STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-0435

)

JUNE E. DUPEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, on May 15, 1987 at Lowell, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Arthur R. Shell, Jr., Esquire

Senior Attorney Division of Real Estate

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

For Respondent: June E. Dupee, pro se

c/o Salvation Army

14 Northwest 14th Avenue

Fort Lauderdale, Florida 33311

This action arose upon the Petitioner's filing an Administrative Complaint charging that on or about March 7, 1986, the Respondent was convicted of DUI/manslaughter arising out of the operation of her motor vehicle while under the influence of alcoholic beverages in a manner resulting in the death of a human being. Respondent is thus charged with being guilty of a crime which directly relates to the activities of a licensed real estate salesman, involves moral turpitude or fraudulent or dishonest dealing in alleged violation of Section 475.25(1)(f), Florida Statutes.

Additionally, the Respondent is charged in Count II with violation of Section 475.25(1)(n) by being confined in a State prison. Count III charges that the Respondent is guilty of not having timely informed the Petitioner, in writing, of having pled guilty or having been convicted of a felony in alleged violation of Section 475.25(1)(p), Florida Statutes.

The cause came on for hearing as noticed, at which the Petitioner presented the testimony of Mr. Crawford C. Richardson, Jr., an investigator for the

Petitioner. The Respondent presented the testimony of Reverend David J. Randolph, Reverend Hubert L. Parr and the Respondent herself.

The Petitioner presented three exhibits, all of which were admitted into evidence and which consisted of the proof of the Respondent's licensure as well as the Circuit Court documents establishing the fact of the Respondent's conviction for the crime of "manslaughter" and "DUI/manslaughter." Respondent's Exhibit 1, by agreement, was submitted after the hearing, was admitted into evidence and consisted of letters of recommendation or letters attesting to the good character of the Respondent.

The issue to be resolved in this proceeding concerns whether the Respondent has violated the statutory provisions charged in the three counts of the Complaint by the fact of her conviction on the above-mentioned criminal charges and, if these statutory provisions have been so violated, what penalty, if any, is warranted.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes, related to the licensure and the regulation of the practice of real estate brokers and salesmen in the State of Florida. The Respondent is a licensee regulated by the Petitioner pursuant to Chapter 475, Florida Statutes, albeit, holding an inactive license at the present time. Such an inactive licensure status is a sufficient basis for Petitioner's jurisdiction. Boedy v. Department of Professional Regulation, Board of Medical Examiners, 433 So.2d 544, (1st DCA 1983).

   
   

2. On or about March 7, 1986, the Respondent was convicted in the Circuit Court in and for Pinellas County, Florida, of the crime of manslaughter and "DUI/manslaughter," for each of which two counts she was sentenced to a six year prison term which sentences were to run concurrently, with a five year probationary period after the sentences of incarceration were served. In March 1986, the Respondent was duly remitted to the custody of the Department of Corrections and incarcerated at the Women's Prison at Lowell, Florida, the hearing site. The Respondent was in a work release status and was about to transfer to a less restrictive custodial situation in Fort Lauderdale in the Department's work release program at the time of the hearing. She will work in this program in the community for a few months before her ultimate release. Her release will come much sooner than the original length of her sentence imposed by the Court because she has earned the maximum amount of "gain-time" and has been a model prisoner, thus not losing any gain time since the first day she was incarcerated.

   
   

3. This incident arose on May 23, 1983, in Pinellas County when the Respondent was proceeding down a public roadway in her own motor vehicle after having ingested an indeterminate amount of alcoholic beverages. While she was driving, a deputy sheriff in a Sheriff's Department vehicle approached her from the rear, activated his siren and indicated that he intended apprehending her or at least stopping her car. The deputy's siren startled and distracted the Respondent and in the process of pulling over to the side of the road, which necessitated a lane change, she became involved in the auto accident which ultimately caused the death of Mr. Walter Heuston. She was charged with unlawfully causing the death of Mr. Heuston by the operation of a motor vehicle while under the influence of an intoxicating liquor to an extent as to deprive her of full possession of her normal faculties and, in Count II of the criminal

   information, by her own act or culpable negligence, in driving a motor vehicle, without intent to murder, inflicting mortal wounds upon Walter Heuston, of which he died.

