STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-4516

)

KAY STARR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 8, 1998, at Fort Lauderdale, Florida,1 before Claude

B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven D. Fieldman, Esquire

Department of Business and Professional Regulation, Division of Real Estate

400 West Robinson Street, N-308 Orlando, Florida 32801

For Respondent: Frederick H. Wilsen, Esquire

Gillis and Wilsen

1415 E. Robinson Street, Suite B Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent, a licensed real estate broker, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On July 18, 1997, the Petitioner issued an Administrative Complaint that contained certain factual allegations and charged that Respondent violated two separate statutes regulating the real estate profession in Florida. Count I alleged that Respondent violated the provisions of Section 475.25(1)(m), Florida Statutes, by obtaining her real estate broker's license "by means of fraud, misrepresentation, or concealment." This count is premised on Respondent's response to a question on her application pertaining to her criminal history. Count II alleged that Respondent violated the provisions of Section 475.25(1)(f), Florida Statutes, by having been guilty of a crime which "directly relates to the activities of a licensed real estate salesperson or involves moral turpitude or fraudulent or dishonest dealing." This count is premised on Respondent's plea to a charge of DUI after her licensure.

Respondent timely challenged the allegations of the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

The prehearing stipulation filed by the parties erroneously reflected that Petitioner intended to drop Count II of the Administrative Complaint. Counsel for Petitioner discussed this matter with counsel for Respondent to advise him of this error. In addition, Petitioner was permitted to amend paragraph 4 of the Administrative Complaint to reflect that the charge at issue in Broward County, Case Number 86-27184MM10, was disorderly

intoxication, not driving under the influence. While the body of the Administrative Complaint incorrectly described the charge, the exhibit to the Administrative Complaint correctly set forth the charge. Counsel for Respondent advised that his client was not prejudiced by either error and did not want a continuance of the proceeding. Consequently, Petitioner was relieved of both errors, and Count II was at issue in the formal hearing.

At the formal hearing, Petitioner did not call any witness, but submitted five exhibits, each of which was accepted into evidence. Respondent testified on her own behalf and presented the additional testimony of her husband. Respondent submitted two exhibits, which were accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to regulate the practice of real estate in the State of Florida pursuant to Chapters 455

   and 475, Florida Statutes, and Chapter 61J2, Florida Administrative Code. Petitioner's responsibilities include the prosecution of administrative complaints.

2. Prior to February 1993, Respondent was a licensed real estate salesperson in the State of Florida. In February 1993,

   Respondent filed an application with Petitioner for licensure as a real estate broker.

3. The application provided the applicant with two boxes, one marked "yes" and the other marked "no" to the following question, instructions, and caveat:

   Have you ever been convicted of a crime, found guilty, or entered a plea of guilty of nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO."

   
   

   If you answered "YES," attach the details and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper.

   
   

   Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could result in denial of licensure. If you do not fully understand this question, consult with an attorney of the Division of Real Estate.

   
   

4. Respondent answered Question 9 in the negative.

   
   

5. Respondent thereafter signed the application, including the following affidavit:

   The above named and undersigned applicant for licensure as a real estate broker under the provisions of Chapter 475, Florida

   Statutes, as amended, upon being duly sworn deposes and says that s(he) is the person so applying, that s(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information, an records permit, without any evasion or mental reservations whatsoever; that s(he) knows of no reason why this application should be denied; and s(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications, whether and additional oath thereto shall be administered or not.

6. On the evening of September 28, 1986, Respondent and her husband became involved in a loud argument at their home after having consumed too much alcohol. As a result, someone called the Fort Lauderdale Police Department. Respondent was thereafter arrested and charged with disorderly intoxication. On

   November 20, 1986, Respondent pled nolo contendere to one count of disorderly intoxication in Broward County, Florida.

   Respondent was fined, but adjudication of guilt was withheld. The court records reflect Respondent's name as being Katherine [sic] Lawand, which is her married name, and Kay Starr, which is the name Respondent uses for business purposes.

7. On the evening of April 25, 1992, a virtual repeat of the incident of September 28, 1986, occurred. Again, as the result of a loud, drunken argument between Respondent and her husband, the Fort Lauderdale Police Department was called. As a result of her behavior, Respondent was arrested on the charge of

   disorderly conduct. On May 21, 1992, Respondent entered a plea of nolo contendere to one count of disorderly conduct in Broward County, Florida. The court records reflect Respondent's name entered on this plea as Kathline [sic] Starr.

8. Respondent testified that she thought Question 9 on the application for a broker's license only pertained to felony crimes. Respondent testified that she does not consider herself to be a criminal and that she did not intend to mislead or deceive the licensing agency.

9. On May 3, 1993, Respondent passed the broker licensure examination.

10. On May 23, 1993, Respondent was issued her initial license as an inactive broker. The license number was BK0459569.

11. Since September 24, 1993, Respondent has been actively licensed as either a broker or a broker/salesperson. At the time of the formal hearing, Respondent was licensed as an individual broker with an office at 120 East Oakland Park Boulevard, Fort Lauderdale, Florida.

12. Following an automobile accident in Broward County, Florida, on December 12, 1994, Respondent was charged with "DUI/ Blood Alch Above 0.20" (Count I); "Driving Under the

    Influence" (Count II); and "Disobey Stop/Yield Sign" (Count III).

    
    

13. On October 3, 1995, Respondent entered a plea of nolo contendere to the charge of driving under the influence of alcohol (Count II). Count I was nolle prossed and Count III was

    dismissed.

