STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-3843

)

JUSTIN J. LIPMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on December 14, 1993, in Pensacola, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Eric Eggen, Esquire

Suite 347, Blount Building

3 West Garden Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The issue in this cause is whether the Respondent's real estate license should be suspended, permanently revoked, or otherwise disciplined based upon alleged violations of Chapter 475, Florida Statutes.

PRELIMINARY STATEMENT

On June 7, 1993, the Petitioner filed an Amended Administrative Complaint against the Respondent alleging four violations of Chapter 475, Florida Statutes. Specifically, the Administrative Complaint alleged that the Respondent's real estate broker license should be disciplined for: (1) violating Subsection 475.25(1)(f), Florida Statutes, by having been convicted or found guilty, regardless of adjudication, of a crime which directly relates to the activities of a licensed real estate salesperson or involves moral turpitude or fraudulent or dishonest dealing; (2) violating Subsection 475.25(1)(o), Florida Statutes, by having been guilty of a course of conduct or practices which shows that he is so incompetent, negligent, dishonest, or untruthful; that

the money, property, transactions, and rights of investors, or those with whom he may sustain a confidential relationship, may not safely be entrusted to him;

1. violating Subsection 475.25(1)(p), Florida Statutes, by not having informed the Florida Real Estate Commission, in writing, within thirty (30) days, of having pled guilty or having been convicted of a felony; and (4) violating Subsection 475.455(2), Florida Statutes, and, therefore, Subsection 475.25(1)(e), Florida Statutes, by having had another state agency suspend or revoke the license or registration of, or impose a penalty against the licensee. The Respondent contested the allegations contained in the Amended Administrative Complaint and requested a formal administrative hearing. The Respondent's request was forwarded to the Division of Administrative Hearings.

   
   

   At the hearing, the Petitioner presented the testimony of the Respondent and had nine (9) exhibits marked for identification, eight (8) of which were offered and received in evidence, as follows:

   
   

   1. Certified copy of Respondent's licensure file;

      
      

   2. Copy of Answer and Defenses of Respondent;

      
      

   3. Certified copy of Respondent's November 2, 1983 criminal information charging counterfeiting of U.S. currency;

      
      

   4. Circuit Court Clerk's certificate attesting that Respondent was adjudged guilty on January 12, 1984 and sentenced to six months in county jail;

      
      

   5. Composite certified copy of Respondent's February 1993 disbarment proceedings;

      
      

   6. Certified copy of Respondent's March 27, 1993 felony criminal information charging possession of marijuana and possession of marijuana with intent to sell;

      
      

   7. Certified copy of Respondent's October 17, 1990 Order Withholding Adjudication of Guilt and Placing on Probation; and

      
      

   8. Certified copy of Respondent's January 21, 1992 Petition for Termination of Probation.

The Respondent testified in his own behalf and presented the testimony of one additional witness. The Respondent did not offer any exhibits into evidence.

After the hearing, the Petitioner and the Respondent filed Proposed Recommended Orders on January 27, 1994 and February 8, 1994, respectively. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order, except where such proposals were not supported by the evidence or were immaterial, cumulative, or subordinate.

Specific rulings on the parties' proposed findings of fact are contained in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. Since 1977, the Respondent has been a licensed real estate salesperson in the State of Florida having been issued license number 0167049.

2. The last license issued to the Respondent was as a salesperson for Tony Bucci Realty, Inc., 2216 East Olive Road, #108, Pensacola, Florida 32514.

   
   

3. On November 2, 1983, a criminal information was filed in the Circuit Court of Escambia County, Florida, charging the Respondent as follows:

   
   

   Between February 1978 and May 1978, at and in Escambia County, Florida and Orange County, Florida: did unlawfully agree, conspire, combine, or confederate with another person

   or persons, to wit: Kenneth Massoud, to commit a criminal offense, to wit: counterfeiting of United States Currency.

   
   

   The charge constituted a criminal violation of Section 831.18, Florida Statutes, and Subsection 777.04(3), Florida Statutes, (conspiracy). At the time, counterfeiting was a felony and conspiracy to counterfeit was a misdemeanor.

   
   

4. On January 12, 1984, the Respondent pled nolo contendere to the charge of conspiracy to commit counterfeiting, a violation of Section 777.04(3), Florida Statutes, a first degree misdemeanor, and was adjudged guilty and sentenced to six months in the county jail.

