STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, ) CASE NO. 85-1761

)

vs. )

)

STEVEN J. SAWYER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this case on October 15, 1985 in Ft.

Lauderdale, Florida

APPEARANCES

For Petitioner: Sue Hartman, Esquire

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

For Respondent: No appearance.

This issue for determination at the final hearing was whether the Respondent's license to practice the real estate brokerage business under the laws of the State of Florida should be revoked.

PROCEDURAL BACKGROUND

The Petitioner filed an Administrative Complaint on March 27, 1985. The Respondent disputed the factual allegations contained in Petitioner's Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1983). This cause came on for final hearing on October 15, 1985. The Respondent was provided with due notice of the

hearing, but failed to attend or send a representative. Petitioner's Exhibits 1-3 were duly offered and admitted into evidence. Neither party submitted post-hearing proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based upon the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:

1. Respondent is now, and has been since April 6, 1981, a licensed real estate broker holding license no. 0077440.

   
   

2. On August 17, 1984, Respondent was convicted in the United States District Court, Southern District of Florida, of the following offenses:

   
   

   1. Two counts of mail fraud;

      
      

   2. Three counts of the use of mail to defraud;

      
      

   3. Four counts of wire fraud;

      
      

   4. Two counts of interstate transportation of stolen property;

      
      

   5. One count of conspiracy to commit mail and wire fraud.

      
      

      The Petitioner was sentenced to total confinement of 15 years, total probation of 5 years and a total fine of $100,000.00. The court further ordered that the Petitioner not engage in any activity involving the solicitation of investors while on probation.

      
      

3. The Respondent did not inform or otherwise advise the Florida Real Estate Commission in writing within 30 days of having been convicted of the aforementioned felonies.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject of, this proceeding. Section 120.57(1), Florida Statutes (1983). Section 475.25, Florida Statutes (1983) provides that the Florida Real Estate Commission may revoke a license, impose an administrative fine not to exceed $1,000 and/or issue a reprimand if it finds that the licensee has been convicted of a crime which involves moral turpitude or fraudulent or dishonest dealing or if the

   licensee has failed to inform the Commission in writing with days after being convicted of any felony.

   
   

5. The Petitioner has established, by clear and convincing evidence, that the Respondent has been convicted of a crime which involves moral turpitude or fraudulent or dishonest dealing. Wire fraud is prohibited by 18 USC Section 1343, which provides in part that:

   
   

   "Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire .

   . . any writings, signs, signals, pictures or sound, for the purpose of executing such scheme . . . shall be fined . . . or imprisoned . . . or both."

   
   

6. Similarly, mail fraud is prohibited by 18 USC § 1341 which provides in pertinent part that:

   
   

   "Whoever having devised or intending to devise any scheme or artifice to defraud . .

   . [and] for the purpose of executing such scheme or artifice . . . places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the postal service . .

   . shall be fined . . . or imprisoned . . . or both."

   
   

7. Interstate transportation of stolen property is prohibited by 18 USC §2314 which provides in part that:

   
   

   "Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud shall be fined . . . or imprisoned . . . or both."

   
   

8. In State ex ref. Tullidge v. Hollinqsworth, 146 So. 2d 660, 661 (Fla. 1933), the court stated that:

   "Moral turpitude involves the idea of inherent baseness of depravity in the private social relations or duties owed by man to man or by man to society . . . It, has also been defined as anything done contrary to justice, honesty, principle or good morals . . . "

   
   

   While it is unclear whether Respondent's criminal convictions in the instant case involve inherent baseness or depravity, it is very clear that they involve conduct which is necessarily contrary to justice, honesty, principle and good morals.

   Further, in Carp v. Florida Real Estate Commission, 211 So. 2d

   240 (Fla. 3rd DCA 1968), the court specifically noted with approval that the crime of "using the mails to obtain property under false pretenses" had been found to involve moral turpitude. Further, the crime of mail fraud, use of mails to defraud, wire fraud and conspiracy to commit mail and wire fraud necessarily involve some degree of fraudulent or dishonest dealing.

   
   

9. The Petitioner established by clear and convincing evidence that the Respondent failed to inform or otherwise advise the Florida Real Estate Commission in writing within 30 days of having been convicted of the aforementioned offenses. The Petitioner submitted certified documentary evidence that a search of the Division of Real Estate files and records failed to reflect that Respondent had notified the division of his criminal convictions in the United District Court, Southern District of Florida on August 17, 1984.

RECOMMENDATIONS

Based on the foregoing Conclusions of Law and Findings of Fact it is recommended that Respondent's license as a real estate broker be REVOKED.

DONE and ORDERED this 10th day of December, 1985 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON 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 10th day of December, 1985.

COPIES FURNISHED:

Sue Hartmann, Esq. Department of Professional

Regulation

Florida Real Estate Commission

1. West Robinson Street Orlando, Flordia 32801

   
   

   Steven J. Sawyer

2. Holiday Drive Hallandale, Florida 33009

Fred 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

Harold Huff Executive Director

Department of Professional Regulation

Division of Real Estate

400 West Robinson Street

P. O. Box 1900 Orlando, Florida 32802

Docket for Case No: 85-001761

Orders for Case No: 85-001761