Opinion
3D23-1063
03-13-2024
Alan Goldstein, Appellant, v. Department of Business and Professional Regulation, Florida Real Estate Commission, Appellee.
Alan Goldstein, in proper person. Brooke Elizabeth Adams, Chief Appellate Counsel (Tallahassee), for appellee.
Not final until disposition of timely filed motion for rehearing.
An Appeal from the Department of Business and Professional Regulation, Florida Real Estate Commission. Lower Tribunal No. 2022-039192
Alan Goldstein, in proper person.
Brooke Elizabeth Adams, Chief Appellate Counsel (Tallahassee), for appellee.
Before EMAS, SCALES and BOKOR, JJ.
EMAS, J.
INTRODUCTION
Alan Goldstein appeals a final order of the Department of Business and Professional Regulation, Florida Real Estate Commission, revoking his real estate broker license. Goldstein contends that the Department was without jurisdiction to impose discipline because his license had expired when the administrative complaint was filed. Alternatively, Goldstein contends he was denied due process, alleging he never received the administrative complaint and subsequent pleadings. We find no merit in either argument, and affirm.
FACTS
In 2021, Goldstein, a licensed real estate broker, was charged in Miami-Dade County with second-degree grand theft, a second-degree felony. On August 2, 2022, Goldstein pleaded nolo contendere to the charge and was placed on probation. Days later, Goldstein filed a Criminal Self-Reporting Document with the Department notifying it of his plea. In that document, Goldstein listed his mailing address, telephone number, and email address. On December 22, 2022, the Department filed an administrative complaint against Goldstein pursuant to section 475.25(1)(f), Florida Statutes (2022), which provides in pertinent part:
See § 812.014(2)(b)1, Fla. Stat. (2022) (providing that an offender commits grand theft in the second degree if the property stolen is valued at $20,000 or more, but less than $100,000).
The commission . . . may revoke a license, registration, or permit . . . if it finds that the licensee, registrant, permittee, or applicant . . . [h]as 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 sales associate, or involves moral turpitude or fraudulent or dishonest dealing. 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.
A Notice of Rights was attached to the complaint, advising Goldstein of the various rights to which he was entitled, including the right to request a hearing. The Notice of Rights further advised that "if Respondent fails to request a hearing within twenty-one (21) days of the receipt of an agency pleading, Respondent waives the right to request a hearing.... "
The complaint and Notice of Rights were sent to Goldstein via certified mail, regular mail and email-specifically, to the same physical address and email address listed in the Criminal Self-Reporting Document. The Department also attempted to notify Goldstein of the complaint by publishing a notice on its website for four consecutive weeks, publishing a notice of action in Miami-Dade County, and placing several phone calls to Goldstein's phone number provided in the Self-Reporting Document. When Goldstein failed to respond to all of these notification attempts, the Department filed a motion asserting it had made all reasonable efforts to provide reasonable notice to Respondent of the action being taken, and requesting that the Commission find Goldstein had waived his right to a hearing. The Department sent a copy of the motion and notice of hearing to Goldstein via regular mail and email.
On April 19, 2023, the Commission granted the Department's request to proceed by waiver hearing, see section 120.57(2), Fla. Stat. (2022), and received evidence introduced by the Department in support of the Department's request for revocation of Goldstein's license. On May 12, 2023, the Commission issued its final order, revoking Goldstein's real estate broker's license and ordering him to pay an administrative fine of $2,000 and costs of investigation and prosecution of $363. Goldstein filed no paper or pleading and failed to appear at the hearing.
Goldstein filed his pro se notice of appeal on June 14, 2023. This appeal followed.
The notice of appeal filed by Goldstein contains his signature, and below the signature line his physical address, email address and phone number- the very same physical address, email address and phone number he provided in the Criminal Self-Reporting Document and relied upon by the Department in its attempts to notify him of proceedings, pleadings, motions and notices.