   
   

5. The Respondent denied that he was guilty of the charges contained in the information or the charge to which he pled.

   
   

6. On or about June 28, 1985, the Florida Bar filed a complaint against the Respondent seeking to disbar him for his conduct in the counterfeiting case. Additionally, the Respondent was charged with trust account irregularities related to his practice of law. The Respondent was found to have violated disciplinary rules relating to trust accounting procedures, the accounting of clients' interest

   shortages. Likewise, he was guilty of the charge of conspiracy to counterfeit. The Supreme Court of Florida found that the referee's findings of fact and recommendations of guilt were amply supported. Based on these findings, on October 2, 1996, the Respondent was disbarred from the practice of law in Florida. However, the Respondent testified that he is eligible to apply for

   re

   
   

7. On June 13, 1990, an information was filed charging the Respondent with one count of possession of more than 20 grams of cannabis, in violation of Subsection 893.13(1)(f), Florida Statutes, a third degree felony, and one count of possession of marijuana with the intent to sell, deliver or manufacture, in violation of Subsection 893.13(1)(a), Florida Statutes, punishable as a third degree felony.

   
   

8. On October 2, 1990, the Respondent entered a plea of nolo contendere to possession of a controlled substance without a prescription and possession of a controlled substance with the intent to sell or deliver. The court withheld adjudication and placed the Respondent on supervised probation for two years.

   
   

9. At no time material hereto did the Respondent notify the Florida Real Estate Commission in writing of having entered a nolo contendere plea to a felony or to a misdemeanor. Respondent did not notify the Commission because he misunderstood his obligation to do so since he had not pled guilty nor been convicted of a felony.

10. To his credit, he has not been subject to discipline or sanction by the Florida Real Estate Commission since his initial licensure.

    
    

11. Finally, it is likely that the loss of his real estate sales license will leave Respondent in a more destitute position than his already extremely low income status renders him since Respondent's main income is from his employment as a licensed real estate salesperson.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Subsection 475.25(1)(b), Florida Statutes (1991), as it pertains to the alleged facts in this matter reads, in pertinent part, as follows:

    
    

    1. The commission may . . . suspend a license, certification, registration, or permit for a period not exceeding 10 years; may revoke a license, certification, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense . . . if it

finds that the licensee . . . (emphasis supplied):

1. Has violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.

2. 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, salesperson, 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 be admissible as prima facie evidence of such guilt . . ..

1. Has . . .been found guilty of a course of conduct or practices which show that he is so incompetent, negligent, dishonest, or untruthful that the money, property, transactions, and rights of investors, or those with whom he may sustain a confidential relation, may not safely be entrusted to him.

2. 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.

(Emphasis supplied.)

1. Revocation of license proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Therefore, the Petitioner has the burden of proving by clear and convincing evidence the allegations contained in the Administrative Complaint against the Respondent. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing Co., supra., 550 So.2d 112, fn. 5, provides the following definition to the clear and convincing evidence standard:

   
   

   That standard has been described as follows:

   [C]lear and convincing evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking

   in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of trier of fact the firm belief of [sic] conviction, with hesitancy, as to the truth of the allegations sought to be established. Slomowitz v.

   Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

   
   

2. The Petitioner presented clear and convincing testimony and evidence that Respondent had pled nole contendere to conspiracy to counterfeit. The crime of conspiracy to counterfeit, by its nature, involves moral turpitude and fraudulent or dishonest dealing. Respondent's pleas to the conspiracy charge violated Section 475.25(1)(f) and (o), Florida Statutes. Additionally, Respondents disbarment for trust account violations in his law practice constitutes a violation of 475.25(1)(o), Florida Statutes. At a minimum, Respondent was required to notify the Florida Real Estate Comission of the plea to the conspiracy charge. His failure to do so constitutes a violation of 475.25(1)(p) and (e), Florida Statutes.

   
   

3. Disciplinary guidelines of the Florida Real Estate Commission are codified in Rules 61J2-24.001(2) and (3), Florida Administrative Code. These rules provide that the Respondent may be fined up to $1,000.00 per count and may have his broker license penalized as follows:

   
   

   . . .

   1. 475.25(1)(e) - Up to 8 years suspension or revocation.

   2. 475.25(1)(f) - Up to 7 years suspension or revocation . . ..

   1. 475.25(1)(o) - A minimum of a 1 year suspension up to revocation.

   2. 475.25(1)(p) - Up to a 5 year suspension or revocation.

   
   

   (Emphasis supplied.)

   
   

4. The above rule provides that when "aggravating or mitigating circumstances" can be demonstrated to the Commission by clear and convincing evidence, the Commission shall be entitled to deviate from the above guidelines in imposing discipline upon a licensee. These circumstances include, inter alia, the severity of the offense, disciplinary history of the Respondent,

   degree of financial hardship to the licensee, the degree of harm to the consumer or public, and the number of counts distinct counts in the Administrative Complaint.

