STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1498

)

DAVID ALONZO AVANT, III, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

In accordance with the agreement of the parties, formal hearing in the above-styled case was cancel1ed and, in lieu of formal hearing, the parties stipulated to the existence of material facts as set forth below.

During the course of this proceeding, the following appearances were entered:

APPEARANCES

For Petitioner: Janine B. Myricik, Esquire

Department of Professional Regulation Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

For Respondent: Frank S. Shaw, III

Gardner, Shelfer & Duggar, P.A. 1300 Thomaswood Drive

Tallahassee, Florida 32312 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, a licensed real estate broker, is guilty of a crime involving moral turpitude in violation of Section 475.25(1)(f), Florida Statutes, thereby subjecting his license to the imposition of disciplinary sanctions by Petitioner.

PRELIMINARY STATEMENT

On March 4, 1991, Counsel for Petitioner filed an Amended Administrative Complaint alleging that Respondent had been found guilty of a crime of moral turpitude in violation of Section 475.25(1)(f), Florida Statutes.

On June 3, 1991, a telephone hearing was convened upon motion of counsel for Respondent to dismiss the charges set forth in the Amended Administrative Complaint. In the course of that hearing it was agreed that counsel for the

parties would file a stipulation of material facts with the undersigned, thereby dispensing with the need for a formal administrative hearing.

The parties' stipulation of material facts was filed with the Division of Administrative Hearings on June 18, 1991.

STIPULATED FINDINGS OF FACT

1. Respondent David A. Avant, III, was arrested on October 16, 1989, and charged with one count of cultivation of marijuana (a third degree felony), and one count of possession of marijuana (a misdemeanor).

   
   

2. The charges concerned one marijuana plant which was found on Avant's property by a game warden.

   
   

3. Avant was arrested when he picked up the plant to throw it over his fence.

   
   

4. The marijuana plant did not belong to Avant and it was not on his property with his permission.

   
   

5. A search of Avant's truck by game wardens did not reveal any tools, buckets, etc., indicating that he was, in fact, cultivating and/or caring for the marijuana plant.

   
   

6. Avant accepted a plea agreement offered by the State Attorney to save the money and expenses that would be required for a trial.

   
   

7. Avant accepted the state attorney's plea agreement for reasons of economics and convenience.

   
   

8. Avant entered a plea of nolo contedere to one felony count of cultivation of marijuana and one misdemeanor count of possession of marijuana. 1/

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

   
   

10. Section 475.25(1)(f), Florida Statutes, authorizes the imposition of disciplinary sanctions by the Florida Real Estate Commission for a licensee who:

    
    

    Has been convicted or found guilty, regardless of adjudication, of a crime in tiny jurisdiction which directly relates to the activities of a licensed broker, salesman, or appraiser certified pursuant to s. 475.501, or involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere 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

    admissible as prima facie evidence of such guilt. 2/

11. The actions of Respondent, as set forth in the stipulation of the parties, do not constitute the commission of a crime involving moral turpitude. Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. App. 1st DCA 1985); also, Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. App. 3rd DCA 1981).

    
    

12. The proof fails to clearly and convincingly establish that Respondent is guilty of Count I of the Amended Administrative Complaint.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered dismissing the Amended Administrative Complaint.

DONE AND ENTERED this 24th day of June, 1991, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991.

ENDNOTES

1/ The finding set forth in paragraph eight is not a part of the parties' written stipulation of facts, but is based upon material contained within Respondent's Motion To Dismiss.

2/ See, Subsection 75.25(1)(f), Fla. Stat. (Supp.1990)

COPIES FURNISHED:

Janine B. Myrick, Esq.

Department of Professional Regulation Division of Real Estate

400 West Robinson Street Orlando, FL 32802

Frank S. Shaw, III

Gardner, Shelfer & Duggar, P.A. 1300 Thomaswood Drive

Tallahassee, FL 32312

Jack McRay, Esq.

General Counsel

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0750

Darlene F. Keller Division Director Division of Real Estate

400 West Robinson Street Orlando, FL 32802

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.

Docket for Case No: 91-001498

Orders for Case No: 91-001498