STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP S. WONG, )

)

Petitioner, )

)

vs ) CASE NO. 88-6013

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 28, 1989, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Phillip S. Wong

855 Northeast 91st Terrace Miami Shores, Florida 33138

For Respondent: Manuel E. Oliver, Esquire

Assistant Attorney General

400 West Robinson Street, Suite 212 Orlando, Florida 32801

INTRODUCTION

On June 20, 1988, Phillip S. Wong submitted an application for licensure to practice as a real estate salesman in the State of Florida. On his application Wong revealed that he had a criminal record. Wong was subsequently informed that, because of this criminal record, the Florida Real Estate Commission intended to deny his application. Wong thereafter requested a formal hearing on the issue of whether he meets the qualifications for licensure. In early December, 1988, the matter was referred to the Division of Administrative Hearings for purposes of conducting such a hearing.

At hearing, only Wong testified. The parties each offered three exhibits into evidence. All six exhibits were admitted by the Hearing Officer.

The transcript of the hearing was filed with the Division of Administrative Hearings on March 14, 1989. On March 27, 1989, Respondent filed a proposed recommended order containing proposed findings of fact and conclusions of law.

All of Respondent's proposed findings of fact have been accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Wong has not filed any post-hearing pleadings.

FINDINGS OF FACT

Based on the evidence presented at hearing, the Hearing Officer makes the following findings of fact:

1. Phillip S. Wong is a convicted felon. On December 6, 1982, after entering a plea of guilty, he was adjudicated guilty of one count of each of the following crimes: aggravated assault with a deadly weapon without intent to kill, in violation of Section 784.021(1)(a), Florida Statutes; false imprisonment, in violation of Section 787.02, Florida Statutes; burglary of a dwelling during which an assault was made, in violation of Section 810.02, Florida Statutes; conspiracy to commit a felony, to wit: trafficking in cocaine, in violation of Sections 777.04 and 893.135, Florida Statutes; trafficking in cocaine, in violation of Section 893.135, Florida Statutes; and possession of cocaine with the intent to sell, in violation of Section 893.13, Florida Statues. For these offenses, all of which were committed in August of 1982, Wong received five 1/ separate three-year sentences of imprisonment that ran concurrently with one another.

   
   

2. As a prisoner, Wong's conduct was exemplary. Accordingly, in May, 1984, he was placed in a work release program. He completed serving his sentence in September, 1985.

   
   

3. Since his return to the community, Wong has married and become a father. To help support his family, he works as a chef in a French restaurant, a position he has held for the past four and a half years.

   
   

4. Wong is now a dedicated family man concerned about the welfare of his wife and their two and a half year old child. This concern has prompted him to seek a career in real estate so that he will be better able to provide for his family.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Florida Real Estate Commission is responsible for certifying qualified applicants for licensure as real estate salesmen in the State of Florida. Section 475.181, Fla. Stat.

   
   

6. An applicant is not qualified for such licensure if he "has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license under [Chapter 475, Florida Statutes] had the applicant then been registered ... unless, because of lapse of time and subsequent conduct and reputation, or other reason deemed sufficient, it appears to the commission that the interest of the public and investors will not likely be endangered by the granting of the registration. Section 475.17(1)(a), Fla. Stat.

   
   

7. Among the things for which a real estate salesman's license may be revoked or suspended under Chapter 475, Florida Statutes, is the licensee's conviction of a crime which "involves moral turpitude." Section 475.25(1)(f), Fla. Stat.

   
   

8. "Moral turpitude," as used in Chapter 475, Florida Statutes, has been defined as involving "duties owed by man to society, as well as acts `contrary to justice, honesty, principle or good morals.'" Pearl v. Florida Real Estate Commission, 394 So.2d 189, 191 (Fla. 3d DCA 1981).

9. The evidence adduce in the instant case reveals that in August, 1982, Phillip S. Wong committed, and four months later was convicted of, six felony offenses: aggravated assault with a deadly weapon without intent to kill; false imprisonment; burglary of a dwelling during which an assault was made; conspiracy to traffic in cocaine; trafficking in cocaine; and possession of cocaine with intent to sell. These are crimes involving "moral turpitude." His commission and conviction of these offenses therefore would have been cause to revoke or suspend his real estate salesman license had he then held one. Accordingly, pursuant to Section 475.17(1)(a), Florida Statutes, Wong bears the burden of showing that his rehabilitation is sufficiently complete to entitle him to licensure. See Antel v. Florida Real Estate Commission, 522 So.2d 1056, 1058 (Fla. 5th DCA 1988).

   
   

10. Wong has failed to meet this burden. His felonious conduct did grave, albeit not irreparable, damage to his reputation and standing in the community. He has repaired a substantial portion of the damage by his exemplary conduct following his convictions, but, because of the number and serious nature of the crimes he committed, he needs more time to demonstrate that he can be trusted. See Antel v. Florida Real Estate Commission, 522 So.2d at 1058.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's

application for licensure to practice as a real estate salesman, without prejudice to Petitioner filing a subsequent application when he is able to show that his rehabilitation is sufficiently complete to entitle him to such licensure. See Karl v. Florida Real Estate Commission, 229 So.2d 610, 611 (Fla. 3d DCA 1969)(Commission may not preclude an applicant whose application has been denied because of a prior felony conviction from reapplying for licensure and showing subsequent rehabilitation).

DONE and ENTERED this 10th day of April 1989, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1989.

ENDNOTE

1/ Wong received a single sentence for the false imprisonment and burglary convictions and four separate sentences for the remaining convictions.

COPIES FURNISHED:

Phillip S. Wong

855 Northeast 91st Terrace Miami Shores, Florida 33138

Manuel E. Oliver, Esquire Assistant Attorney General

400 West Robinson Street, Suite 212 Orlando, Florida 32801

Darlene F. Keller

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32802

Bruce D. Lamb, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-006013

Orders for Case No: 88-006013