   
   

4. The Respondent, at the hearing and repeatedly in the past, has displayed extreme remorse over this unfortunate turn of events and freely acknowledges her fault in so conducting herself as to cause the death of another. As established by other witnesses, as well as by those, whose letters attesting to her good character were stipulated into evidence, she has used this experience and her time in prison to better herself. She has become quite active in a Christian organization for women and has enrolled in a theological seminary. In her course work with the seminary, she has earned the highest possible grades. Her pre-release counselor, Reverend Randolph, established that she is interested in growing and improving her life and remains very interested in her profession and in helping her community. The Respondent presently works at a community college as a civilian secretarial worker and has an exemplary record. At the correctional institution, she works in orienting inmates and counseling them to help them adjust to prison life and also works as a chaplain's aide.

   
   

5. Similarly, Reverend Hubert Parr, the Respondent's minister, established that she is a member of his church and that he has had frequent contact with her in his Bible study teaching at the Lowell Prison. The Respondent has proven to him that she has grown a great deal as a responsible, caring person and is very repentant concerning the incident which resulted in her incarceration. He truly feels she aspires to be a model citizen in the future. He has substantial experience working as a chaplain and counselor for a drug and alcohol rehabilitation center. He is convinced that the Respondent has conquered any alcohol problem she may have had and is convinced she has, and wishes to continue to, change her life for the better.

   
   

6. The Respondent established that she had no prior alcohol problems of record and had no traffic citations for driving under the influence or even for speeding before the incident in question. She has conscientiously worked at her studies with the Luther Rice Seminary in Jacksonville and genuinely wants to help other people who may have alcohol or drug problems. She wishes to use her own unfortunate experience to the advantage of others by counseling persons with alcohol problems to help them avoid similar disastrous consequences. She presently works at the Central Florida Community College and has an excellent work record and numerous letters of recommendation. Her work site away from the correctional institution renders drugs and alcohol easily accessible, yet she has steadfastly avoided them and has been involved in no incident involving the purchase or use of alcohol or drugs in the course of her work experience away from the Lowell facility. She is in the honor unit at the Lowell facility, could "walk away" at any time and has chosen not to do so. She is in all respects a model prisoner, is contrite and remorseful concerning the reason for her imprisonment and genuinely appears to be trying to turn that tragic experience into a positive benefit in redirecting the course of her own life and in using that bad experience to help others who may have similar problems.

   
   

7. Concerning the charge that she failed to timely inform the Petitioner of her incarceration or her conviction, she established that she wrote the Petitioner in early April 1986 and within thirty days after her conviction but apparently sent the letter to the wrong address in Orlando instead of to the appropriate address in Tallahassee. She never got an answer and during this time was still in the reception facility for a thirty day period during which she was in close custody and confinement. It was, therefore, difficult for her

   to obtain information about where to write to the Petitioner to inform them of her situation and, because of the emotional stress she was under at the time, she did not immediately write another letter upon failing to get an answer to the first one after a reasonable time. In any event, later that summer, in August 1986, she wrote a second letter to the Petitioner informing it of her situation and inquiring about her licensure status. This was answered by the Board and ultimately resulted in the instant prosecution. The Respondent was sentenced on March 7 and did not arrive at the Lowell Prison with a permanent address until March 21. She wrote the first letter in the second week of April.

   
   

8. In view of the Respondent's obvious remorse concerning the unfortunate incident which resulted in her conviction and incarceration and the fact that she obviously wishes to better herself both spiritually and professionally, and has a genuine desire to help others overcome alcohol or drug problems and avoid similar consequences, it cannot be found that the Respondent's conviction of a felony and resultant incarceration is truly representative of her innate character and individual self-worth as that relates to her competence and trustworthiness to practice her profession as a realtor. The undersigned finds no evidence which would indicate that the public in the State of Florida, requiring the services of the Respondent as a realtor in the future, would be in any danger of becoming victims of dishonest, deceitful, fraudulent or similar reprehensible modes of practice by the Respondent. In consideration of the severe penalty the Respondent has already paid and is continuing to pay for the tragedy she is accountable for, it would be unjust to remove her right to practice her chosen means of livelihood through this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1985).

