STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2960

)

SHARLA SPEAKMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice; the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above styled case on April 22, 1985 in Tallahassee, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Staff Attorney

Department of Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: No Appearance

By administrative complaint dated April 3, 1984 and filed with the Division of Administrative Hearings on August 20, 1984, petitioner seeks to revoke, suspend or otherwise discipline the license of Sharla Speakman as a real estate salesman in the State of Florida.

As grounds therefor, it is alleged that respondent was arrested May 14, 1983 and on December 19, 1983, entered a plea of nolo contendere to the offense of prostitution with adjudication being withheld and that by reason of such plea has been convicted of a crime involving moral turpitude in violation of Section 475.25(1)(f), Florida Statutes (1983).

Respondent filed a motion to dismiss April 26, 1984. Petitioner opposed said motion in writing dated June 4, 1984. This motion was considered at the hearing and was DENIED.

At the request of petitioner, and pursuant to Rule 22I- 6.20, Florida Administrative Code, Section 20.30, Florida Statutes, (1983) and Chapters 120,

455 and 475, Florida Statutes (1983) were officially recognized.

In support of the charges, petitioner offered Exhibits 1-4 into evidence which were received without objection from the respondent. Petitioner did not

offer the testimony of any witnesses. Neither respondent nor respondent's counsel appeared. The undersigned, in response to the failure of the respondent to appear and the lack of any notice of intent to absent herself from the hearing she had requested, telephoned her counsel. The undersigned was advised by the respondent's counsel that respondent had elected to stand mute and not appear at the hearing.

The petitioner submitted post hearing Proposed Findings of Fact and Conclusions of Law pursuant to Section 120.57(1)(b)(4), Florida Statutes (Supp. 1984). A ruling on each Proposed Findings of Fact has been made directly or indirectly in this recommended order, except where such Proposed Findings of Fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

FINDINGS OF FACT

Upon consideration of the documentary evidence adduced at the hearing, the following facts were found:

1. At all times relevant hereto, respondent was licensed as a real estate salesman in the State of Florida having been issued license No. 0204657 which license was inactive and scheduled to expire on March 31, 1983. Respondent's license was renewed on April 1, 1983.

   
   

2. On or about May 13, 1983, on Information filed by the office of the State Attorney of the 12th Judicial Circuit in the State of Florida, respondent was charged with the commission of prostitution, lewdness or assignation; contrary to Section 796.07, Florida Statutes.

   
   

3. Thereafter, on December 19, 1983, respondent made her appearance in the County Court of Sarasota County, Florida, before the Honorable Robert Stahlschmidt, County Court Judge, and entered a plea of no1o contendere to the charge of prostitution.

   
   

4. On the same day, Judge Stahlschmidt, withheld adjudication; sentenced respondent to sixty (60) days in the county jail which was suspended; fined respondent $340, including court costs; placed respondent on supervised probation for a period of one (1) year under the supervision of the Salvation Army Correction Division upon the condition that she serve 50 hours of community services and not be involved in any acts of prostitution.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. The conviction of the alleged misconduct of which the respondent is accused purportedly violates Section 475.25(1)(f), Florida Statutes (1983) which is quoted below:

   
   

   1. The Commission may deny an application for licensure, registration, or permit, or renewal thereof; may suspend a license or permit for a period not exceeding 10 years; may revoke a license or permit; may impose an administrative fine not to exceed $1,000 for

      each count or separate offense; and may issue a reprimand, or any or all of the foregoing, if it finds that the licensee, permittee, or applicant:

      
      

      (f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly regulates to the activities of a licensed broker or salesman or involves moral turpitude or

      fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph.

      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 face evidence of such guilt. (Emphasis supplied)

      
      

7. The statutes clearly provide that a conviction of a crime involving moral turpitude can lead to the revocation, or suspension of a real estate license or other disciplinary action against the real estate license. The statutes are clear that an entry of a plea of nolo contendere shall be considered a conviction for purpose of Section 475.25(1)(f), Florida Statutes (1983).

   
   

8. Here, the record is clear that respondent entered a plea of nolo contendere to the crime of prostitution and for the purpose of this statute has been convicted of the crime of prostitution.

   
   

9. Does the crime of prostitution involve moral turpitude? The Court in Pearl v. Florida Board of Real Estate, 395 So2d 189, 191 (3 DCA 1981), after analyzing the definition of moral turpitude as set forth by the Supreme Court of Florida in State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So 660, 661, (Fla. 1933), found "that moral turpitude involves duties owed by man to society as well as acts `contrary to justice, honesty, principal or good morals.'"

   
   

10. A review of the cases in this jurisdiction relating to crimes which have been held to involve moral turpitude did not reveal any case which held that prostitution was a crime of moral turpitude. However, in reviewing cases in other jurisdictions the Court in City of Seattle v. Jones, 475 P. 2d 790, 794 (Wash. Ct. App. 1970), affirmed 488 P.2d 750 (Wash. 1971) made a specific finding that "[p]rostitution is unquestionably a crime involving moral turpitude" and defined moral turpitude in terms very similar to those expressed in Pearl v. Florida Board of Real Estate 394 So2d 189, 191 (3 DCA 1981).

    
    

11. The petitioner has met its burden of proof that respondent violated Section 475.25(1)(f), Florida Statutes (1983) by being convicted of the crime of prostitution which involves moral turpitude. Accordingly, petitioner has established grounds for disciplinary action.

    
    

12. In making a recommendation for the penalty to be imposed, mitigating circumstances should be considered. As the Supreme Court of Florida pointed out in Pauline v. Borer, 274 So2d 1, 3 (Fla. 1973) the penalty of suspension "should always be sparingly and cautiously used and directed at the dishonest and unscrupulous broker, i.e., one who cheats, swindles or defrauds the general

public." The respondent has not been charged with cheating, swindling or defrauding the general public. Here, the respondent was involved in an apparent isolated incident for which she paid a fine, gave to the community 50 hours of her time and was required to serve 1 year on probation. Additionally, respondent's action did not relate to or involve her real estate activities.

RECOMMENDATION

Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the respondent be found guilty of violation of Section 475.25(1)(f), Florida Statutes, 1983. For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of REPRIMAND to the respondent.

Respectively submitted and entered this 17th day of May, 1985 in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 17th day of May, 1985.

COPIES FURNISHED:

James H. Gillis, Esquire Staff Attorney

Department of Professional Regulation Division of Real Estate

400 West Robinson Street

P.O. Box 1900

Orlando, Florida 32802

Gerald C. Surfus, Esquire

150 East Avenue South Sarasota, Florida 33577

Sharla Speakman

Post Office Box 4202 Sarasota, Florida 33578

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Harold Huff Executive Director

Department of Professional Regulation

Division of Real Estate

400 W. Robinson Street

P.O. Box 1900

Orlando, Florida 32802

Docket for Case No: 84-002960

Orders for Case No: 84-002960