STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

On November 9, 1995, the Respondent filed a motion to relinquish jurisdiction that represented there are no material facts in dispute to be resolved by an administrative hearing. After the Petitioner filed a response to the motion, an order was entered that provided:

1. The parties are directed to confer and to report to the undersigned, in writing, as to whether a stipulation can be entered as to the authenticity and accuracy of the documents attached to the motion.

2. Petitioner shall also state with particularity those factual matters which remain in dispute (to be resolved by a formal hearing) should the authenticity and accuracy of the documents attached to the motion not be disputed.

The parties filed responses which have been considered in the preparation of this order. Rule 60Q-2.016, Florida Administrative Code, provides that whenever ruling on a motion is dispositive of a matter it shall be incorporated in a recommended order.

APPEARANCES

For Petitioner: William J. Haley, Esquire

BRANNON, BROWN, HALEY, ROBINSON & BULLOCK, P.A.

10 North Columbia Street Post Office Box 1029

Lake City, Florida 32056-1029

For Respondent: Manuel E. Oliver

Assistant Attorney General Suite 107 South Tower

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

The central issue in this case is whether there is a disputed issue of material fact to be resolved by an administrative hearing.

PRELIMINARY STATEMENT

This case began on September 19, 1995, when the Florida Real Estate Commission (FREC) entered an order denying licensure to the Petitioner, Marilyn Mirus. By letter dated October 5, 1995, the Petitioner challenged that denial and requested a formal administrative hearing to establish her entitlement to licensure. The case was forwarded to the Division of Administrative Hearings for formal proceedings on October 16, 1995.

On November 9, 1995, the Respondent filed a motion to relinquish jurisdiction that represented there are no material facts to be resolved by an administrative hearing as Petitioner agreed, in connection with a prior disciplinary case, to the permanent revocation of her real estate license.

Documents supporting the allegations of the motion were attached.

Petitioner does not challenge the authenticity or accuracy of the documents relied on in Respondent's motion. Instead, Petitioner maintains that factual matters do remain in dispute as set forth below.

FINDINGS OF FACT

1. On October 30, 1991, the Department of Professional Regulation, Division of Real Estate, issued an administrative complaint against Marilyn Mirus, the Petitioner herein. [Administrative complaint attached to motion to relinquish jurisdiction as Exhibit A, not disputed by Petitioner]

   
   

2. The administrative complaint alleged three violations of Chapter 475, Florida Statutes: having been convicted or found guilty, regardless of adjudication, of a crime in violation of Section 475.25(1)(f), Florida Statutes; having been found guilty of a course of conduct which shows dishonesty in violation of Section 475.25(1)(o), Florida Statutes; and having failed to inform the FREC of having pled nolo contendere or having been convicted of a felony within thirty days of such conduct in violation of Section 475.25(1)(p), Florida Statutes. [Exhibit A to the motion, not disputed by Petitioner]

   
   

3. The allegations arose as a result of a criminal case in Broward County, Florida (Case no. 91-4894CF) wherein the Petitioner was charged with 31 counts of grand theft. In connection with those charges, the Petitioner pled nolo contendere and received a five year probation. Additionally, the court withheld adjudication of guilt for all counts. [Exhibit A to the motion, not disputed by Petitioner]

   
   

4. As an additional condition of the sentence, Petitioner was required to make restitution in the amount of $69,834.50 to the alleged victim. [Exhibit A to the motion, not disputed by Petitioner]

   
   

5. To resolve the charges of the administrative complaint, Petitioner entered into a stipulation attached to the motion to relinquish jurisdiction as Exhibit B. [Not disputed by Petitioner]

6. The stipulation provided, in pertinent part:

   
   

   1. Respondent [Petitioner herein] neither admits nor denies all the allegations of essential fact contained in the Administrative Complaint.

   2. Respondent admits that the allegations of fact contained in the Administrative Complaint, if true, support a finding of a violation of the Real Estate Practice Act.

   3. There is currently pending in the Florida Fourth District Court of Appeal an appeal (hereafter, "the Appeal") of the Order dated March 2, 1992 (hereafter, "the Order"), denying the Respondent's Motion to Vacate and Set Aside Plea in Case No.

      91-4894, Division FM, in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida.

      STIPULATED DISPOSITION

      * * *

      8. The Respondent's license shall be suspended beginning on the filing date of the Final Order approving this Stipulation. Thereafter, the suspension shall remain in effect during the pendency of the Appeal. Immediately upon the conclusion of the Appeal, the Respondent's license shall be automatically and permanently

      revoked unless the Order is reversed as the direct and immediate result of the Appeal. In the event of such reversal, the suspension shall be lifted.

      * * *

      13. The Respondent expressly waives all notice requirements and right to seek judicial review of or to otherwise challenge or contest the validity and enforcement of this Stipulation and resulting Final Order of the Commission adopting and incorporating this Stipulation. [Emphasis added.]

