STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4403

)

GENE S. WILSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on October 26, 1990, in Orlando, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Steven W. Johnson

Senior Attorney

Department of Professional Regulation, Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Stanley M. Silver, Jr.

217 East Ivanhoe Boulevard, North Orlando, Florida 32804

STATEMENT OF THE ISSUES

The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated June 21, 1990; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on June 21, 1990, when the Department of Professional Regulation, Division of Real Estate (Department) filed an administrative complaint against the Respondent, Gene S. Wilson, and alleged three violations of chapter 475, Florida Statutes. More specifically, the complaint alleged that Respondent had violated Section 475.25(1)(p), Florida Statutes, by failing to inform the Florida Real Estate Commission in writing within thirty days of having been convicted of a felony; that Respondent had been confined in a state prison in violation of Section 475.25(1)(n), Florida Statutes; and that

Respondent had been found guilty of a crime which directly related to the activities of a licensed real estate salesman or involves moral turpitude or fraudulent or dishonest dealing in violation of Section 475.25(1)(f), Florida Statutes.

On June 27, 1990, the Respondent executed an election of rights which disputed the allegations of fact contained in the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was forwarded to the Division of Administrative Hearings for formal proceedings on July 18, 1990.

At the hearing, the parties stipulated to the facts addressed in paragraph

2 of the administrative complaint. The Department's exhibits marked for identification as Petitioner's exhibits 1 through 7 were admitted into evidence. The Respondent testified in his own behalf and Respondent's exhibits 1 and 2 were admitted into evidence. Additionally, Respondent was granted leave to

late-file the deposition testimony of attorney Michael Sigman. The Respondent was to file that deposition within 20 days of the hearing date. To date, such deposition has not been filed.

At the hearing, the parties represented that a transcript of the proceedings would not be filed. After the hearing, the parties were granted leave until 5:00 p.m., November 26, 1990, to file their proposed recommended orders. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the stipulation of the parties, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Department is the state agency charged with the responsibility of pursuing disciplinary actions against real estate licensees.

   
   

2. At all times material to the allegations of the administrative complaint, Respondent is and has been a licensed real estate salesman in the State of Florida having been issued license number 0347386.

   
   

3. On May 7, 1987, the Respondent was charged with seven counts of criminal misconduct. The charging document, an information filed by the State Attorney of the Third Judicial Circuit of Florida, alleged that Respondent had: solicited to commit extortion while armed; solicited to commit murder I while armed; delivered a controlled substance; possessed a controlled substance with intent to sell or deliver; committed grand theft II; and carried a concealed firearm during a felony.

   
   

4. Subsequently, Respondent was tried and found guilty of: solicitation to commit extortion (a 3rd degree felony); solicitation to commit murder I (a 1st degree felony); delivery of a controlled substance (a 3rd degree felony); grand theft II (a 3rd degree felony) ; and carrying a concealed firearm (a 3rd degree felony). The judgment of guilt was entered on September 9, 1987.

   
   

5. Respondent received a sentence for each of the convictions noted above and was committed to the Department of Corrections with credit for the 150 days of incarceration in the county system he had spent prior to the imposition of the sentences. All sentences ran concurrent with one another. During the time

   of his incarceration (on or about September 30, 1987), Respondent's real estate license expired. At that time, Respondent mistakenly presumed he was not required to send a notice of the convictions to the Real Estate Commission and, therefore, did not do so.

   
   

6. In July, 1989, Respondent was released from prison. Upon his release, Respondent considered what action would be needed to renew his real estate license. To that end, he took a continuing education course and discovered he should have notified the Real Estate Commission of his felony convictions. On March 10, 1990, Respondent wrote a letter to the Real Estate Commission which stated, in part:

   
   

   My name is Gene Stephen Wilson, expired license #0347386. My license expired September 30, 1987. In September 1987, while working in another profession, I was convicted, sentenced and served two and one- half years in a Correctional Institution for a felony charge.

   Since my license was expired, I did not realize that I was required to report to FREC at that time. Now, after completing my sentence, I have been granted an Order of Executive Clemency by the Governor of the State of Florida.

   
   

7. On October 5, 1989, the Governor, with the concurrence of the requisite members of the Cabinet of the State of Florida, filed an Executive Order which granted to Respondent the restoration of his civil rights.

