STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2910

)

DANIEL R. LEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on October 6, 1986, in Tallahassee, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

For Petitioner: Susan Hartmann, Esquire

Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

For Respondent: Respondent did not appear

in person or through a representative.

BACKGROUND AND PROCEDURAL MATTERS

Petitioner filed its Administrative Complaint on June 16, 1986, alleging three counts of violations of Chapter 475, F.S. Respondent's answer, dated July 5, 1986, requested a formal hearing, admitted his current incarceration in the Federal Correctional Institution in Lexington, Kentucky and suggested that the formal hearing be delayed until his return to the Orlando area upon release.

In response to the Notice of Assignment and Order entered August 13, 1986, Respondent sent a copy of the above- described answer with a note: "Enclosed is self-explanatory." The hearing was set and at no time did Respondent move for a continuance, state when he would be available to appear in person or otherwise provide a basis to delay the proceeding.

At the hearing Petitioner presented one witness and six exhibits.

Respondent did not appear.

A transcript of the hearing was filed on November 17, 1986. Neither party submitted written arguments and proposed recommended orders.

ISSUES

The issues in this proceeding are whether Respondent violated Chapter 475, F.S., by:

1. Being convicted of a crime involving moral turpitude. (Subsection 475.25 (1)(f), F.S.)

2. Being confined in a federal prison; (Subsection 475.25(1)(n), F.S.) and

3. Failing to notify the Florida Real Estate Commission in writing within

30 days of his conviction. (Subsection 475.25(1)(p), F.S.)

FINDINGS OF FACT

1. Daniel Reagan Lee is licensed as a real estate salesman in the State of Florida under License No. 0145478. He renewed his non-active salesman license on October 1, 1982, and two years later the license expired. It has not been renewed. (Petitioner's Exhibit #1)

   
   

2. On July 1, 1985, in a trial by jury, in the U.S. District Court for the Middle District of Florida, Mr. Lee was found guilty of three counts of a Grand Jury criminal indictment. He was found not guilty of one count of the same indictment. (Case No. 84-95-Cr-T-15)(Petitioner's Exhibit #3) The convictions were for importation of marijuana in violation of Title 21, U.S.C., Section 952 and Title 18, U.S.C., Section 2; conspiracy to possess with intent to distribute marijuana, in violation of Title 21, U.S.C., Section 846; and possession with intent to distribute marijuana, in violation of Title 21, U.S.C., Section 841(a)(1) and (2). (corrected version of Petitioner's Exhibit #3, filed by leave of the Hearing Officer on October 23, 1986.)

   
   

3. On July 26, 1985, Mr. Lee was sentenced by U.S. District Judge William

   J. Castagna to three years of imprisonment and two years of special parole. (Petitioner's Exhibit #3.)

   
   

4. On March 25, 1986, the Florida Real Estate Commission received a letter from Daniel Lee's mother, advising them of her son's conviction and incarceration. (Petitioner's Exhibit 5a, transcript, p. 11.)

   
   

5. Daniel Lee is now and has been since August 1986, serving his sentences at the Federal Correctional Institution in Lexington, Kentucky. (Respondent's Answer dated July 5, 1986, Petitioner's Exhibit #5a.)

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. The relevant portions of Section 475.25(1), F.S., provide as follows:

   
   

   475.25 Discipline.

   (1) The commission may deny an application for licensure, registration, or permit, or renewal thereof; 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 offense; and may issue a reprimand or any or all of the foregoing, if it finds that the licensee, permittee, or applicant:

   * * *

   (f) 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 conten- dere shall be considered a conviction for purposes of this paragraph. The record

   of a conviction certified or authenticated in such form as to be admissible in evidence

   under the laws of the state shall be admissible as prima facie evidence of such guilt.

   * * *

   (n) Is confined in any state or federal prison or mental institution or, through mental disease or deterioration, can no longer safely be en- trusted to deal with the public or in a con- fidential capacity.

   * * *

   (p) Has failed to inform the commission in writing within 30 says after pleading guilty or nolo contendere to, or being convicted or found guilty of any felony.

   
   

8. The crimes of which the Respondent was convicted are federal felonies and are crimes of moral turpitude. Pearl vs. Florida Board of Real Estate, 394 So.2d 189, 191. (Fla. 3rd DCA 1981); Fla. DPR, Division of Real Estate vs. Kerry J. Nahoom, DOAH Case No. 85-3176 (Final Order entered on September 16, 1986)

   
   

9. The Petitioner proved violations of Subsections 475.25(1)(f), (n) and (p), F.S.

   
   

10. The only evidence in the record regarding Respondent's license status is Harold Huff's certification that the non-active license was renewed on October 1, 1982, and "expired" on September 30, 1984, without renewal to date. The term, "expired" is a misnomer, as licensees are given a four-year grace period in which to reactivate their license as active or inactive. Section 475.183, F.S. The first day of the four-year period is the first day the licensee failed to hold a valid current active or inactive license, or October 1, 1983, whichever is later. Rule 21V-3.10(2), F.A.C. Therefore, for Mr. Lee the four-year grace period is due to expire on September 30, 1988.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a final order be entered finding Daniel Lee guilty of violations of Subsections 475.25(1)(f), (n) and (p), F.S., and revoking his non- current inactive real estate salesman's license.

DONE and RECOMMENDED this 17th day of December, 1986, in Tallahassee, Florida.

MARY CLARK

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 17th day of November, 1986.

COPIES FURNISHED:

Susan Hartmann, Esquire Division of Real Estate Department of Professional

Regulation

400 W. Robinson Street Orlando, Florida 32801

Daniel R. Lee, 04314-018 Antaeus Unit

Post Office Box 2000 Lexington, Kentucky 40512

Daniel R. Lee

c/o Elizabeth C. Lee 1025 Hillsboro Avenue Ft. Myers, Florida 33905

Harold Huff, Executive Director Division of Real Estate Department of Professional

Regulation

400 W. Robinson Street Orlando, Florida 32801

Fred Roche, Secretary Department of Professional

Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-002910

Orders for Case No: 86-002910