   
   

10. The Respondent is charged in Count I of the Administrative Complaint with violating Subsection 475.25(1)(f), Florida Statutes, by being convicted of a crime which directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing. There is no question that the clear and convincing evidence of record, as reflected in the above Findings of Fact, does not establish that the crime for which Respondent was convicted, described above, involved a direct relationship to the activities of a real estate broker or salesman, nor did it involve any type of business dealing, fraudulent, dishonest or otherwise.

    
    

11. Turning to the question of whether the crime of which she was convicted involves moral turpitude, it is noted initially that, as discussed by the Court in Nicholas Bachynasky vs. Department of Professional Regulation, Board of Medical Examiners, 471 So.2d 1305 (1st DCA 1982), the conviction of a felony does not necessarily involve the element of moral turpitude. In a prototypical case involving the definition of moral turpitude, State ex rel. Tullidge vs. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933), the Florida Supreme Court defined that concept:

    
    

    "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. (Citations omitted by the Court.) 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. (Emphasis supplied.)"

    
    

12. The Court, in Pearl vs. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981), found that moral turpitude "involves duties owed by man to society as well as acts contrary to justice, honesty, principle or good morals." (Citing the Tullidge decision supra.)(Emphasis supplied). The case of Everett vs. Mann, 113 So.2d 758 (Fla. 2nd DCA 1959), cited in the Pearl opinion, stands for the proposition that crimes constituting violations of one's duties in dealing with members of society may be classified as crimes involving moral turpitude. The Court in Pearl went on to discuss cases from Florida and other jurisdictions which generally looked to the circumstances of the crime involved to determine if moral turpitude was present. That is, cases such as bookmaking or extortion have been held to involve moral turpitude since members of the public are deprived of property rights in the form of tax revenue, money or other items of value or are deprived of other basic rights. Conversely, the mere possession of lottery tickets, for instance, or in the Pearl case itself, the possession of controlled substances, standing alone, has been held not to involve an offense of moral turpitude. The generally prevailing view in court decisions in this area seems to be that the presence of moral turpitude in the commission of a crime turns upon whether the crime is an active or passive one, that is, whether a breach of a duty owed to another person or to the public generally has occurred or not.

    
    

13. The Respondent, having been convicted of the crime of manslaughter as defined in Section 782.07, Florida Statutes, and the crime of operating a motor vehicle while under the influence of alcoholic beverages causing the death of a human being, as set out in Section 316.1931(1), (2)(c), Florida Statutes, the statutory elements of proof of these two offenses must be looked at to see if the Respondent has breached a duty to members of society as envisioned in the decisions cited. The offense of causing the death of a human being while operating a motor vehicle in an intoxicated or alcoholically influenced condition is deemed, under the subsection last cited, to constitute manslaughter. The definition of manslaughter set forth at Section 782.07, Florida Statutes, involves the killing of a human being by "culpable negligence" under circumstances not amounting to excusable homicide or murder, both of which offenses are punishable as manslaughter, constituting a felony of the second degree.

    
    

14. Even the concept of simple negligence for civil proceeding purposes, as in the "garden variety" auto accident case, involves a breach of a duty of care owed by the perpetrator or defendant to another member of society with consequences which the perpetrator should have foreseen, without the additional element of "culpability" involved in such cases when the perpetrator knowingly has operated a motor vehicle under the influence of alcohol, which is unlawful in itself, without the additional element of harm to another. If such a person operates a vehicle under the influence of alcohol and causes harm or death to another, the law then generally holds such a perpetrator guilty of and responsible for a higher or more severe form of negligence, that is, "culpable negligence." Culpable negligence then, involves the elements of blameworthiness or gross, wanton or reckless disregard for the rights of another or the possibility of harm to another. Operation of a motor vehicle under such an inherently illegal and dangerous circumstance, which results in the death of another, thus clearly involves the breach of a duty owed by the perpetrator of

    that act to society in general and to the victim in particular. See generally Fla. Jur. 2d manslaughter Sec. 1061. The breach of such a duty which the Legislature has seen fit to punish severely as the second degree felony of manslaughter, while concededly not involving the element of intent, fraud or dishonesty, clearly involves a sufficient level of depravity in the breach of this responsibility to comport with the definition of "crime of moral turpitude" enunciated in the above decisional authority. Thus, it must be concluded that the Respondent has been convicted of a crime involving moral turpitude for purposes of the above statute.

