01-004384PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Joseph E. Stalls, Jr. Status: Closed Recommended Order on Monday, May 20, 2002.

Summary: Respondent pled guilty to fraud and failed to report plea to Florida Real Estate Commission; recommend revocation of salesperson license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4384PL

)

JOSEPH E. STALLS, JR., )

)

Respondent. )

___________________ ______________)

RECOMMENDED ORDER

Pursuant to notice, the final hearing was held in this case

on January 23, 2002, in Vero Beach, Florida, before Larry J.

Sartin, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APP EARANCES

For Petitioner: Sunia Y. Marsh, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Hurston Building, North Tower

400 West Robinson Street, Suite N308

Orlando, Florida 32801

For Respo ndent: Joseph E. Stalls, Jr., pro se

1165 36th Avenue

Vero Beach, Florida 32960

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, Joseph E.

Stalls, Jr., committed the violations alleged in an

Administrative Complaint issue d by the Petitioner, Department of

Business and Professional Regulation, Division of Real Estate,

on July 19, 2000, and, if so, the penalty that should be

imposed.

PRELIMINARY STATEMENT

Petitioner issued an Administrative Complaint on July 19,

2000, agains t Respondent, alleging in Count I that Respondent

"is guilty of having been convicted or found guilty of, or

entered a plea of nolo contendere to, regardless of

adjudication, a crime which directly relates to the activities

of a licensed real estate salesp erson or involves moral

turpitude or fraudulent or dishonest dealing in violation of

Section 475.25(1)(f), Florida Statutes"; and in County II that

Respondent "is 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 Section 475.25(1)(p), Florida Statutes."

In support of Counts I and II, it is alleged in the

Administrative Complaint that, on "February 17, 1999, Respondent

pled guilty to fraud, relating to Workman's [sic] Compensation

pursuant to Section 817.034(4)(A), Florida Statutes"; that

adjudication was withheld; that Respondent was ordered to pay

restitution of $738,566.00; and that Respondent failed to notify

the Fl orida Real Estate Commission of his plea within the

statutorily required period.

Respondent timely filed a request for a formal hearing to

contest the allegations of the Administrative Complaint.

Respondent's request was filed with the Division of

Adminis trative Hearings for assignment of an administrative law

judge. The request was designated case number 01 - 4384PL and was

assigned to Administrative Law Judge Susan B. Kirkland; the case

was subsequently transferred to the undersigned.

On December 27, 2001 , Petitioner filed a Motion for Summary

Final Order and Motion for Order Relinquishing Jurisdiction.

Petitioner argued that Respondent, when first informed of the

Administrative Complaint, filed an Election of Rights form in

which he did not dispute the a llegations of material fact of the

Administrative Complaint. It was not until Petitioner

discovered that Respondent had been provided with the incorrect

Election of Rights form and a correct form was provided to

Respondent that he indicated that he disput ed the material facts

of the Administrative Complaint. Based upon these allegations,

Petitioner argued that there were in fact no disputed issues of

fact in this matter.

At best, the allegations of the Motions suggested that

Respondent had made two contra dictory assertions, with the

latest assertion being that he disputed the allegations of fact.

Therefore, it was concluded that the Motion for Summary Final

Order and Motion for Order Relinquishing Jurisdiction, absent

more, should not be granted. Despite this conclusion, efforts

were made to hold a motion hearing by telephone prior to the

final hearing to ensure that Respondent still disputed the

allegations of fact. Those efforts, however, proved

unsuccessful.

At the commencement of the final hearing, R espondent was

asked to explain why he had made contradictory assertions.

Respondent stated that he had indicated he disputed the factual

allegations of the Administrative Complaint after the

consequences of not doing so were explained to him by an

attorne y. Respondent also indicated that he continued to

dispute the factual allegations of the Administrative Complaint.

Therefore, the Motions were denied.

