STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 92-3651

)

JEFFREY D. AHL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on August 19, 1992, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Senior Attorney

Department of Professional Regulations

Hurston North Tower, Suite 308

400 West Robinson Street Orlando, Florida 32801-1772

For Respondent: Michael H. Gora, Esquire

Hodgson, Russ, Andrews, Woods, & Goodyear

NCNB Bank Building, Suite 400 2000 Glades Road

Boca Raton, Florida 33431 STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated May 20, 1992, petitioner charged that respondent, a licensed real estate broker in the State of Florida, was guilty of having been convicted or found guilty of a crime which involves moral turpitude in violation of Section 475.25(1)(f), Florida Statutes; guilty of having been confined in a county jail in violation of Section 475.25(1)(n), Florida Statutes; and, guilty of not having informed the Florida Real Estate Commission

in writing within 30 days of having been convicted of a felony in violation of Section 475.25(1)(p), Florida Statutes.

Respondent executed an election of rights disputing the allegations of fact contained in the administrative complaint, and requested a formal hearing. The matter was then referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called no witnesses, but its exhibits 1-3 were received into evidence. Respondent testified on his own behalf, and called Helen Bush, accepted as an expert in marriage, family and sex therapy; Curtis Fuchs; William Harris; Jennifer Shev; and Robbin Thomas Ahl as witnesses.

Respondent's exhibits 1-3 were received into evidence. 1/

The transcript of hearing was not ordered and, consequently, the parties were granted leave until August 31, 1992, to file proposed findings of fact. Petitioner elected to file such proposals and they have been adopted in substance in this recommended order. Respondent did not file such proposals but did file a letter in response to petitioner's proposal. Such letter has been duly considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Professional Regulation, Division of Real Estate (Department), is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. Respondent, Jeffrey D. Ahl, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0155081. The last license issued was as a broker-salesperson, c/o Data Pak Systems & Services, Inc., 1050 South Federal Highway, Delray Beach, Florida 33483.

   
   

3. On September 12, 1991, respondent was found guilty of eleven counts of lewd assault, a second degree felony, in violation of Section 800.04(1), Florida Statutes. The Circuit Court of Palm Beach County, Florida, adjudicated the respondent guilty on each count and committed the respondent to the Palm Beach County Jail for a term of 364 days, followed by a term of probation of 10 years.

   
   

4. Notwithstanding his conviction on September 12, 1991, it was not until March 13, 1992, that respondent, through his attorney, informed petitioner of his conviction of the aforesaid felony. According to respondent, whose testimony is credited, the myriad of personal problems that befell him during this time period, including the remorse he was suffering, his divorce, a foreclosure, and his conviction, preoccupied his mind such that he overlooked his obligation to notify petitioner upon his conviction. Notably, respondent did not practice such profession following his conviction, and upon receipt of the renewal notice for his broker's license immediately recognized his oversight and had his attorney promptly inform petitioner of his conviction.

   
   

5. Respondent served eight months and one week of his 364-day sentence in the Palm Beach County Jail, and was released from custody in May 1992. Currently, pursuant to the court's commitment order, respondent is on probation

   for a term of 10 years, the first year of which he is under community control. So controlled, respondent is required to report to his probation officer every Monday and secure approval of his weekly schedule of activities. Except for work, church and two hours of shopping each week, respondent is confined to his residence. Following successful completion of community control, respondent will be on a more relaxed form of probation, with monthly reporting to his probation officer.

   
   

6. The court's commitment order further required that respondent continue psychological/psychiatric treatment, pay any medical expenses for his daughter's psychological/psychiatric treatment, and remain current on his child support payments. Respondent has duly abided by such obligations.

   
   

7. The offense for which respondent stood convicted involved the touching and fondling of his daughter during times when he believed her to be asleep. Such activity occurred during the period of time she was 9 to 13 years of age, and ceased in approximately 1986, when respondent realized his daughter knew what was occurring. Disclosure of his activities apparently occurred in September 1990, during the course of his divorce proceedings.

   
   

8. Upon disclosure of what had occurred, respondent was referred by the Department of Health and Rehabilitative Services to Helen Bush, a marriage, family and sex therapist, for counseling. Since such initial referral in September 1990, respondent has been regularly and responsibly counseled through Ms. Bush, except for that period of time in which he was incarcerated.

