STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) ex rel. EDGAR M. GREENE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-215

) PROGRESS DOCKET NO. 2576

BERNARD L. BARKER t/a )

BARKER ASSOCIATES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

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 April 22, 1976 at Coral Gables, Florida.

APPEARANCES

For Petitioner: Manuel E. Oliver, Esquire

Associate Counsel

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: William S. Frates, Esquire

Concord Building, 12th Floor

66 West Flagler Street Miami, Florida 33130

By Information filed September 12, 1975 the Florida Real Estate Commission ex rel. Edgar M. Greene, seeks to revoke, suspend or otherwise discipline the registration of Respondent. As grounds there for it is alleged that Respondent was guilty of crimes involving moral turpitude; that he wrongfully comingled funds in his escrow account; that he affixed a notary seal to a check he had not seen the endorser sign and was convicted of said offense; and by reason of the above allegations, Respondent has been guilty of a course of conduct or practice which shows he is so incompetent, negligent, dishonest and untruthful, that the money, property, transactions and rights of investors, or those with whom he may sustain a confidential relationship, may not safely be entrusted to him.

At the commencement of the hearing Respondent's Motion to Quash was denied.

Said Motion is attached to the record. Thereafter three witnesses, including Respondent, testified and two exhibits were admitted into evidence.

FINDINGS OF FACT

1. At all times here involved Bernard L. Barker was a real estate broker registered by the Florida Real Estate Commission. The facts involved herein

   were undisputed. Bernard L. Barker was one of the famous, or infamous, "plumbers" involved in the break-in of the Democratic National Committee Headquarters at the Watergate Hotel in Washington, D. C. prior to the 1972 presidential election.

   
   

2. Exhibit 1, Judgment of the U.S. District Court for the District of Columbia shows he pleaded guilty and was so adjudicated on March 23, 1973 of the offenses of conspiracy, burglary, unlawful endeavor to intercept oral and wire communications, and unlawful possession of intercepting devices.

   
   

3. Exhibit 2, Bench Docket of the Criminal Court of Record, Dade County, shows that on November 1, 1972 Respondent was convicted of unlawful use of a notary seal and sentenced to 60 days imprisonment which was suspended upon 60 days probation.

   
   

4. Respondent freely admitted his part in the Watergate caper and that in so doing he was working under the direction and supervision of U.S. Governmental officials. He has worked for the C.I.A. off and on for many years and was instrumental in organizing the forces involved in the Bay of Pigs invasion. During this period Barker met Howard Hunt who was his, Barker's, superior in the C.I.A.

   
   

5. Respondent was contacted by Hunt around 1970 to organize a group for a national security mission to discover the source of leaks of classified information believed to be reaching the Soviets. When this group was organized Barker was in contact with Gordon Liddy who had an office in the White House. He met and talked to Liddy in his White House office.

   
   

6. At the time of the Watergate break-in Respondent believed he was engaged in undercover work for the U.S. Government and he was certainly working under the direction of an employee of the U.S. Government.

   
   

7. With respect to the deposit of checks in his escrow account that were not connected to a real estate transaction, Respondent freely admitted the deposit, not only of the $25,000 check alleged in the Information, but also four additional checks drawn on a Mexican bank with the total amount deposited amounting to $118,000. The purpose of the deposit was to "launder" the funds that were used in the break-in of the psychiatrist's office in California in the Ellsberg affair, as well as funds for the Watergate caper. It was in connection with the deposit of the $25,000 check that Respondent, after being assured by Liddy that the check was good and would be honored when presented for payment, placed the notary seal on the check. This resulted in his being convicted (Exhibit 2) of a misdemeanor in the second degree and placed on probation for 60 days. In these operations Respondent was operating under the direction and supervision of Hunt and Liddy.

   
   

   CONCLUSIONS OF LAW

8. Section 475.25 F. S. provides in pertinent part: "(1) The registration of a registrant may

   be suspended for a period not exceeding two years, or until compliance with a lawful order imposed in the final order of

   suspension, or both, upon a finding of fact showing that the registrant has:

   1. Been guilty of a crime against the laws of this state, or any other state, or of the United States, involving moral turpitude, or fraudulent or dishonest dealing; . . .

      
      

      1. Failed, if a broker, to immediately place, upon receipt, any money, fund, deposit, check, or draft, entrusted to him by any person dealing with him as a broker, in escrow with a title company or banking institution located and

         doing business in Florida, or, deposit said funds in a trust or escrow bank account main- tained by him with some bank located and doing business in Florida, wherein said funds shall be kept until disbursement thereof is properly authorized, . . .

         
         

         The commission shall establish rules and regulations to provide for records to be maintained by the broker in a manner in which such deposits shall

         be made.

