   

7. As to Count I, Costa's gambling transaction can hardly be considered a "business transaction" within the meaning of the law. For the sake of argument, even if the act of gambling could be considered a "business transaction," it has not been shown that Costa acted in a dishonest manner while doing so. Accordingly Count I of the administrative complaint should be dismissed.

   
   

8. In essence, Count II raises the issue of whether bookmaking or gambling is a crime involving moral turpitude within the meaning of Subsection 475.25(1)(f), Florida Statutes. Petitioner has cited no agency precedent or judicial decision which support its position. Nonetheless, research by the

   undersigned has disclosed that the identical question was raised in Carp v. Fla. Real Estate Commission, 211 So. 2d 240 (Fla. 3rd DCA 1968), writ discharged 219 So. 2d 427 (Fla. 1969). There the Court held that "a registered real estate broker who has been convicted of bookmaking in Florida, has been guilty of a crime against the laws of this state involving moral turpitude." Carp, 211 So. 2d at 241-242. Accordingly, it is concluded that Costa is likewise guilty of a crime involving moral turpitude.

   
   

9. Petitioner has not suggested a penalty to be imposed upon respondent. However, given respondent's heretofore unblemished record, his continued creditworthiness and honest and moral dealings in both the real estate profession and other business endeavors, a reprimand is appropriate.

Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that respondent be found guilty as charged in Count II of the

administrative complaint and be given a public reprimand. The remaining charge in Count I should be DISMISSED.

DONE and ORDERED this 5th day of June, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 5th day of June, 1985.

COPIES FURNISHED:

Arthur R. Shell, Jr., Esquire

P. O. Box 1900 Orlando, Florida 32802

Jeffrey J. Fitos, Esquire

One East Silver Springs Blvd. Ocala, Florida 32670

Salvatore Carpino, Esquire

130 N. Monroe St. Tallahassee, Florida 32301

Docket for Case No: 84-004233

Orders for Case No: 84-004233