STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ) ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0247

)

NICK A. AMORGINOS t/a ) GATOR REALTY OF OCALA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished to the parties by the undersigned on February 28, 1985, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Ocala, Florida on June 19, 1985. The issue for consideration at the hearing was whether Respondent's license as a real estate broker in Florida should be disciplined because of his conviction of bookmaking.

APPEARANCES

For Petitioner: James R. Mitchell, Esq.

Division of Real Estate

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32802

For Respondent: Jeffery J. Fitos, Esq.

1 East Silver Springs Blvd. Ocala, Florida 32670

BACKGROUND INFORMATION

On December 14, 1984, Petitioner filed an Administrative Complaint in this case seeking to discipline Respondent's license as a real estate broker in Florida because of his

conviction of bookmaking in Marion County Circuit Court on June 27, 1984. Respondent submitted an election of rights form in which he denied the allegations contained in the Administrative Complaint and requested a formal hearing. On January 14, 1985, Petitioner forwarded the file to the Director, Division of Administrative Hearings for the appointment of a Hearing Officer.

At the hearing, Petitioner presented Petitioner's Composite Exhibit 1 and Petitioner's Exhibit 3. Requests for Admissions forwarded to and answered by the Respondent were admitted as part of the file. Petitioner called no witnesses. Respondent neither testified in his own behalf nor called witnesses to testify at the hearing. However, with leave of the Hearing Officer and concurrence of the Petitioner, Respondent submitted subsequent to the hearing Respondent's Composite Exhibit A, which consists of a cover letter and 16 sworn affidavits attesting to Respondent's character and business reputation.

Subsequent to the hearing, Petitioner filed a Motion to Strike the affidavits filed by the Respondent on the basis that they were not filed timely and in accord with the instructions of the Hearing Officer. After due consideration, in light of the fact that they were received prior to the deadline for completion of this Recommended Order, the motion was denied and the affidavits received for consideration as indicated.

The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. 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.

FINDINGS OF FACT

1. At all times relative to the issues presented herein, Respondent, Nick A. Amorginos, was a licensed real estate broker in the State of Florida under Florida license number 001406.

   
   

2. On June 27, 1984, he was found guilty in the Circuit Court of Marion County, in case number 83-227-CF-B-Z, based on his plea of nolo contendere of the offense of bookmaking and was thereafter placed on probation for a period of 18 months. As part of the conditions of probation, Respondent was ordered to pay $5,000.00 as investigative costs to the Ocala Police Department Law Enforcement Trust Fund.

3. Notwithstanding his conviction of bookmaking, Respondent has a reputation in and around his community of being fair, honest, and informed in both his personal and business dealings. Such individuals as the Mayor of Tarpon Springs, Florida, the City Manager of Tarpon Springs, the priest of St. Nicholas Greek Orthodox Cathedral in Tarpon Springs, and others who have known him for an extended period of time concur in that analysis. His business associates such as a mortgage broker, a consulting engineer, employees, and those who have retained him to represent them in real estate transactions concur indicating confidence in his professional ability and personal integrity even though they, or some of them, are aware of the charge of which he has been found guilty. Other real estate brokers and professionals in other disciplines such as pharmacy and insurance agree.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

5..Under the provisions of Section 475.25(1)(f), Florida Statutes, the Florida Real Estate Commission is authorized to discipline the license of a licensee if it finds that the 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 the purposes of this paragraph."

1. Petitioner seeks to discipline Respondent's license on the basis that he has violated the above statute by having plead nolo contendere to and been found guilty of bookmaking in Circuit Court.

   
   

2. Under the provisions of Section 849.25(1),Florida Statutes, bookmaking is considered a felony in the third degree. Bookmaking is considered a crime involving moral turpitude when committed by a registered real estate broker. Carp v. Florida

   Real Estate Commission. 211 So. 2d 240 (3d DCA 1968) pet. for cert.disch., 219 So. 2d 427 (Fla. 1969).

   
   

3. Respondent's conviction of bookmaking, being considered a felony and involving moral turpitude, constitutes a violation of Section 475.25(1)(f) even if it is not fraudulent or dishonest dealing.

   
   

4. Respondent, as a real estate broker, holds himself out to the general public as one in whom can be reposed great faith, trust, and responsibility in the conduct of real estate transactions. The public must be able to rely on the integrity, honesty, and trustworthiness of real estate professionals with whom they deal. A conviction of a crime involving moral turpitude is inconsistent with the high standards demanded and reasonably expected of real estate professionals.

   
   

5. Respondent's misconduct here qualifies him for discipline under the terms of the statute cited above. Disciplinary action can include suspension, revocation, or reprimand of the Respondent's license and/or an administrative fine not to exceed $1,000.00. Here, Respondent has not been. shown to be guilty of any offense other than that set out in the Administrative Complaint and there is no evidence of any prior misconduct. Since that is the case and since Respondent's misconduct did not relate directly to the practice of real estate, revocation is not appropriate. In light of the fact that Respondent has already paid $5,000.00 to the Ocala Police Department Law Enforcement Trust Fund, additional fines would appear inappropriate.

RECOMMENDED ACTION

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

RECOMMENDED that Respondent's license as a real estate broker in Florida be suspended for four (4) months and that upon the expiration of the period of suspension, he be placed on probation for a period of one (1) year under such terms and considerations as are prescribed by the Florida Real Estate Commission.

ENTERED this 1st day of August, 1985, at Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 1st day of August, 1985.

COPIES FURNISHED:

James R. Mitchell, Esq. Division of Real Estate

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

Jeffery J. Fitos, Esq.

1 East Silver Springs Boulevard Ocala, Florida 32670

Harold Huff, Executive 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

Salvatore A. Carpino, Esq. General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-000247

Orders for Case No: 85-000247