STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) CHARLES F. BORER, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1964

)

RICHARD R. VILLANUEVA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, in Suite 103, Southeastern Building, 3314 Henderson Boulevard, Tampa, Florida, at 9:30

1. on April 7, 1977.

   
   

   APPEARANCES

   
   

   For Petitioner: Manuel E. Oliver, Esquire

   Florida Real Estate Commission 2699 Lee Road

   Winter Park, Florida 32789

   
   

   For Respondent: William F. Garcia, Esquire

   512 East Kennedy Boulevard Tampa, Florida 33602

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found.

   
   

   1. Respondent Villanueva was registered as a real estate salesman on July 12, 1974. For the registration year October 1, 1976, through September 30, 1977, his status changed to a nonactive salesman.

      
      

   2. Upon respondent's plea of guilty to the offense of possession of marijuana in Case No. 74-725C, the Circuit Court of Hillsborough County entered an order on June 7, 1974, withholding adjudication of guilt and placing respondent on probation for a period of one year.

      
      

   3. By an administrative complaint filed on October 7, 1976, the Florida Real Estate Commission charged respondent with being guilty of a crime of moral turpitude, fraudulent or dishonest dealing in violation of Florida Statutes s475.25(1)(e). The matter was referred to the Division of Administrative Hearings for a hearing, and the undersigned was duly designated as the Hearing Officer.

   4. On March 31, 1977, the Circuit Court of Hillsborough County entered an order on respondent's motion to withdraw his plea of guilty previously entered in Case No. 74-725C. By this Order, it was adjudged that the plea of guilty previously entered "be and the same is hereby stricken from the records and shall be of no force and effect and in lieu thereof a plea of nolo contendere is accepted in this cause." The Court reconsidered, and reaffirmed its action taken with regard to sentence.

      
      

      CONCLUSIONS OF LAW

      
      

   5. Respondent is charged by petitioner with a violation of Florida Statutes s475.25(1)(e) by having been guilty of a crime involving moral turpitude, or fraudulent or dishonest dealing. The issues presented are thus whether petitioner carried its burden of proving that respondent had been guilty of a crime and, if so, whether that crime involves moral turpitude or fraudulent or dishonest dealing.

      
      

   6. The facts of this case illustrate that respondent plead guilty to the offense of possession of marijuana and the court withheld adjudication of guilt and placed respondent on probation for a period of one year. Over twenty-one months later, and some five months after petitioner's administrative complaint was filed in this proceeding, respondent's motion to withdraw his guilty plea was granted and the Circuit Court accepted in its stead a plea of nolo contendere, while reaffirming its previous order with regard to sentencing. By the March 31, 1977, order, the present status of Case No. 74-725C is the entrance of a nolo contendere plea and an order withholding adjudication of guilt and placing respondent on probation for one year. The undersigned concludes that this evidence is sufficient to illustrate that respondent has "been guilty of a crime" within the meaning of Florida Statutes s475.25(1)(e).

      
      

   7. This then leaves the issue of whether the offense of possession of marijuana, by itself and without any evidence as to the amount involved, is a crime involving moral turpitude or fraudulent or dishonest dealing. There was no evidence adduced at the hearing nor did petitioner argue that said offense constitutes a crime involving fraudulent or dishonest dealing.

      
      

   8. Moral turpitude has been defined as anything done contrary to justice, honesty, principle or good morals. Not every action prohibited by statute constitutes a crime of moral turpitude. The concept of a crime involving moral turpitude connotes something more than "illegal" or "criminal". A crime involves moral turpitude if it is an act of baseness, vileness or depravity in the private and social relations or duties owed by man to man or by man to society. The moral turpitude must exist entirely apart from the fact that some statute has been violated. In determining whether or not an offense involves moral turpitude, the standard is public sentiment, which standard changes as the moral opinions of the public change. 9 Fla. Jur., "Criminal Law," s8; 3 Am. Jur. 2d, "Aliens and Citizens," s80; 21 Am. Jur. 2d, "Criminal Law," s24.

      
      

   9. The cases discovered by the undersigned which have declared an act to be one involving moral turpitude have, without exception, pertained to acts which constitute a fraud or other wrongdoing either upon another person or the government. In federal cases pertaining to the issue of whether moral turpitude is involved in liquor or narcotics law violations, the courts have often found moral turpitude because of the element of fraud contained in the act of depriving the government of tax revenues. Indeed, liquor law violations during the prohibition era did not necessarily involve moral turpitude. 23 ALR Fed

      480, s13(c). Similarly, the courts of Florida have recognized a distinction, insofar as moral turpitude is concerned, between the offenses of possession of lottery tickets and bookmaking. Everett v. Mann, 113 So.2d 758 (Fla. App. 2nd, 1959) and Carp v. Florida Real Estate Commission, 211 So.2d 240 (Fla. App 3rd, 1968). Also see Jenkins v. Beary, 241 So.2d 866 (Fla. App. 1st, 1970)

      
      

   10. We are here concerned with the act of mere possession of marijuana. No evidence was adduced at the hearing concerning the amount possessed or the circumstances surrounding the charge of possession. Absent such evidence, no inference can be drawn as to respondent's intent to distribute the marijuana to others or to engage in illicit drug traffic or to deprive the government of revenue. It is difficult to relate the offense of possession of marijuana to the terms "baseness", "vileness" or "depravity". These words are defined in terms of corruption, vulgarity, filth, abhorrence and contemptuous conduct.

       
       

   11. While a determination of whether a crime involves moral turpitude is necessarily a subjective one, it is not without sufficient standards. Those standards are set forth in the manner in which moral turpitude has been defined by the courts, as discussed above. As noted therein, the standard is public sentiment which changes as the moral opinions of the public change. There can be no doubt, as evidenced by the nationwide change in state laws during the past four to five years, that the moral opinions of the public have changed with regard to the offense of possession of marijuana. It cannot be concluded by this Hearing Officer that it is the public's moral opinion that the offense of mere possession of marijuana is an act of baseness, vileness, or depravity in the private and social duties owed by man to man or by man to society. It is therefore found that respondent has not been guilty of a crime involving moral turpitude or fraudulent or dishonest dealing within the meaning of Florida Statutes s475.25(1)(e).

       
       

   12. The contentions raised by respondent with regard to the application of the Statute of limitation and/or the doctrine of laches have been considered and are concluded to be without merit.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the administrative complaint filed by petitioner on October 7, 1976, be dismissed.

Respectfully submitted and entered this 12th day of May, 1977, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1977.

COPIES FURNISHED:

Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

William F. Garcia, Esquire

512 East Kennedy Boulevard Tampa, Florida 33602

================================================================= AGENCY FINAL ORDER

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

August 4, 1977

TO: Renata M. Hendrick, Supervisor

FM: Manuel E. Oliver, Staff Attorney, Legal Section RE: PD 3024 Richard R. Villanueva

Registration Certificate No. 0136894

Attached please find registration certificate in the name of Richard R. Villanueva, No. 0136894.

The effective date of the Final Order is August 11, 1977, however, this certificate was received by us on Monday, August 1, 1977, and therefore his suspension period will begin on that date, and end on September 1, 1977 at which time he may re-apply for registration with the Florida Real Estate Commission.

Also attached for your reference and record is a copy of the Final Order filed by the Commission on July 12, 1977.*

* NOTE: The Attachment is not on file with this Division and therefore not a part of this ACCESS document. The July 12, 1977 date has been used as the Agency Final Order Issue date in the ACCESS index.

Docket for Case No: 76-001964

Orders for Case No: 76-001964