   
   

9. In the opinion of Ms. Bush, which is credited, respondent suffers from a psychological disorder, regressed pedophilia, which, precipitated by stress, was the cause for his misconduct towards his daughter. Such disorders are treatable and where, as here, the offender is genuinely remorseful about what occurred, has the motivation to rehabilitate himself, and the support of his family, the likelihood of respondent being successfully treated is great.

   
   

10. Currently, respondent has remarried, and continues to fulfill his responsibilities to continue treatment and to remain current in his support obligations. It is respondent's desire to once again practice as a real estate broker so that he might reasonably support his new family, as well as remain current with his obligations, and he would like to associate himself with William W. Harris, another licensed real estate broker. Mr. Harris testified at hearing, is aware of respondent's conviction, and is most amenable to respondent being associated with his office.

    
    

11. Considering the quality of proof offered in this case, it is found that, notwithstanding respondent's conviction of a crime involving moral turpitude, respondent possesses the requisite honesty, truthfulness, trustworthiness, good character and good reputation for fair dealing required for licensure as a real estate broker. In reaching such conclusion the seriousness of the offense with which respondent stands convicted has not been overlooked; however, neither has the fact that the conduct which precipitated such offense had its genesis in a psychiatric disorder that is treatable and that respondent is currently experiencing success in such treatment. Under such circumstances, respondent's conviction does not detract from the conclusion that he possesses those worthy attributes of honesty, trustworthiness and fair dealing the public is entitled to expect when dealing with a real estate broker.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 120.60(7), Florida Statutes.

    
    

13. At issue in these proceedings is whether respondent's conduct violated the provisions of Section 475.25(1)(f), (n) and (p), Florida Statutes. In cases of this nature, the Department bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. Pertinent to this case, Section 475.25(1), Florida Statutes, provides that the Florida Real Estate Commission may:

    
    

    . . . place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, registration or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, registrant, 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 salesperson, or involves moral turpitude or dishonest dealing . . .

    
    

    * * *

    
    

    (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.

    
    

15. Here, the proof is clear and convincing that respondent was convicted of a crime involving moral turpitude, and that he failed to notify the Commission within 30 days after such conviction. Accordingly, respondent has violated the provisions of Section 475.25(1)(f) and (p), Florida Statutes. Respondent was not, however, shown to have been confined in a county jail when the administrative complaint issued or at the time of hearing. Accordingly,

    respondent is not subject to disciplinary action under the provisions of Section 475.25(1)(n), Florida Statutes.

    
    

16. Notwithstanding the clear language of Section 475.25(1)(n), which accords the Commission disciplinary authority only if a licensee "is confined in any county jail . . .," petitioner contends that the Commission has previously interpreted such section to mean any post-adjudicative confinement will subject the licensee to discipline even though not so confined at the time of hearing. In support of such position, the petitioner has relied upon Florida Department of Professional Regulation v. Hair, DOAH Case No. 92-1144, Final Order filed August 4, 1992. For the reasons that follow, petitioner's contention is rejected.

    
    

17. First, the final order rendered in Florida Department of Professional Regulation v. Hair, is not of record in these proceedings, and no proof was offered at hearing to support such interpretation. Moreover, were the final order in Hair to be considered, it conflicts with the final order entered by the Commission in Department of Professional Regulation v. Hart, DOAH Case No. 88- 4928, Final Order filed August 22, 1989, which found no such violation absent confinement at the time of hearing. Second, in determining whether a licensee has violated Section 475.25(1)(n), Florida Statutes, one "must bear in mind that it is, in effect, a penal statute . . . this being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Further, if there are any ambiguities, such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977). Keeping such standards in mind, it is concluded that the legislative intent manifested by Section 475.25(1)(n) contemplates confinement at the time disciplinary action is sought to be taken. Such not being established in the instant case, petitioner has failed to demonstrate that respondent is subject to disciplinary action under the provisions of such section.

    
    

18. In assessing the appropriate penalty in the instant case, the disciplinary guidelines, as well as the aggravating and mitigating circumstances, set forth in Rule 21V-24.001, Florida Administrative Code, have been considered. Considering such factors, it is concluded that an appropriate penalty for respondent's violation of Section 475.25(1)(f) is a term of probation to run concurrently with the probation he is presently serving on the criminal conviction, and that an appropriate penalty for respondent's violation of Section 475.25(1)(p) is a reprimand. Such reprimand balances the Department's need and right to know of a licensee's conviction so that it might take such action as may be necessary to protect the public and the facts of this case, which demonstrate that respondent's failure to timely notify the Commission was not volitional and that he did not practice as a broker following his conviction. Likewise, the probationary term addresses the seriousness of the offense for which respondent was convicted, while giving due consideration to the genesis of the conduct that led to the offense and the marginal relevance, under the facts of this case, such conviction has to the business of a real estate broker. It further considers respondent's demonstrated honesty and trustworthiness, and the observations of the court in Brod v. Jernigan, 188 So.2d 575, 581 (Fla. 2d DCA 1966), that:

Chapter 475 vests in the Florida Real Estate Commission a broad discretionary power and authority to supervise the privileged business of real estate broker and to deal firmly with those engaged in it, even to the

point of taking away their means of livelihood by revocation or suspension of license. But such potent administrative weapons must always be reasonably and cautiously, and even sparingly utilized. The administrative processes of the Commission should be aimed at the dishonest and unscrupulous operator, one who cheats, swindles, or defrauds the general public in handling real estate transactions . . . .

(Emphasis added).

Accord, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of

violating Section 475.25(1)(f) and (p), Florida Statutes, not guilty of violating Section 475.25(1)(n), Florida Statutes, and imposing the penalty set forth in paragraph 18, supra.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of September 1992.

WILLIAM J. KENDRICK

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 8th day of September 1992.

ENDNOTES

1/ Respondent's exhibit 3 was marked for identification at hearing, and with respondent's agreement, entrusted to petitioner's counsel for review. It was agreed that petitioner's counsel would file the exhibit with the Hearing Officer within 10 days of the date of hearing and note any objections he had to the exhibit. Petitioner's counsel duly filed the exhibit with the Hearing Officer and rendered no objections to its admissibility. Accordingly, respondent's exhibit 3 was received into evidence.

COPIES FURNISHED:

Steven W. Johnson, Esquire Senior Attorney

Department of Professional Regulations

Hurston North Tower, Suite 308

400 West Robinson Street Orlando, Florida 32801-1772

Michael H. Gora, Esquire Hodgson, Russ, Andrews, Woods,

& Goodyear

NCNB Bank Building, Suite 400 2000 Glades Road

Boca Raton, Florida 33431

Darlene F. Keller Division Director Division of Real Estate

Department of Professional Regulation

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

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

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,

CASE NO.: 92-81110

vs.

JEFFREY D. AHL,

Respondent.

/

DOAH CASE NO.: 92-3651

FINAL ORDER

On January 19, 1993, the Florida Real Estate Commission heard this case to issue a Final Order.

Hearing Officer William J. Kendrick of the Division of Administrative Hearings presided over a formal hearing on August 19, 1992. On September 8, 1992, he issued a Recommended Order, a copy of which is attached here to as Exhibit A and made a part hereof.

The Petitioner filed Exceptions to the Recommended Order. A copy of said Exceptions is attached hereto as Exhibit B and made a part hereof.

The Petitioner took exception to the Hearing Officer's Conclusion of Law in Paragraphs 15, 16 and 17, referring to s. 475.25(1)(n), Florida Statutes.

After completely reviewing the record and transcript and being otherwise fully advised, the Commission adopts the Petitioner's Exceptions to the Hearing Officer's Recommended Order. The Commission finds that the Hearing Officer's Conclusion of Law, as stated on Page 8 of the Recommended Order, is erroneous and contradictory to the interpretation applied by the Commission to the violation regarding a licensee being incarcerated.

The Commission finds the Hearing Officer to be in error when he stated the Respondent is not subject to disciplinary action because the Respondent was not confined in the county jail when the Administrative Complaint was issued or at the time of the hearing.

Therefore, the Commission adopts the Hearing Officer's Findings of Fact, and Conclusions of Law except Paragraphs 15, 16 and 17. The Commission accepts and incorporates the Petitioner's Exceptions to the Hearing Officer's Conclusions of Law and finds the Respondent guilty of violating s. 475.25(1)(n), Florida Statutes, as alleged in Count II of the Administrative Complaint.

Accordingly, the Florida Real Estate Commission increases the Recommended Penalty and ORDERS that the license of Jeffery D. Ahl be suspended for a period of two (2) years.

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 19th day of January, 1993 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Michael Gora, Esquire, Hodgson, Russ, Andrews, Woods & Goodyear, 2000 Glades Road #400, Boca Raton, Florida 33431; to Hearing Officer William Kendrick, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and to Steven Johnson, Esquire, DPR, Post Office Box 1900, Orlando, Florida 32802, this 5th day of February, 1993.

Director

Docket for Case No: 92-003651

Orders for Case No: 92-003651