STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM C. CARTER, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 87-5439

) DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled action was held on February 3, 1988, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The representatives of the parties were as follows:

APPEARANCES

For Petitioner: William C. Carter, Jr., pro se

2929 West Oak Ridge Road Apartment A-3

Orlando, Florida 32809

For Respondent: Manuel E. Oliver, Esquire

Assistant Attorney General Department of Legal Affairs Counsel for Florida Real

Estate Commission

400 West Robinson Street, Room 212 Orlando, Florida 32801

BACKGROUND

On or about July 29, 1987, Petitioner filed with Respondent an Application for Licensure as a Real Estate Salesman. Shortly thereafter, Respondent informed Petitioner that his application had been denied. By letter dated November 5, 1987, Petitioner requested a formal hearing. By letter dated November 24, 1987, Respondent informed Petitioner that the bases for the denial of his application had been: Case CR 80-206 (sexual battery--five years' probation); Case TD 83-40765 (resisting officer and attempting to flee to elude arrest--$338 fine and court costs); Case CR 80-206 (violation of parole); and 1985 possession of marijuana.

Petitioner presented one witness, himself, and no exhibits. Respondent presented no witnesses and four exhibits, all of which were admitted into evidence.

Respondent filed a proposed recommended order. Petitioner filed none. Treatment accorded Respondent's proposed findings of fact is detailed in the Appendix.

FINDINGS OF FACT

1. On or about July 29, 1987, Petitioner filed with Respondent an Application for Licensure as a Real Estate Salesman. The application revealed that Petitioner had been charged with attempted sexual battery, as to which adjudication had been withheld, and Petitioner had received five years' probation. The application also disclosed that he had served 17 days in Orange County Jail for possession of marijuana.

   
   

2. Pursuant to order dated June 3, 1981, in Orange County Circuit Court Case No. CR 80206, Petitioner, having entered a plea of no contest to attempted sexual battery on his 15 year old stepdaughter, was placed on five years' probation for this second degree felony as to which adjudication of guilt was withheld.

   
   

3. Pursuant to judgment entered on February 27, 1984, in Orange County Circuit Court Case No. 80-206, Petitioner, having been found to have violated his probation, was adjudicated guilty of the above-referenced count of attempted sexual battery in violation of Sections 777.04 and 794.011(4)(e), Florida Statutes.

   
   

4. Pursuant to order of disposition in Orange County Court Case No. M083- 4486, Petitioner, having entered a plea of no contest to possession of cannabis, was fined $100 plus court costs for this misdemeanor as to which adjudication of guilt was withheld. Petitioner testified further that, in connection with this incident, he entered a plea of guilty to attempt to evade arrest.

   
   

5. Petitioner testified that he was generally of good character and a solid citizen apart from the criminal record disclosed on the application and court records produced at the hearing. However, he offered no corroborative evidence in this regard, nor specific examples of his behavior from which good character could be inferred.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes.

   
   

7. Petitioner has the burden of proving his eligibility for licensure. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

8. Applicants for licensure as real estate salespersons must show that they are of "good character," among other things. The applicant shall be deemed unqualified if he has been found guilty of practices that would have been grounds for license revocation or suspension had he then been licensed. The only exception to this general prohibition is where the public interest would not be jeopardized by granting the license due to the lapse of time and applicant's subsequent good conduct and reputation, or other good reason. Section 475.17(1)(a), Florida statutes.

9. Grounds for denial of an application or suspension or revocation of a license include being convicted or found guilty, regardless of adjudication, of a crime directly relating to the activities of a licensed broker or salesperson or involving "moral turpitude." For this purpose, a plea of no contest is considered a conviction. Section 475.25(1)(f), Florida Statutes.

   
   

10. At least with respect to the real estate profession, felony possession of a controlled substance is not a crime involving moral turpitude. Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981).

    
    

11. It does not appear that possession of marijuana directly relates to the activities of a licensed salesperson. Therefore, the conviction for the misdemeanor possession of marijuana does not constitutes a basis for denial of Petitioner's application for licensure.

    
    

12. However, attempted sexual battery is a crime involving moral turpitude. Attempted sexual battery also directly relates to the real estate profession.

    
    

13. 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. 3d DCA 1981). The Pearl court noted in a case from another jurisdiction that indecent exposure was held to be a crime involving moral turpitude. Attempted sexual battery, especially of a 15 year old stepdaughter, is clearly a crime involving moral turpitude.

    
    

14. The other criminal convictions are not grounds for denial of an application.

    
    

15. Although approximately eight years have passed since the attempted sexual battery, passage of time alone is not sufficient under the statute to overcome the disability caused by Petitioner's past conduct. He has not carried his burden of proving subsequent good conduct and reputation so as to justify issuance of a license. Petitioner's self-serving, unsupported testimony of good character, especially when it is offered in a conclusory form without specific concrete examples, is not sufficient proof of rehabilitation.

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered denying Petitioner's Application for Licensure as a Real Estate Salesman.

ENTERED this 21st day of March, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

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 21st day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5439

Treatment Accorded Respondent's Proposed Findings All of Respondent's proposed findings have been adopted in substance.

COPIES FURNISHED:

William C. Carter, Jr. 2929 West Oak Ridge Road Apartment A-3

Orlando, Florida 32809

Manuel E. Oliver, Esquire Assistant Attorney General Department of Legal Affairs

400 West Robinson Street Orlando, Florida 32801

Darlene F. Keller Executive Director Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

WILLIAM C. CARTER, JR.

Petitioner

vs. DOAH NO. 87-5439

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION

Respondent

/

FINAL ORDER

The Florida Real Estate Commission heard this case on April 6, 1988 to issue a Final Order.

Hearing Officer Robert E. Meale of the Division of Administrative Hearings presided over a formal hearing on February 3, 1988. On March 21, 1988, he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact and Recommendation. The Commission further adopts the Hearing Officer's Conclusions of Law, except those numbers 5 and 6 in the Recommended Order which the Commission finds erroneous. Instead, the Commission adopts as its own Respondent's Exception to the Conclusions of Law, concluding that the crime of possession of cannabis is a fact which must be considered in determining if the Petitioner is of good character, as required of a person who seeks licensure.

Copies of the Recommended Order and of Respondent's Exceptions are attached Thereto as Exhibits A and B and made a part hereof.

It is therefore ORDERED that the Petitioner be denied application for a real estate license.

This Order shall be effective on date of filing with the Clerk of the Department of Professional Regulation. This Order shall be appealable to the District Court of Appeal within 30 days from filing date.

DONE AND ORDERED this 6th day of April 1988 in Orlando, Florida.

Chairman

Florida Real Estate Commission

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to William C. Carter Jr., 2929 West Oak Ridge Road, Apt. A-3, Orlando, Florida 32809; to Hearing Officer Robert Meale, Division of Administrative Hearing, 2009 Apalachee Parkway, Tallahassee, Florida 32399-1550; and to Manuel E. Oliver, Assistant Attorney General, Suite 212, 400 West Robinson, Orlando, Florida 32802, this day of 19th day of April 1988.

MO:pep Director

Docket for Case No: 87-005439

Orders for Case No: 87-005439