    
    

15. It is also obviously true that the offense charged concerning violation of Section 475.25(1)(n), Florida Statutes, involving the Petitioner's authority to discipline the license of a Respondent who has been "confined in any State or federal prison..." has been established. In fairness to the Respondent, however, the obvious legislative intent expressed in paragraph (n) upon which this last charge is based, is to protect the public from the inability of such an incarcerated licensee to safely be entrusted with the real estate business or confidential affairs of members of the public who might be his clients while he is under diminished capacity to safely deal with their affairs because of mental incapacity or being incarcerated in prison. There is no evidence to indicate that the Respondent has any ongoing real estate client relationships now or at the time of her incarceration nor sought at such times to engage in such real estate business relationships. Indeed, her licensure was in an inactive status during her incarceration. Thus, though the Respondent is technically in violation of paragraph (n), the violation, under the circumstances of this case is technical in nature and is not a sufficient predicate for a significant penalty itself.

    
    

16. The additional offense charged in Count III involving the Respondent's alleged failure to timely inform the Florida Real Estate Commission, within thirty days of her conviction, of being convicted of a felony, has not been established. The Respondent's testimony was unrefuted and established that indeed she had sought to inform the Florida Real Estate Commission in writing within thirty days of her conviction, of that fact. The charge was made based upon the Petitioner not learning of the conviction until receipt of her second letter informing them of it several months later due to the Respondent's inadvertent posting of the first notification letter to the wrong address. The Respondent thus made a good faith, bona fide effort to timely inform the Real Estate Commission of her conviction and thus the gravamen of this offense has not been proven. Count III should thus be dismissed.

    
    

17. The offenses involved in the other two counts have been proven, but in view of the extenuating circumstances delineated in the above Findings of Fact, based upon unrefuted evidence of record adduced by the Respondent, it is obvious that the Respondent is genuinely desirous of re-embarking on her real estate professional career in a competent, honest fashion. The Respondent's evidence also establishes that her basic character is honorable and that she is genuinely and profoundly remorseful at the unfortunate circumstance in which she caused the death of another person. The substantial evidence adduced showing that the Respondent has learned in a posictive, rehabilitative way from her tragic experience, even to the extent of embarking on a successful course of study in a religious seminary and actively working in aid of others who suffer or engage in alcohol or substance abuse, it is patently apparent that the intent underlying the enactment of Chapter 475, which is to ensure the protection of the public from unscrupulous persons who fraudulently practice the real estate profession, will not be ill-served by allowing the Respondent to continue her practice of that profession. See Pearl, supra. As held by the Court in Reid vs. Florida

Real Estate Commission, 198 So.2d 846 (Fla. 2nd DCA 1966), penal sanctions should be imposed "only upon clear and convincing proof of substantial causes justifying the forfeiture" (emphasis supplied by the Court). "The penalty of suspension should be sparingly and cautiously used and directed at the dishonest and unscrupulous." Pauline vs. Borer, 274 So.2d 1 (Fla. 1973). In summary, in view of the model citizenship displayed by the Respondent, but for the admittedly tragic, miscreant conduct at issue, for which she has already paid a very severe penalty, additional substantial penalties as a result of this proceeding, are unwarranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that a Final Order be entered by the Florida Real Estate Commission according the Respondent the penalty of a written reprimand.

DONE and ORDERED this 31st day of August 1987, in Tallahassee, Florida.

P. MICHAEL RUFF 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 31st day of August, 1987.

COPIES FURNISHED:

Arthur R. Shell, Jr., Esquire Senior Attorney

Division of Real Estate

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

June E. Dupee

c/o Salvation Army

14 Northwest 14th Avenue

Fort Lauderdale, Florida 33311

Harold Huff, Executive Director Division of Real Estate

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 General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-000435

Orders for Case No: 87-000435