      
      

   4. A final order accepting the stipulation entered into by the parties was adopted on May 19, 1992. [Attached to the motion to relinquish jurisdiction as Exhibit C, not disputed by Petitioner]

      
      

   5. The District Court of Appeal rendered a decision on April 21, 1993, which denied Petitioner's request to set aside the nolo contendere plea. Her requests for a rehearing on that decision were also denied. [Attached to the motion to relinquish jurisdiction as Exhibits D and E, not disputed by Petitioner]

      
      

   6. Petitioner maintains [Response to order issued by Hearing Officer on November 29, 1995] she should be able to challenge the denial of licensure because of the following disputed matters:

      
      

      1. Did Petitioner commit the crimes of which she was accused, and to which she plead nolo contendere?

      2. The Courts have held that when there is a plea of nolo contendere filed, it raises the presumption that a crime had been [sic] convicted.

         However, the Courts have held that the Licensee has the opportunity to rebut this presumption and assert his or her innocence of the underlying criminal charges together with what the reasons and circumstances were to show why the plea of

         nolo contendere was raised. See Ayala v. Department of Professional Regulations, 478 So.2d 116 (1st DCA Fla. 1985) and Son v. Florida Department of Professional Regulation, Division of Real Estate, 608 So.2d 75 (3rd DCA Fla. 1992).

      3. Was the Petitioner advised as to what the effect of her plea of nolo contendere would have

         as the same relates to the revocation of her license by the Department of Business and Professional Regulations?

      4. What was the effect of revocation of one's Real Estate License on April 7, 1992, at the time the stipulation was entered into by Petitioner?

      5. Has the effect of a revocation on a license changed from April 7, 1992 [to] today, if so, was

         her (sic) advise proper to enter into the Stipulation had she known what the law was today as it relates

         to the law of 1992? (It wasn't until October 1, 1992 that revocation became permanent. Prior to that date the laws of Florida were silent as to the term of a revocation. Section 455.227(4) F.S. 1992.)

      6. Was the adjudication withheld and was the file sealed as it relates to the criminal charges which were the subject of the original complaint against Marilyn Mirus?

      7. Is the Petitioner now held accountable for a crime that under the Florida law for all intents and purposes she did not commit nor was she even charged with such a crime?

         
         

   7. Petitioner has not challenged the authenticity or accuracy of the documents attached to the motion to relinquish jurisdiction.

      
      

      CONCLUSIONS OF LAW

      
      

   8. Section 120.57, Florida Statutes, provides, in pertinent part:

      
      

      The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency, unless

      such proceedings are exempt pursuant to subsection (5). Unless waived by all parties, subsection (1) applies whenever the proceeding involves a disputed issue of material fact. Unless otherwise agreed, subsection (2) applies in all other cases.

      (1) FORMAL PROCEEDINGS.

      (a) A hearing officer assigned by the division shall conduct all hearings under this subsection. [Emphasis added.]

      
      

   9. Petitioner has correctly assessed the effects of a nolo contendere plea to a criminal act with regard to subsequent disciplinary proceedings.

      Pursuant to the Ayala decision, a licensee or an applicant for licensure may explain the extenuating circumstances that led to such a plea. In this case, however, Petitioner waived that right by entering into the stipulation that resolved the administrative action previously initiated against this party. The time for raising the Ayala claim passed with the execution of the stipulation.

      
      

   10. Presumably Petitioner was represented by counsel when the plea was entered in the criminal matter and when the stipulation was executed resolving the administrative complaint. The Division of Administrative Hearings does not have jurisdiction to set aside the stipulation.

       
       

   11. The plain and unambiguous language of the stipulation tied the administrative penalty to the outcome of the criminal appeal. Further, the stipulation stated that the Petitioner waived all right to seek judicial review of or to otherwise challenge or contest the validity and enforcement of the stipulation and resulting final order. That is expressly what Petitioner now seeks to do.

       
       

   12. Each and every alleged disputed "fact" raised by Petitioner in this cause is merely a restatement of the legal rights she had at the time of the disciplinary case or an equitable argument of why she should be allowed to explain the nolo plea. Each is a legal argument, not a statement of disputed fact.

       
       

   13. To allow the Petitioner to maintain, as she now alleges, that she committed no crime and should be able to explain the plea as an economic convenience, would place the Respondent in a position of proving acts that allegedly occurred several years ago. A position which the stipulation entered into by the parties sought to avoid by its clear language. The stipulation provided that upon the conclusion of the criminal appeal, Petitioner's license would be permanently revoked. This was a contractual obligation of the agreement which would automatically take effect unless the order which denied the request to set aside the plea were reversed. Petitioner accepted this resolution and cannot now seek another remedy.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Florida Real Estate Commission enter a final order dismissing the request for hearing filed by Petitioner.

DONE AND ENTERED this 8th day of January, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH, 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 January, 1996.

COPIES FURNISHED:

Manuel E. Oliver

Assistant Attorney General Suite 107 South Tower

400 West Robinson Street Orlando, Florida 32801

William J. Haley, Esquire BRANNON, BROWN, HALEY, ROBINSON & BULLOCK, P.A.

10 North Columbia Street

Lake City, Florida 32056-1029

Henry Solares Division Director

Department of Business

and Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802-1900

Lynda L. Goodgame General Counsel Northwood Centre

1940 North Monroe Street 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.

Docket for Case No: 95-005064

Orders for Case No: 95-005064