ANALYSIS AND DISCUSSION
Goldstein contends that because his license expired on September 30, 2021-before the administrative complaint was filed-the Commission was "without jurisdiction" to revoke his real estate broker's license. This contention is wholly without merit; indeed Goldstein cites no statute, rule or case in support of the proposition. Section 455.271(11), Florida Statutes (2022), expressly provides:
The status or a change in status of a licensee shall not alter in any way the board's, or the department's when there is no board, right to impose discipline or to enforce discipline previously imposed on a licensee for acts or omissions committed by the licensee while holding a license, whether active, inactive, or delinquent.(Emphasis added).
Here, Goldstein's license was still active when he was arrested for grand theft (on September 27, 2021) and had become "involuntarily inactive" at the time the Department filed its petition in August of 2022. See § 475.01(1)(g), Fla. Stat. (2022) ("'Involuntarily inactive status' means the licensure status that results when a license is not renewed at the end of the license period prescribed by the department.") Stated differently, section 455.271(11) authorizes the Commission to revoke Goldstein's license while it was inactive, and the status of the license (active, inactive or delinquent) affects neither the scope of the Commission's authority nor its jurisdiction to act.
Goldstein also contends he did not receive a copy of the pleadings, and that the Commission therefore violated his due process rights. This contention is likewise without merit, and due process does not require notifying someone who has ignored or avoided notice or has otherwise refused to make himself available to receive notice.
The record demonstrates that the Department properly attempted to notify Goldstein of the complaint and subsequent proceedings and pleadings pursuant to section 455.275(3)(a), Florida Statutes (2022):
[W]hen an administrative complaint is served on a licensee of the department, the department shall provide service by regular mail to the licensee's last known address of record, by certified mail to the last known address of record, and, if possible, by e-mail.
As indicated earlier, the Department relied upon the address, email address, and phone number provided by Goldstein himself when selfreporting his plea to the grand theft charge in August of 2022. The Department sent the complaint and attachments by regular mail and certified mail to Goldstein's physical address, as well as to his email address. When Goldstein failed to respond, the Department attempted to notify Goldstein pursuant to section 455.275(3)(b):
If service, as provided in paragraph (a), does not provide the department with proof of service, the department shall call the last known telephone number of record and cause a short, plain notice to the licensee to be posted on the front page of the department's website and shall send notice via e-mail to all newspapers of general circulation and all news departments of broadcast network affiliates in the county of the licensee's last known address of record.
The Department complied in every respect with the statutory notice requirements, satisfying due process concerns. See Shelley v. State, Dep't of Fin. Servs., 846 So.2d 577 (Fla. 1st DCA 2003) (holding that the use of certified mail meets state and federal due process requirements in administrative agency actions). See also Dusenbery v. United States, 534 U.S. 161, 162 (2002) (rejecting the very argument advanced here, and observing that due process requires that "a State must attempt to provide actual notice, not that it must provide actual notice.") (citation omitted) (alteration in original); Mullane v. Cent. Hanover Bank &Tr., Co., 339 U.S. 306, 314 (1950) (stating that due process requires notice be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections").
This court has already held that the statutory framework at issue satisfies due process concerns, see Rodriguez v. Dep't of Bus. and Prof. Reg., 326 So.3d 796 (Fla. 3d DCA 2021), and the Department fully complied with the notice requirements imposed by statute.
We observe that, in his pro se initial brief, Goldstein merely offers the bare, unelaborated statement that he "never received any notice at all." We reject Goldstein's argument which, at bottom, asks this court to hold that the
Department must provide actual notice to him. Instead, due process requires that the Department must attempt to provide actual notice, which it did, and in doing so took such action as was reasonably calculated under the circumstances to apprise Goldstein of the action and afford him an opportunity to be heard. Dusenbery, 534 U.S. at 162; Mullane, 339 U.S. at 314; see also Keys Citizens For Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 949 (Fla. 2001) (observing that "the additional procedural safeguard of actual notice urged by Citizens would add a tremendous burden and expense . . . and would have little value").
Affirmed.