    
    

14. As a result of the plea entered on October 3, 1995, Respondent was adjudged guilty of D.U.I. She was fined, placed on probation for six months, and ordered to perform 50 hours of community service. Her driver's license was suspended for six months. As a condition of her probation, she attended a Court Alcohol Substance Abuse Program D.U.I. School. The court records reflect Respondent's name as being Kay Starr Lawand.

15. There was only minor property damage as a result of the accident involving Respondent on December 12, 1994. No person was injured.

    CONCLUSIONS OF LAW

    
    

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

17. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services,

    550 So. 2d 112 (Fla. 1st DCA 1989).

    
    

18. Section 475.25, Florida Statutes, provides, in pertinent part, as follows:

    1. Discipline.

       1. The commission may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit

    for a period not exceeding 10 years; may revoke a license, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, registrant, permittee, or applicant:

    * * *

    
    

    (f) Has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the activities of a licensed broker or salesperson, or involves moral turpitude or fraudulent or dishonest dealing. 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.

    * * *

    
    

    (m) Has obtained a license by means of fraud, misrepresentation, or concealment.

    
    

19. Respondent's self-serving testimony that she believed that Question 9 only pertained to felony crimes, and that she did not intend to mislead anyone, is not persuasive. Anyone with the competence to practice real estate in Florida should be able to comprehend the question, the instructions, and the caveat set forth in the application in Question 9. Respondent knew or should have known that her answer to Question 9 was incomplete, deceptive, misleading, and false. Petitioner has established that Respondent violated the provisions of Section 475.25(1)(m), Florida Statutes, as alleged in Count I of the Administrative Complaint.

20. Respondent argues that Petitioner is estopped from

    disciplining Respondent as to Count I because it did not discover that Respondent had falsely answered Question 9 within the 90-day period the agency has to accept or reject a license application pursuant to Section 120.60, Florida Statutes. This argument is rejected as being without merit, and not worthy of further discussion.

21. Count II alleges that driving under the influence of alcohol, the charge to which Respondent entered a plea of nolo contendere on October 3, 1995, is a crime involving moral turpitude.

22. Both parties rely on Pearl v. Florida Board of Real Estate, 394 So. 2d 189 (3rd DCA 1981), which analyzed the meaning of the term "moral turpitude" and concluded, in pertinent part at 191, that:

    . . . moral turpitude involves duties owed by man to society, as well as acts "contrary to justice, honesty, principle, or good morals.

    
    

23. Among the definitions analyzed by the court in Pearl, supra, is the frequently cited definition of the term "moral turpitude" from Tullidge v. Hollingsworth, 108 Fl. 607, 146 So. 660, 661 (Fla. 1933):

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (Citations omitted).

    It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves questions of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

24. At issue in the case Pfeiffer v. Police Standards and Training Commission, 360 So. 2d 1326 (Fla. 1st DCA 1978), was whether a conviction of disorderly conduct constituted a conviction of a crime involving moral turpitude. The court, in an opinion that is consistent with Pearl, supra, stated, in pertinent part at 1327, as follows:

    We hold that a conviction for disorderly conduct is not necessarily a conviction of a crime involving moral turpitude. While there are certainly some factual circumstances surrounding a conviction for disorderly conduct which would involve moral turpitude, we cannot agree with the Commission that simply pleading guilty to disorderly conduct results in the conclusion that petitioner was convicted of a crime involving moral turpitude.

25. The undersigned recognizes that driving under the influence of alcohol is a serious offense that can present a danger to property and persons. However, based on the foregoing authorities, it is concluded that driving under the influence of alcohol is not necessarily a crime involving moral turpitude. As the court decided in Pfeiffer, supra, in dealing with disorderly conduct, whether driving under the influence reaches the level of a crime involving moral turpitude depends on the underlying facts. Petitioner did not establish that, under the facts of this case, Respondent's conviction of driving under the influence should be considered a crime involving moral turpitude. Consequently, Count II of the Administrative Complaint should be dismissed.

26. In its Proposed Recommended Order, Petitioner recommended the revocation of Respondent's licensure, but did not recommend the imposition of an administrative fine.

27. Rule 61J-24.001, Florida Administrative Code, contain disciplinary guidelines pertinent to this proceeding. For a violation of Section 475.25(1)(m), Florida Statutes, the recommended penalty is revocation of licensure and the imposition of an administrative fine in the amount of $1,000.00.

28. In determining the penalty that should be imposed against the Respondent for the violation of Section 475.25(1)(m), Florida Statutes, the undersigned has considered FDBPR

Case 97-90975, cited by Respondent, and FDBPR Cases 96-83598,

97-80874, 97-80982, 97-81478, and 97-82722, cited by Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be adopted that finds Respondent guilty of the violation alleged in Count I of the Administrative Complaint and orders that all licenses issued to her by Petitioner be revoked without prejudice to her right to reapply for licensure. It is further RECOMMENDED that Count II of the Administrative Complaint be dismissed.

DONE AND ENTERED this 30th day of March, 1998, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1998

ENDNOTE

1/ The transcript erroneously reflects that this case was heard by video teleconferencing.

COPIES FURNISHED:

Steven D. Fieldman, Esquire Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Frederick H. Wilsen, Esquire Gillis & Wilsen

1415 East Robinson Street, Suite B Orlando, Florida 32801

Henry M. Solares, Director Division of Real Estate Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

1 The transcript erroneously reflects that this case was heard by video teleconferencing.

Docket for Case No: 97-004516

Orders for Case No: 97-004516