STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA M. ANTEL, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4206

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

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on June 9, 1987, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Vincent W. Howard, Jr., Esquire Howard & Reyes

210 North Park Avenue Sanford, Florida 32771

For Respondent: Lawrence S. Gendzier, Esquire

Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, Florida 32801

BACKGROUND AND PROCEDURAL MATTERS

This proceeding commenced with Petitioner's request for a formal hearing in response to notice from the Real Estate Commission that her application for licensure as a real estate salesperson was being denied.

At the hearing, Petitioner testified in her own behalf. Respondent presented no witnesses. Five exhibits, comprising the application file, were admitted by stipulation as Respondent's Exhibits 1-5.

The transcript was prepared and Respondent submitted a proposed recommended order. That proposal, and all the evidence and argument by counsel on the record have been carefully considered in the preparation of this order.

Specific rulings on the proposed findings of fact are found in the attached appendix.

ISSUE

The parties stipulated on the record that the issues for determination in this proceeding are:

1. Whether the crime of manslaughter for which Ms. Antel was convicted is a crime of moral turpitude, and

   
   

2. Whether sufficient rehabilitation has taken place since the crime was committed.

FINDINGS OF FACT

1. Petitioner, Donna Antel, submitted her application for license as a real estate salesperson on August 1, 1966. In that application she revealed information regarding conviction of a crime.

   
   

2. In December 1982, Donna Antel moved to Florida with her husband, to start a new life after a series of business, financial and personal problems in New York State. Shortly afterwards, it became obvious that the problems also moved with them--the ex-wife began harassing them and the husband's children came to stay, causing severe financial and emotional stress on the relationship.

   
   

   In August 1983, Ms. Antel sat in the bedroom with a rifle, contemplating suicide. He husband walked in, and she shot him.

   
   

3. She was tried for 1st degree murder. On December 14, 1984, she was convicted of manslaughter in a jury trial, in Brevard County, Florida.

   
   

   Ms. Antel was sentenced to ten years in prison; she served eleven months in prison and six months on a work release program. On May 6, 1986, she was released on parole.

   
   

4. After release from prison, Ms. Antel received psychological counseling and has completed her course of therapy. She has committed no parole violations and is due to be fully released sometime in 1993.

   
   

5. For the six months proceeding the final hearing Ms. Antel was employed as an assistant property manager.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. Section 120.57(1), F.S.

   
   

7. The Florida Real Estate Commission based its denial of Ms. Antel's applications on sections 475.17, F.S. and 475.25, F.S. Those provide, in pertinent part:

   
   

   475.17 Qualifications for practice.-- (1)(a) An applicant for licensure who

   is a natural person shall be 18 years of age, a bona fide resident of the state, honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing.

   
   

   1. Discipline.

      1. The commission may deny an application for licensure, registration or permit or renewal thereof; ... if it finds that the licensee, permits, or applicant:

   * * *

   (f) 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 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 facie evidence of such guilt.

   (emphasis added)

   
   

   As applicant, Donna Antel has the burden of proving her entitlement to the desired license. J.W.C. Company, Inc., v. Department of Transportation, 396 So2d 778 (Fla. 1st DCA 1981).

   
   

8. Manslaughter is a felony involving moral turpitude. Moral turpitude involves duties owed by man to society, as well as acts 'contrary to justice, honesty, principle or good morals.' Pearl v. Florida Board of Real Estate, 394 So.2d 189, (Fla. 3rd DCA 1981), citing State ex rel. Tullidge v. Hollingsworth,

   146 So. 660 (Fla. 1933). As addressed at length in Pearl, supra, not all crimes involve moral turpitude. However, a first degree manslaughter conviction in New York state was held to be a crime of moral turpitude in U.S. ex rel Sollano v. Doak, 5 F.Supp 561 (D.C. N.D.N.Y 1933). In that case an alien in the heat of passion and as a result of a quarrel, shot his father-in-law with a revolver. The court rejected the alien's argument that absence of intent necessarily implies absence of moral turpitude. If intent had been present, the crime could have been murder, not manslaughter. If the act had been self defense there would be no crime at all. "... But one who uses a dangerous weapon like a revolver not in self defense but in such a way as to cause the death of another, must be held so lacking in sense of moral responsibility as to be morally depraved and his act to be one involving moral turpitude." p. 565.

   
   

   Counsel for Petitioner, in his argument at hearing cited a case, also from New York, which held that second degree manslaughter is not a crime involving moral turpitude. U.S. ex rel Mongiovi v. Karmuth, 3 F.2nd 825 (D.C. W.D.N.Y.

   1929). The New York law defining second degree manslaughter excluded use of a dangerous weapon and intent or wilfulness. Mongiovi, supra, p. 826.

   
   

   In Florida, however, the crime of manslaughter is not divided into degrees.

   It encompasses the concept of "culpable negligence" which replaces the element of criminal intent and "... means action of such a gross and flagrant character that it evidences a reckless disregard for human life or safety equivalent to an intentional violation of the rights of others." Dominique v. State, 435 So 2 974, (Fla. 3rd DCA 1983).

   
   

9. Ms. Antel was candid in describing her crime and the circumstances leading up to it. Her earnest desire to complete her rehabilitation and pursue an honorable profession is not in doubt. However, at this point we know little of her, other than the fact of the crime itself and her understandably scant employment history since release.

While not finding on a determination of her fitness for a real estate license, the continuing status of parole is a reasonable guide, without more evidence of rehabilitation that she has not yet finished the rehabilitative process. She has been on parole for barely more than a year.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a Final Order be entered denying Petitioner's application for licensure.

DONE and RECOMMENDED this 20th day of July, 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 20th day of July, 1987.

APPENDIX

The following constitute my specific rulings on the findings of fact proposed by the Respondent.

1. Adopted in Paragraph #1.

2. Adopted in Paragraph #1.

3. Adopted in Paragraph #3

4. Rejected as unnecessary.

5. Adopted in paragraph #2.

6. Adopted in paragraph #2

7. Rejected as cumulative and unnecessary.

8. Adopted in paragraph #3.

9. Adopted in paragraph #3.

Petitioner's post-hearing submittals were filed on July 15, 1987, well after the established deadline.

COPIES FURNISHED:

Harold Huff Executive Director

Florida Real Estate Commission

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

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Vincent W. Howard, Jr., Esquire Howard & Reyes, Charter

210 North Park Avenue Sanford, Florida 32771

Lawrence S. Gendzier, Esquire Department of Legal Affairs Suite 212

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 86-004206

Orders for Case No: 86-004206