Despite Respondent's assertion that he disputed the

allegations of fact, upon further inquiry Responden t admitted

all of the factual allegations contained in the Administrative

Complaint with explanation. Petitioner was, therefore, informed

that, in light of Respondent's admissions, the material

allegations would be treated as admitted, but that Respondent

would be given an opportunity to present further explanation.

Petitioner requested, however, an opportunity to present its

case. The request was granted.

Petitioner presented the testimony of Jonathan Platt, an

investigator for Petitioner. Petitioner's Exhibits, numbered 1,

2, and 4, were admitted. Petitioner's Exhibit numbered 3 was

withdrawn. Respondent testified on his own behalf and

Respondent's Exhibits numbered 1 and 2 were admitted.

The one - volume Transcript of the proceedings was filed with

Pe titioner, rather than the Division of Administrative Hearings,

on February 11, 2002. After inquiry from the undersigned as to

why no transcript had been filed, the Transcript was filed the

Division of Administrative Hearings on April 3, 2002. By Order

en tered April 4, 2002, the parties were informed that their

proposed recommended orders were to be filed on or before

April 15, 2002. Neither party filed any post - hearing pleading.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professiona l

Regulation, Division of Real Estate (hereinafter referred to as

the "Department"), is the state agency charged the duty to

prosecute administrative complaints pursuant to Section 20.125,

and Chapters 120, 455, and 475, Florida Statutes (2000).

2. At the times material to this proceeding, Joseph E.

Stalls, Jr., was a licensed Florida real estate salesperson.

Mr. Stalls license number is 0125262. For his last issued

license, Mr. Stalls was an active salesperson c/o Jim See

Realty, Inc., located at 206 No rth 6th Avenue, Wauchula, Florida

33873.

3. Prior to 1999, Mr. Stalls was actively engaged in

growing, harvesting, and selling citrus. Mr. Stalls engaged in

this business through a corporation, Stalls Fruit Co., Inc.

(hereinafter referred to as "Stalls F ruit"). Mr. Stalls owned

half of the stock of Stalls Fruit and was its president.

4. Stalls Fruit elected coverage for its workers'

compensation insurance through the Florida Fruit & Vegetable

Association Self - Insurers' Fund (hereinafter referred to as t he

"Fund").

5. On or about August 21, 1998, an Information was issued

in the Circuit Court of the Ninth Judicial Circuit in and for

Orange County, Florida, charging Mr. Stalls with engaging in a

scheme to defraud the Fund "to - wit: workers' compensation

c overage from Florida Fruit & Vegetable Association Self -

Insurer's Fund pursuant to policy number 840 - 8844 - 01, as valued

by the diminution in premium payments resulting from said fraud

or fraudulent pretenses or representations, with an aggregate

value of $ 50,000 or more, in violation of Florida Statute

817.034(4)(a)."

6. On or about February 17, 1999, Mr. Stalls pled guilty

to the charge of the Information, which constitutes a felony.

7. The court, upon the entry of Mr. Stalls' plea, withheld

adjudication , ordered Mr. Stalls to serve one day in the Orange

County Jail, with credit for a day already served, placed

Mr. Stalls on Community Control for one year, followed by ten

years of supervised probation, ordered Mr. Stalls to perform 500

hours of community service within a three - year period, and

ordered that he make restitution in the amount of $738,566.00.

The requirement that Mr. Stalls make restitution has placed an

extreme financial hardship on him.

8. Mr. Stalls, unaware that he was required to inform the

Florida Real Estate Commission of his plea, and based upon his

incorrect understanding of the consequences of adjudication

being withheld, failed to report these events to the Florida

Real Estate Commission.