         
         

         (3) The registration of a registrant

         may be revoked if the registrant . . . shall be found guilty of a course of conduct or practices which show that

         he is so incompetent, negligent, dishonest, or untruthful that the money, property, transactions and rights of investors, or those with whom he may sustain a confi- dential relation, may not safely be entrusted to him."

         
         

9. Rule 21V-14.01 F.A.C. provides in pertinent part:

   
   

   "(c) 'Trust' or 'escrow' account shall be construed to mean an account in a bank or trust company or title company having trust powers, within the State of Florida, properly only funds described in the preceding para- graphs shall be deposited, and in which no

   personal funds of any person shall be deposited; nor shall any such account, or any funds properly belonging therein be intermingled

   with any funds not held in escrow, trust, or on condition."

   
   

10. There is no question but the offense of burglary normally involves moral turpitude; therefore it is unnecessary to determine if the conspiracy and the two mala prohibita offenses involving interception of communication involve moral turpitude. However, it has been held that unless the offense is one by which its very commission implies a base and depraved nature, the question of moral turpitude depends not only upon the nature of the offense, but also on the attendant circumstances. Rudolph v. United States 6 F.2d 487 (App. DC) cert. den 269 U.S. 559.

11. While burglary was defined at common law as breaking and entering a dwelling house of another, in the nighttime, with intent to commit a felony therein, the legislatures have broadened the term to include buildings other than dwelling houses and other than in the nighttime. There is no question but that common law burglary involves moral turpitude; there may be some question whether the acts of Respondent herein involved moral turpitude.

    
    

12. The standard for moral turpitude is public sentiment, which changes as the moral opinions of the public change. 21 Am Jur Crim. Law. s. 24. It has also been held that moral turpitude inheres in the intent with which the offense was committed. United States ex rel. Meyer v. Day, 54 F.2d 336 (CA2).

    
    

13. Here the evidence was uncontradicted that the intent with which Respondent committed the offenses for which he was found guilty was not a criminal intent. While the law implies the necessary intent from the acts perpetrated the administrative process is not necessarily so bound. The courts had no need to find moral turpitude only that Respondent pleaded guilty to the offenses with which he was charged. Respondent's testimony that the offenses charged to him in the Information filed herein were committed by him with the intent to aid his adopted country is neither unbelievable, nor conflicting with any statements he previously made on the subject.

    
    

14. While motive is not an element in the commission of any of the offenses of which Respondent was convicted, it is not without value in determing whether the acts of Respondent exhibited those characteristics of baseness, vileness, or depravity associated with moral turpitude. Here Respondent's motives were patriotic, not criminal.

    
    

15. The offense of unlawful use of the notary seal certainly does not involve moral turpitude. It is an act malum prohibitum and the perpetrator thereof commits a misdemeanor in the second degree. The seriousness of this offense is exemplified by the punishment awarded by the court and then suspended during a period of probation of 60 days.

    
    

16. Respondent also acknowledged that he deposited a check in his escrow account not related to a real estate transaction as alleged in the Information. He further acknowledged laundering four additional checks through the escrow account. Here he was not involved with funds that came to him by virtue of his fiduciary relationship emanating from his registration as a real estate broker. While these funds were comingled with the trust funds in violation of s. 475.25(1)(i) Florida Statutes and regulations issued thereunder and above quoted, the motive or intent which accompanied these deposits were patriotic and not meretricious.

    
    

17. Finally Petitioner alleges that the course of conduct as noted above was of a nature to show Respondent is so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors, or those with whom he may sustain a confidential relationship, may not safely be entrusted to him. None of the offenses alleged in the Information involved a business transaction in which anyone suffered injury, financial or otherwise. The course of conduct in which Respondent was engaged consisted of only one operation that Respondent was told, and believed, involved the national security. This is not a course off conduct to show the Respondent real estate broker is not trustworthy to handle clients' funds in real estate transactions.

    
    

18. From the foregoing it is concluded that Respondent has been guilty of a crime against the laws of the United States involving moral turpitude, that he

    comingled funds in his escrow account in violation of s. 475.25(1)(i) F.S. and Rule 21V-14.01(c) and that he has not been guilty of a course of conduct of a nature to show he is so incompetent, negligent, dishonest and untruthful, that the money, property, transactions and rights of investors may not safely be entrusted to him.

    
    

19. It is further concluded that Respondent, Bernard L. Barker, has been adequately punished for his complicity in the affairs exposed following his arrest at the Watergate Hotel and that none of those offenses are of a nature to warrant severe disciplinary action against Respondent's registration. It is therefore,

RECOMMENDED that Respondent, Bernard L. Barker, be issued a letter of admonition for using his escrow account for a matter not associated with a real estate transaction.

DONE and ENTERED this 20th day of May, 1976, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 76-000215

Orders for Case No: 76-000215