   
   

5. In this case, there was little or no mitigation in the record concerning the Respondent's violation of the real estate practice act. The Respondent's lone character witness, a retired judge, appeared to scarcely know either the Respondent's real estate or law practice. The Respondent had not appeared in the judge's court as either counsel or defendant and the judge did not know the Respondent socially. Additionally, the Respondent has demonstrated a history of continued violations of the law regarding the possession of controlled substances with intent to sell or deliver and a conspiracy to counterfeit United States currency, as well as trust account irregularities in the practice of law.

   
   

6. The trust account violations alone would warrant a severe penalty in this case. However, when the trust account violations are combined with Respondent's other legal problems, revocation of license becomes an appropriate penalty and is within the Commission's penalty guidelines for one or more of the offenses proven.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Florida Real Estate

Commission finding the Respondent:

1. Guilty of having been convicted or found guilty, regardless of adjudication, of a crime which directly relates to the activities of a licensed real estate salesperson or involves moral turpitude or fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes, as charged in Count I;

   
   

2. Guilty of a course of conduct or practices which shows that the Respondent is so incompetent, negligent, dishonest, or untruthful that the money, property, transactions, and rights of investors, or those with whom he may sustain a confidential relation, may not safely be entrusted to him, in violation of Subsection 475.25(1)(o), Florida Statutes, as charged in Count II;

   
   

3. Guilty of not having informed the Florida Real Estate Commission in writing within thirty (30) days of having pled guilty or having been convicted of a felony and, therefore, is in violation of Subsection 475.25(1)(p), Florida Statutes, as charged in Count III; and

   
   

4. Guilty of having had another state agency suspend the license or registration of, or impose a penalty against it, as set forth in Subsection 475.455(2), Florida Statutes, and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes, as charged in Count IV. It is

   
   

   FURTHER RECOMMENDED that the Final Order should further order all of the Respondent's real estate licenses, registration, certificates, and permits be revoked.

   DONE AND ENTERED this 21st day of April, 1994, in Tallahassee, Florida.

   
   

   
   

   DIANNE CLEAVINGER

   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 21st day of April, 1994.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3843

   
   

   Petitioner's Proposed Findings of Fact

   
   

   1. The facts contained in paragraphs numbered 1, 2, 3, 4, 5, 6, 7, 8 and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material.

      
      

      Respondent's Proposed Findings of Fact

      
      

   2. The facts contained in paragraphs 1, 2, 3, 5, 8 and 11 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material.

   3. The facts contained in paragraphs 4, 6, 7, 10 and 12 of Respondent's Proposed Findings of Fact are subordinate.

   4. The facts contained in paragraph 9 of Respondent's Proposed Findings of Fact are adopted, except for the last sentence, which is rejected.

COPIES FURNISHED:

James H. Gillis, Esq. Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900

Eric Eggen, Esq.

Suite 347, Blount Building

3 West Garden Street Pensacola, FL 32501

Darlene F. Keller, Director Division of Real Estate Department of Business and

Professional Regulation Post Office Box 1900 Orlando, FL 32802-1900

Jack McRay, Esq.

General Counsel

Department of Business and Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, FL 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

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE,

Petitioner,

vs. CASE NO. 93-80030

DOAH NO. 93-3843

JUSTIN J. LIPMAN,

Respondent.

/

FINAL ORDER

On May 17, 1994, pursuant to s. 120.57(1), Florida Statutes, the Florida Real Estate Commission heard this case to issue a Final Order.

Hearing Officer Diane Cleavinger of the Division of Administrative Hearings presided over a formal hearing on December 14, 1994. On April 21, 1994, she issued a Recommended Order, a copy of which is attached hereto as Exhibit A and made a part hereof.

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

After completely reviewing the record and being otherwise fully advised, the Commission accepts the Respondent's Exceptions as to Finding of Fact No. 6, but only as it relates to the alleged violations concerning interest-bearing accounts and commingling.

The Commission rejects the Respondent's Exceptions Nos. 2 through 8 because, in said Exceptions, the Respondent failed to cite to the record to support his position and failed to show the Hearing Officer's Findings of Fact were not supported by competent, substantial evidence.

Therefore, the Commission adopts the Hearing Officer's Findings of Fact except No. 6, which is adopted except for the reference to interest-bearing accounts and commingling. The Commission also adopts the Hearing Officer's Conclusions of Law and the Recommended Penalty.

The Florida Real Estate Commission therefore ORDERS that the license of Justin J. Lipman be revoked.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Business and 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 Business and 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 17th day of May 1994 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. Certified Mail to Eric Eggen, Esq., 3 West Garden Street Suite 347, Pensacola, FL 32501; by U.S. Mail to Hearing Officer Diane Cleavinger, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and by Hand Delivery to Steven Johnson, Esq., DBPR, Post Office Box 1900, Orlando, FL 32801, this 8th day of June 1994.

MD:JM:pep Brandon L. Moore Deputy Agency Clerk

Docket for Case No: 93-003843

Orders for Case No: 93-003843