STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD CHARLES BROWN, )

)

Petitioner, )

)

vs. ) DOAH Case No. 88-1231

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on December 13, 1988 in Fort Pierce, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Ronald Charles Brown, pro se

9400 Monte Carlo Boulevard Fort Pierce, Florida 33451

For Respondent: Lawrence Gendzier, Esquire

400 West Robinson Street Room 212

Orlando, Florida 32801 BACKGROUND

This matter began when Petitioner applied for licensure as a real estate salesman. Respondent denied the application and a formal administrative proceeding was requested by Petitioner. This hearing followed.

Respondent presented one evidentiary exhibit at hearing and no witnesses.

Petitioner presented three evidentiary exhibits and testimony of four witnesses, including himself. One document presented by a witness prior to the hearing was disclosed to all parties and denominated as Hearing Officer's exhibit number one. Proposed findings of fact submitted by Respondent are addressed in the appendix to this recommended order. Petitioner did not timely submit proposed findings of fact and none had been received by the undersigned at the time of the preparation of this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is Ronald Charles Brown. By application dated September 16, 1987, he sought licensure as a real estate salesman.

   
   

2. Question number six of the application completed by Petitioner requires a "yes" or "no" answer to the question: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest)

   , even if adjudication was withheld?

   
   

3. Petitioner responded in the affirmative to question number six and disclosed that he was convicted in juvenile court of the offense of grand theft in Marion County, Florida in 1978; that he was charged with the offense of trespassing in 1982, which charge was subsequently dropped; and that he was charged with sale and possession of cocaine in Marion County in 1985. The court withheld adjudication of Petitioner's guilt of the drug sale and possession charge and placed him on probation for five years.

   
   

4. By letter dated March 7, 1988, counsel for Respondent informed Petitioner of Respondent's intent to deny licensure to Petitioner on the basis of the 1978 grand theft conviction; a 1978 arrest and conviction for "hit and run" in Marion County; a 1978 arrest and conviction for contributing to the delinquency of a minor; and the 1985 cocaine sale and possession charge.

   
   

5. In February of 1978, Petitioner was 17 years of age when, intoxicated by alcohol and drugs, he fell through a skylight into a jewelry store. He suffered minor cuts in the fall and remained lying on the floor at the scene until police, responding to a security alarm, arrived and took him into their custody. Petitioner was subsequently required to make restitution to the store for damages resulting from the incident in a Marion County, Florida, juvenile court proceeding.

   
   

6. Petitioner reached his 18th birthday in May of 1978. He testified that in July of that year, he angrily backed out of the driveway of the residence of parents of a girl friend. In the process, he knocked over the parents' mailbox with the automobile he was driving. He went to his parents' home, obtained another mailbox and returned to install it at the residence of the girl friend's parents. Upon his arrival, he was met by law enforcement officials and arrested for "hit and run." A subsequent check by the officials disclosed his driver's license was invalid.

   
   

7. The 16 year old girl friend, on a date undisclosed by the record but in close proximity to the mailbox incident, ran away from home to meet Petitioner at his parent's lake house in Marion County. Petitioner and she met there in the early evening. Her parents and law enforcement officials arrived that night. Petitioner was arrested and subsequently convicted of the offense of contributing to the delinquency of a minor.

   
   

8. In 1985, Petitioner was arrested for sale and possession of cocaine. While the evidence fails to disclose Petitioner's plea to these charges, adjudication of guilt was withheld and Petitioner was placed on probation by the court. That probation was terminated July 19, 1988, by court order.

   
   

9. At present, Petitioner is married. He and his wife have a small baby. He has been employed by a small chain of appliance stores for almost two years and now manages one of the stores. At the store managed by Petitioner, he exercises total control. He possesses the store keys, opens and closes the

   facility, oversees the inventory valued at approximately $300,000 and controls daily cash of approximately $5,000. He reports to a supervisor several miles away each morning to take and drive the delivery truck, loaded with products, to the store to which he Is assigned. Several informal inventories and one formal inventory have been performed at the store during the one year Petitioner has managed it and no losses have been noted.

   
   

10. Petitioner denied he had ever sold cocaine; instead he insisted that his role was limited solely to that of being a delivery boy for other drug salespersons. He stated he has undertaken no specific drug rehabilitation program other than to discontinue involvement with controlled substances. In addition to his own testimony acknowledging and explaining his criminal record, he presented testimony regarding his character. Character witnesses consisted of Petitioner's mother and two other individuals. Both individuals testified they had known Petitioner only since February of 1986 or some point in time since the occurrence of his last criminal offense in 1985. Both individuals were impressed with Petitioner and indicated some knowledge, absence specific details, of his criminal background.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

12. The Florida Real Estate Commission may deny an application for licensure if the applicant has been convicted or found guilty of a crime involving moral turpitude. Moral turpitude has been defined as anything done contrary to justice, honesty, principle or good morals. It 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. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933).

    
    

13. In view of the foregoing definition, contributing to the delinquency of a minor and the sale and possession of cocaine are offenses involving moral turpitude.

    
    

14. Petitioner bears the burden of proof with regard to establishment of his rehabilitation and qualifications for licensure. Based on the limited period of time that has elapsed since Petitioner's last criminal offense and the lack of evidence corroborating Petitioner's asserted "delivery boy role" in that instance of his arrest on very serious drug charges, Petitioner has failed to meet that burden.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application

for licensure.

DONE AND ENTERED this 18th day of January, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1231

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

RESPONDENT'S PROPOSED FINDINGS

1.-8. Adopted in substance.

COPIES FURNISHED:

Ronald Charles Brown, pro se 9400 Monte Carlo Blvd.

Fort Pierce, Florida 33451

Lawrence Gendzier, Esquire

400 West Robinson Street Room 212

Orlando, Florida 32801

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Darlene F. Keller, Division Director Real Estate Legal Services

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 88-001231

Orders for Case No: 88-001231