STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION )

ex rel. JACK KING, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1776

) Progress Docket No. 2691

JOAN BARBARA CROSS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on March 25, 1976 at Miami, Florida.

APPEARANCES

For Petitioner: Richard J. R. Parkinson, Esquire

Associate Counsel

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Irwin S. Gars, Esquire

3550 Biscayne Boulevard Miami, Florida

By Administrative Complaint filed August 21, 1975 the Florida Real Estate Commission ex rel. Jack King, seeks to revoke, suspend or otherwise discipline Joan Barbara Cross, Respondent, on the grounds that she obtained her registration by means of fraud, misrepresentation and concealment in violation of Section 475.25(2) F.S., and that by failing to accurately answer question 9 on her application it appears that she does not have the necessary qualification of honesty, truthfulness, trustworthiness and good character to retain her registration. Four exhibits were submitted by Petitioner, and Respondent testified in her own behalf.

FINDINGS OF FACT

1. Respondent, Joan B. Cross, is a registered real estate salesperson holding certificate number 0018497. On her application for registration in November, 1972, in answer to question 9 pertaining to having been arrested for or charged with the commission of an offense against the laws of the municipality or state, she answered "yes". She completed the "If yes, state details in full" question with "careless driving, 7-27-69 DWI 1970".

   
   

2. Exhibit 2, Certified Copy of Court Record, shows that on May 6, 1965 Respondent was convicted of disorderly conduct and fined $15.00.

3. Exhibit 3 and 4, Certified Records from the Criminal Court of Record, show that on June 9, 1969 Respondent was charged with, and found guilty of, unlawful possession of marijuana and of contributing to the dependency of minors. Adjudication of guilt was withheld and Respondent was placed on probation for 18 months.

   
   

4. Testifying in her own defense Respondent acknowledged both offenses. With respect to the disorderly conduct charge, she stated she forgot to include that on her application. Following a lunch birthday party the group retired to a bar and when they became too noisy the police came and took them to the police station.

   
   

5. With respect to the charges of possession of marijuana and barbiturates she testified that she was represented by counsel who advised her after the trial that she was not adjudicated and that she could forget the incident. She testified that she understood all record of this incident had been expunged, and that she could forget it. She also testified she didn't fully understand withholding adjudication of guilt. In this regard it is noted that she pleaded guilty to possession of marijuana and nolo contendere to the charge of contributing to the dependency of minors.

   
   

   CONCLUSIONS OF LAW

   
   

6. Respondent is charged with having obtained her registration by means of fraud, misrepresentation, or concealment. Section 475.25(2) F.S. provides in pertinent part:

   
   

   "The registration of a registrant shall be revoked if such registration, or a certi- ficate issued thereon is found to have been obtained by the registrant by means of fraud, misrepresentation, or concealment, . . ."

   
   

7. Section 475.17 F.S. in listing the qualifications of applicants for registration provides in part:

   
   

   "If it shall be made to appear . . . that the applicant has been guilty of conduct or practice in this state which would have been grounds for revoking or suspending regi-

   stration under this chapter had the registrant been registered, the application shall be deemed to be not qualified "

   
   

8. Grounds for suspension of a license are contained in Section 475.25(1)

   1. which provides in part that a registration may be suspended if the registrant has:

      
      

      "(a) Been guilty of fraud, misrepresenta- tion, false promises, false pretenses, dishonest dealings, trick, scheme or device, culpable negligence, or breach of trust in any business transaction; or

      * * *

      1. Violate any of the provisions of this chapter or any lawful order, rule or regu-

         lation made or issued under the provision of this chapter; or

      2. Been guilty of a crime against the laws of this state or any other state or of the United States involving moral turpitude, or fraudulent or dishonest dealing;

   
   

9. Thus one ground for revocation is that registrant obtained license by concealing the commission of an offense which would have disqualified her had the facts involving the offenses been known. If the offense of possession of marijuana in 1968 involved moral turpitude the application of respondent for registration could have been denied.

   
   

   "Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or man to society. It may also be defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves a question of intent." State ex rel. Tullidge v.

   Hollingsworth, 146 So. 660 (Fla. 1933).

   
   

10. The standard is public sentiment and it changes as the moral opinions of the public change. 21 Am Jur 2d Crim. Law Section 24 and cases therein cited.

    
    

11. Drug related offenses normally involve moral turpitude. Most of them are felonies and, at the time Respondent was charged with this violation, a felony was involved. The fact that possession of less than 5 grams of marijuana today is not a felony in Florida does not necessarily mean it does not involve moral turpitude. it is the inherent nature of the offense which is determinative; not whether the legislature has designated it as a felony or misdemeanor.

    
    

12. Here Respondent bad been charged with (and found guilty of) an offense involving moral turpitude which could have constituted grounds for denying her application for registration as a real estate salesperson. By failing to show this charge on her application she concealed a fact that could have resulted in the denial of her application. It follows that she obtained her license by concealment, and, pursuant to Section 475.25(2) F.S., this constitutes grounds for revocation of her registration. It is therefore,

RECOMMENDED that the registration of Joan Barbara Cross as a real estate salesperson be revoked.

DONE and ORDERED this 23rd day of April, 1976 in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

Docket for Case No: 75-001776

Orders for Case No: 75-001776