STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-2183

)

BRUCE E. WALKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on May 14, 1987, in Tampa, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Gardner W. Beckett, Jr., Esquire

123 Eighth Street, North

St. Petersburg, Florida 33701 BACKGROUND AND PROCEDURAL MATTERS

In an Administrative Complaint filed on April 8, 1986, Petitioner alleged in pertinent part, that Respondent is:

"Count I ... guilty of having been convicted or found guilty of a crime involving moral turpitude or fraudulent or dishonest dealing all in violation of Subsection 475.25(1)(f), Florida Statutes."

"Count II ... guilty of not having informed the Florida Real Estate Commission in writing within thirty (30) days of having pled guilty of having been convicted of a felony and, therefore, is in violation of Subsection 475.25(1)(p), Florida Statutes."

This proceeding commenced when Respondent made his timely request for formal hearing.

At hearing, Petitioner presented the testimony of two witnesses, including Respondent. Respondent testified in his own behalf, through cross-examination. Each party submitted three exhibits, all of which were received without objection.

After hearing, both parties submitted Proposed Recommended Orders. These have been carefully considered in the preparation of this order, and specific rulings on the Proposed Findings of Fact are found in the attached Appendix.

ISSUES

In his Proposed Recommended Order, counsel for Petitioner concedes that the crime to which Respondent pleaded guilty is classified as a federal misdemeanor, not a felony. For that reason, Count II of the Complaint is no longer in issue. The remaining issue for determination is whether the crime to which Respondent pleaded guilty involves moral turpitude or fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes, and if so, what disciplinary action is appropriate.

FINDINGS OF FACT

1. The following Findings of Fact are adopted, verbatim, from both parties' Proposed Recommended Orders:

   
   

   1. Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the Rules promulgated pursuant thereto.

   2. Respondent Bruce E. Walker is now and was at all times material hereto a licensed

      real estate salesman in the State of Florida, having been issued license number 0110184 in accordance with Chapter 475, Florida Statutes. The last license to Respondent was as a salesman, Quest and Company, LTD, 13829 - 80th Avenue North, Seminole, Florida 33542.

   3. On September 27, 1985, in federal court, Respondent was convicted upon his plea of guilty to the criminal offense of

      conspiracy involving adulterated and misbranded medication. Respondent was sentenced to be imprisoned for one year but the imprisonment was suspended.

      Respondent was placed on probation for 18 months of community service, fined

      $1,000.00 and a $25.00 special assessment was imposed.

   4. The crime of which the Respondent was convicted is classified as a federal misdemeanor by law.

   5. The Respondent was convicted of the federal misdemeanor as a result of a plea to a charge of conspiracy although the Respondent quite candidly still denies that he conspired to do anything wrong, other than to provide unused free medication samples received from various drug manufacturing companies such as Pfizer, Upjohn, or whoever else called upon his office. The unused medication samples are quite often provided to the American Association of Retired Persons (AARP) or other charitable health care providing services. When the Respondent was approached by an individual offering to take one or more several [SIC] large sackfuls of the free medical samples and dispose of them, the Respondent was more than willing. Previously, the Respondent had been able to have the unused medicine samples incinerated by a friend at a funeral home. The Respondent in fact provided medicines to this individual on two occasions, one of which was after he had received payment from his "Cocon- spirator." (Transcript pages 25-29.)

   6. The parties concur in the official recognition of Florida Statutes and the Florida Administrative Procedure Code, in particular Section 20.30, Chapters 20,

      455 and 475, Florida Statutes.

      
      

2. Respondent was one of a large number of practicing physicians in Florida and elsewhere who were drawn into a scheme for the sale of free sample medications. While Dr. Walker solicited some free drugs from companies, he either used those personally or gave them to patients whom he knew could not otherwise afford them. The samples he sold were unsolicited surplus. None were "controlled substances."

   
   

   Dr. Walker sold the samples on two occasions. On the first occasion he was approached by an individual whom he did not know; he gave the individual two garbage bags full of the samples, without any discussion of payment. Later, an envelope with money was left with his secretary. He had some misgivings about the money but did not question the individual when the second collection of samples was made.

   
   

   When the F.B.I. contacted him regarding their investigation, he cooperated fully. This was acknowledged and taken into consideration by the Government when he was sentenced.

   
   

3. Dr. Walker was released from probation on March 26, 1987. The suspension of his medical license has been stayed pending the outcome of an appeal.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. Section 120.57(1), Florida Statutes, Section 455.225(4), Florida Statutes.

   
   

5. Subsection 475.25(1), Florida Statutes, provides that the Florida Real Estate Commission may suspend a license for a period not exceeding ten (10) years; revoke a real estate license; may impose an administrative fine not to exceed $1,000.00 for each count or separate offense; and, may impose a reprimand or, any or all of the foregoing, if it finds that the licensee:

   
   

   ... has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates 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 the purpose 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 facie evidence of such guilt.

   
   

6. Respondent argues that misdemeanors, as a matter of law, are presumed to be devoid of moral turpitude. The case he cites, Coleman v. State ex rel. Carver, 161 So. 89 (Fla. 1935), does not stand for that proposition, but distinguishes between crimes that are wrong in themselves and those that are wrong because they are prohibited by statute. Coleman states that no moral turpitude may attach to the latter class (mala prohibita).

   
   

7. The crime which Dr. Walker committed likely falls in the latter class.

   
   

   Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owned by man to man or by man to society. [citations omitted]. It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgement when wrong was not contemplated. Pearl v. Fla. Bd. of Real Estate, 394 So.2d 189, (Fla. 3rd DCA 1981), citing State ex rel. Tullidge v.

   Hollingsworth, 108 Fla. 607, 146 So. 660, 661

   (1933).

   
   

8. Dr. Walker's primary intent was to rid himself of a nuisance, the unwanted free samples. The payment he received was, in the broad sense, a lagniappe.

9. Dr. Walker committed a wrong; he admitted to misgivings after receiving the first payment. His crime did not involve moral turpitude. While on its face, the crime involved "dishonest dealing." Dr. Walker's intent was not dishonest. He has been punished and served his sentence.

   
   

10. Counsel for Petitioner urges that Respondent's license should be suspended. Pearl, supra, suggests that "The penalty of suspension should be sparingly and cautiously used and directed at the dishonest and unscrupulous."

    p. 192. In Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966), the theft of a $3.00 beefsteak was involved. The act in that case was dishonest, but the surrounding circumstances and the licensee's mental state were considered by the Court in its determination that there was insufficient cause for suspension of a broker's license.

    
    

11. Similarly, here, Petitioner has failed to provide "...clear and convincing proof of substantial causes justifying the forfeiture." Reid, supra, p. 851.

RECOMMENDATION

Based on the foregoing, it is recommended that the Administrative Complaint in this case be dismissed.

DONE and ORDERED this 22nd day of June, 1987, in Tallahassee, Florida.

MARY CLARK

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 22nd day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2183

The following constitute my rulings on the parties' Proposed Findings of Fact.

Petitioner's Proposed Findings of Fact #1-7 Adopted in Paragraph #1.

(no paragraph #3 provided.)

Respondent's Proposed Findings of Fact #1-7 Adopted in Paragraph #1.

(no paragraph #3 provided.)

#7-14 Rejected as cumulative and unnecessary. #15 Adopted in Paragraph #2.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Gardner W. Beckett, Jr., Esquire

123 Eighth Street, North

St. Petersburg, Florida 33701

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Harold Huff, Executive Director Division of Real Estate

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

Docket for Case No: 86-002183

Orders for Case No: 86-002183