FLORIDA REAL ESTATE COMMISSION, ) ex rel. ROBERT C. PRUYN )
vs. ) CASE NO. 75-1773
) P.D. 2739
CLYDE A. FETTERS, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on March 26, 1976 at Boca Raton, Florida.
For Petitioner: Manuel E. Oliver, Esquire,
Clyde A. Fetters, testified in his own behalf.
By Administrative Complaint filed September 15, 1975 the Florida Real Estate Commission ex rel. Robert C. Pruyn, seeks to revoke or suspend the registration of Clyde A. Fetters, Respondent, both as a real estate salesman and a broker on the grounds that in failing to include all offenses for which he was arrested or charged on his application for registration he obtained his registration by means of concealment in violation of 475.25(2) F.S. One witness testified on behalf of Petitioner, two exhibits were admitted into evidence, and Respondent testified in his own behalf. After having considered all evidence the following is submitted.
Respondent is duly registered as a real estate salesman and as a broker by Florida Real Estate Commission. On his application for registration as a salesman, in answer to question 9 on the application as to whether he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, he answered "yes" and completed the "If yes, state details in full" part of the question with "traffic citation (speeding) 1970." On his application for registration as a broker some 16 months later he answered Question 9 "no".
Exhibit 2, a certified copy of the court of record of Broward County, shows that on April 28, 1970, Respondent pleaded nolo contendere to the offense of attempted bookmaking and was fined $50.
When questioned by the investigator for the Florida Real Estate Commission prior to the filing of this information, Respondent admitted that he had been arrested in California in 1960 and 1961 on charges of suspicion of assault and a traffic offense involving driving while under the influence of intoxicants.
Testifying in his own behalf Respondent acknowledged that he had inadvertently failed to include those arrests on his application, and that in so doing he had no intention to conceal those arrests. The arrests for suspicion of assault involved a marital dispute with his former wife and those charges were dismissed. On the DWI charge he was fined $150. The breathalizer test he had taken was borderline and he was advised by the Public Defender that if he pleaded guilty he would be fined $150 as a first offender and if he employed the services of a lawyer to contest the charge the attorney's fee would be at least
$250. He pleaded guilty to the charge.
The attempted bookmaking arrest occurred while he was working in a bar in Deerfield Beach. The police suspected this bar was involved in bookmaking. Fetters had worked there only a week or two when two undercover agents, who had patronized the bar on a daily basis for several days, asked him to place a bet for them. He told them he had no information on how to place a bet, but after they insisted he took their money and made a call to someone he knew in Miami. The undercover agents then identified themselves and arrested him.
Respondent holds a Cosmetology license in California, and an insurance salesman's license. He is currently working for Nichols' Realty in Boca Raton.
His broker, Roy Nichols, has known Respondent for about three years and Respondent's reputation in the community is excellent. He has found Respondent's conduct exemplary both as a real estate salesman and as a family man.
CONCLUSIONS OF LAW
Respondent is charged with having obtained his registration by means of fraud, misrepresentation or concealment. Section 475.25(2) F.S. provides in pertinent part:
"The registration of a registrant shall be revoked, if such registration, or a certificate issued thereon is found to have been obtained by the registrant by means of fraud, misrepresentation, or concealment, . ."
Section 475.17 F.S., in listing the qualifications of applicants for registration, provides in part:
"If it shall be made to appear . . . that the applicant has been guilty of conduct or practice in this state which would have been grounds for revoking or
suspending registration under this chapter
had the registrant been registered, the applicant shall be deemed to be not qualified
Grounds for suspension of a license are contained in 475.25(1) which provides in part that a registration may be suspended if the registrant has:
"(a) Been guilty of fraud, misrepresentation, false promises, false pretense, dishonest dealings, trick, scheme or devise,
culpable negligence or breach of
trust in any business transactions; or
* * *
Violated any of the provisions of this chapter or any lawful order, rule or regulation made or issued under the provisions of this chapter; or
* * *
Been guilty to a crime against the laws of this state or any other state or of the United States, involving moral turpitude, or fraudulent or dishonest dealings; . . ."
Thus one ground for revocation of a registration is that the registrant obtained his license by concealing the commission of an offense which would have disqualified him had the facts involving the offense been known. Applying the above quoted provisions of the statute to the instant case the question to be resolved is: Had the applicant listed on his application the offenses to which Exhibit 2 and his own admissions relate, would the commission have been justified in denying his application? If so, then his registration is subject to revocation pursuant to 475.25(2) F.S. above quoted. If not, then his registration is not subject to revocation under these provisions of the statute. Unless having been guilty of the offenses referred to above would have been grounds for denial of Respondent's application, his failure to include those charges or arrest on his application could not have affected the approval of his application.
This leaves the question whether or not any of the offenses for which Respondent has been arrested would constitute grounds for suspension of a license if a registrant had been guilty of their commission. None of those offenses involve fraud etc. in a business transaction, and it is obvious that neither the offense of suspicion of assault or DWI involves moral turpitude. The only serious question is whether or not the offense of bookmaking or attempted bookmaking constitutes a crime involving moral turpitude.
Bookmaking is an offense malum prohibitum, not malum in se. The offense of bookmaking is a misdemeanor in the first degree under the Florida Statutes. While some misdemeanors are malum in se, bookmaking is not one of those. Accordingly, the commission of attempted bookmaking under the circumstances here involved is not offense involving moral turpitude nor does it constitute fraud, etc. in a business dealing.
In Kosercwitz v. A.J. Stack, 219 So.2d 649 (App. 1968) the Commission sought to revoke registrant's certificate as a real estate salesman on the ground that in answering "no" to a question on his application pertaining to having done business under another name, which answer was false, he had obtained a certificate by misrepresentation and concealment in violation of 475.25(2)
F.S. The court stated:
"The count fails to show that the incorrect or false answer to the question as to the use of another name (which the law does not prohibit when used for proper purposes) was the basis or cause of the issuance of the renewal
certificate. There is no allegation that the renewal would not have been issued if
the fact of use of another name on some prior occasions had been disclosed. In the absence
of such an allegation or a showing or allegation of some established policy or regulation which would preclude a registrant who previously
had used another name from being entitled
to obtain a renewal certificate the count no sufficient showing that the renewal certificate was obtained' by or because of the concealment of that fact; and the statement that it was,
as an unsupported conclusion, did not serve to cure the material defect in the count."
While the possibility exists the registration of Fetters could have been suspended pursuant to 475.25(1)(d) F.S. for violating any provisions of Chapter 475, F.S. or rules of the Commission (e.g. Rule 212.01 F.A.C.) he was not charged under this provision of the statute, and this provision is therefore not available to these proceedings.
From the foregoing it is concluded that the registration of Charles A. Fetters cannot be revoked pursuant to 475.25(2) F.S. on the grounds that be failed to list on his application all of the offenses of which he had been charged or arrested. It is therefore
RECOMMENDED that the information filed against Charles A. Fetters on September 15, 1975 be dismissed.
DONE and ENTERED this 29th day of April, 1976 in Tallahassee, Florida.
K. N. AYERS Hearing Officer