   
   

8. Anne Frost, a real estate broker, and Deborah J. Mickle, a real estate agent with Anne Frost, Inc., submitted written statements which attest that, based upon their experiences with the Respondent, he is ethical and professional in connection with the real estate business.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   
   

10. Section 475.25(1), Florida Statutes, authorizes the Florida Real Estate Commission to discipline a real estate licensee if it finds that the licensee committed any of the violations specified in the subsections of that statute. Among those subsections are:

    
    

    (f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the activities of a license broker, salesman, or appraiser certified pursuant to s. 475.501, or involves moral turpitude or fraudulent or dishonest dealing. . The record of 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 county jail, post- adjudication; or is confined in any state or federal prison or mental institution; or, through mental disease or deterioration, can no longer safely be entrusted to deal with the public or in a confidential capacity.

    * * *

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

    
    

11. Based upon the foregoing, the Department has established by clear and convincing evidence that the Respondent failed to inform the commission in writing within 30 days after he was convicted of the felonies. That omission is not excused by the inactive state of Respondent's license at the time nor by the fact that he was not pursuing a real estate career at the time of the criminal charges.

    
    

12. The evidence in this case established that Respondent was convicted, whether guilty or not, of several serious felonies. As a matter of law, those convictions stand as prima facie evidence of the Respondent's guilt. To his credit, however, the Respondent has presented a credible explanation as to the possession and delivery of the single halcyon pill. In that regard, Respondent admitted he had inappropriately allowed an individual to have one of his prescribed pills. While the whole scenario regarding the circumstances of why that individual then proceeded to entrap the Respondent evolved into a bizarre tale, it is nonetheless accepted as to the fact that only one pill was given to the man and that he, for reasons unknown, turned the Respondent in to the authorities.

    
    

13. As to the solicitation charges, the record in this case does not remotely explain how the Respondent could have been found guilty of planning the murder of someone long dead (body builder Charles Atlas). By his admission, Respondent was experiencing emotional difficulties during that period of his life which were exacerbated by the breakup of his marriage and his alcoholic state. Because of his condition he did not testify at the trial of the criminal charges. Based upon the record in this case, it is inexplicable that such conviction was upheld on appeal. To his credit, it is undisputed that the Governor and the Cabinet restored Respondent's civil rights on October 5, 1989 which, considering the severity of the crimes, was remarkably soon after his release.

    
    

14. Rule 21V-24.001, Florida Administrative Code, sets forth the disciplinary guidelines for violations of Section 475.25, Florida Statutes. Those guidelines recommend a range of penalties for the violations committed. Additionally, the rule authorizes the placement of a licensee on probation which may be for such a period of time and subject to such conditions as the Commission may specify. That rule provides, in part:

VIOLATIONS RECOMMENDED RANGE OF PENALTY

(g)475.25(1)(f) (g)Up to 7 years suspension or revocation

* * * (o)475.25(1)(n) (o)Revocation

* * *

(q)475.25(1)(p) (q)Up to 5 years suspension or revocation

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Florida Real Estate Commission enter a final order finding the Respondent guilty of having violated Section 475.25(1)(p), Florida Statutes, suspending his license for a period of two years, imposing an administrative fine in the amount of $500, and requiring a period of probation under such terms and conditions as the Commission may deem appropriate.

DONE and ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of

Administrative Hearings this 30th day of November, 1990.

APPENDIX TO CASE NO. 90-4403

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 through 5 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

None timely submitted.

COPIES FURNISHED:

Steven W. Johnson Senior Attorney

Department of Professional Regulation, Division of Real Estate

400 West Robinson Street

Post Office Box 1900Orlando, Florida 32802

Stanley M. Silver, Jr.

217 East Ivanhoe Boulevard, North Orlando, Florida 32804

Darlene F. Keller Division Director

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0750

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE

Petitioner

vs. CASE NO. 0167503

DOAH NO. 90-4403

GENE S. WILSON

Respondent

/

FINAL ORDER

On January 15, 1991, the Florida Real Estate Commission heard this case to issue a Final Order.

Hearing Officer Joyous D. Parrish presided over a formal hearing on October 26, 1990. On November 30, 1990, she issued a Recommended Order which is adopted by the Florida Real Estate Commission as to all Findings of Fact, Conclusions of Law, and the Recommended Penalty except for that part of the penalty which mandates a period of probation. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

After completely reviewing the record, the Commission finds that the penalty of probation was not allowed by rule and statute when the violation occurred.

Therefore, the Commission ORDERS that the Respondent's license be suspended for a period of two (2) years and that Respondent pay an administrative fine of

$500.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s.120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 15th day of January 1991 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to Stanley Silver, Jr., Esq., 217 East Ivanhoe Blvd. North, Orlando, FL 32804;

to Hearing Officer Joyous D. Parrish, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and to Steven Johnson, Esq., DPR, Post Office Box 1900, Orlando, FL 32802, this 15TH day of January 1991.

Docket for Case No: 90-004403

Orders for Case No: 90-004403