CONCLUSIONS OF LAW

9. The Division of Adm inistrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2000).

10. In the Administrative Complaint, the Department seeks

to impose penalties against Mr. Stalls including suspension or

revocation of his license and/or the imposition of an

administrative fine. The Department, therefore, has the burden

of proving the allegations of the Administrative Complaint by

clear and convincing evidence. D epartment of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

11. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the court defined clear and convincing evidence as

follows:

[C]lear and convincing evidence requires

that the 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 the trier of fact the firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

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

12. Section 475.25, Florida Statutes (1999), provides that

disciplinary action may be taken against a real esta te

salesperson if it is found that the salesperson has committed

certain enumerated offenses. In this matter, it has been

alleged that Mr. Stalls committed the offenses described in

Section 475.25(1)(f) and (p), Florida Statutes (1999), which

are:

(f) Has been convicted or found guilty

of, or entered a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

activities of a licensed broker or

salesperson, or involves moral turpitude or

fraudulent or dishonest dealing. . . .

. . . .

(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.

13. Mr. Stalls pled guilty to fraud, a felony. Although

the crime to which Mr. Stalls pled guilty, fraud, did not

directly relate to his activities as a licensed real estate

salesperson, it did involve fraudulent or dishonest dealing.

14. The Department proved by clear and convincing evidence

that Mr. Stalls violated Section 475.25(1)(f), Florida Statutes

(1999).

15. Mr. Stalls also failed to notify the Florida Real

Estate Commission of his plea. The Department, therefore,

provided by clear and convincing evidence that Mr. Stalls

violated Section 475 .25(1)(p), Florida Statutes (1999).

16. A range of disciplinary guidelines for violations of

Chapters 455 or 475, Florida Statutes, has been adopted in Rule

62J2 - 24.001, Florida Administrative Code.

17. For a violation of Section 475.25(1)(f), Florida

St atutes, the suggested penalty ranges from a seven - year

suspension to revocation, and an administrative fine of

$1,000.00. Rule 62J2 - 24.001(1)(g), Florida Administrative Code.

18. For a violation of Section 475.25(1)(p), Florida

Statutes, the suggested pe nalty ranges from a five - year

suspension to revocation. Rule 62J2 - 24.001(1)(q), Florida

Administrative Code.

19. Rule 62J2 - 24.001(4), Florida Administrative Code,

provides for a consideration of aggravating or mitigating

circumstance demonstrated by clea r and convincing evidence by

the petitioner or respondent in a proceeding before the Division

of Administrative Hearings. If demonstrated, the guidelines of

the rule may be deviated from. Advance notice of intent to

present evidence of aggravating or mit igating circumstances is

required to be given no less than seven days before the formal

hearing.

20. The aggravating or mitigating circumstances that may

be considered include, but are not limited to, the following:

1. The severity of the offense.

2. The degree of harm to the consumer or

public.

3. The number of counts in the

Administrative Complaint.

4. The number of times the offenses

previously have been committed by the

licensee.

5. The disciplinary history of the

licensee.

6. The sta tus of the licensee at the time

the offense was committed.

7. The degree of financial hardship

incurred by a licensee as a result of the

imposition of a fine or suspension of the

license.

8. Violation of the provision of Chapter

475, Florida Statutes , where in a letter of

guidance as provided in s. 455.225(3),

Florida Statutes, previously has been issued

to the licensee.

21. Neither party gave notice of intent to present

evidence of aggravating or mitigating circumstances in this

case. Nor did the Mr. Stalls prove by clear and convincing

evidence any mitigating circumstance other than the fact that

the imposition of an administrative fine on Mr. Stalls would be

a serve financial hardship on him due to the requirement that he

make restitution of $738 ,566.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the a final order be entered finding

that Joseph E. Stalls, Jr., violated Section 475.25(1)(f) and

(p), Florida Statutes (1999), and that his sal esperson license

be revoked.

DONE AND ENTERED this 20th day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Jud ge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of May, 2002.

COPIES FURNISHED:

Donna K. Ryan, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Hurston North Tower

400 West Robinson Street, Suite N308

Orlando, Flo rida 32801 - 1772

Joseph E. Stalls, Jr.

1165 36th Avenue

Vero Beach, Florida 32960

Jack Hisey, Deputy Division Director

Division of Real Estate

Department of Business and

Professional Regulation

Post Office Box 1900

Orlando, Florida 32802 - 1900

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 22202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.