STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Plaintiff, )

)

vs. ) CASE NO. 77-1205

)

JOSEPH PINE, )

)

Defendant. )

)

RECOMMENDED ORDER

This case was heard on September 28, 1977, in the Conference Room of the Florida Real Estate Commission offices at 717 Ponce de Leon Boulevard, Coral Gables, Florida. The hearing was on the allegation contained in the Administrative Complaint filed by the Florida Real Estate Commission against Joseph Pine alleging that he was in violation of Section 475.25(1)(e), Florida Statutes, having plead guilty to the possession of a controlled substance, cannabis, over five (5) grams. This hearing was conducted by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

At the hearing the Florida Real Estate Commission introduced certified records of the Florida Real Estate Commission showing Pine was a registrant and certified copies of the records of the clerk of the court showing that Pine had plead guilty and the court had withheld adjudication. This raised two issues:

1. Does withholding adjudication after a plea of guilty constitute having been guilty of a crime, and (2) Does the possession of a controlled substance, cannabis, over five (5) grams constitute a crime of moral turpitude?

   
   

   APPEARANCES

   
   

   For Petitioner: Manuel E. Oliver, Esquire

   Florida Real Estate Commission 2699 Lee Road

   Winter Park, Florida 32789

   
   

   For Respondent: Harry L. Garber, Esquire

   Garber & Buoniconti, P.A.

   1040 City National Bank Building

   25 West Flagler Street Miami, Florida 33130

   
   

   FINDINGS OF FACT

   
   

   1. Joseph Pine is a registered real estate salesman holding license certificate number 0131432 and was so registered on December 6, 1976.

      
      

   2. Joseph Pine entered a plea of guilty to the possession of a controlled substance, cannabis, over five (5) grams. The court withheld adjudication and

      placed Pine on supervised probation for three (3) years because Pine was living in Quba, Netherlands Antilles.

      
      

   3. The possession of a controlled substance, cannabis, is a violation of Section 893.13(1)(a)2., Florida Statutes. This is a felony of the third degree.

      
      

      CONCLUSIONS OF LAW

      
      

   4. Section 475.25(1)(e), Florida Statutes, provides that a registrant may have his license suspended for up to two (2) years for having been guilty of a crime against the laws of Florida involving moral turpitude.

      
      

   5. The parties have submitted briefs on the issues involved which have been considered. Concerning the first issue, the entering of a plea of guilty has the same, if not greater, weight as a similar finding by a judge or jury.

      
      

   6. Possession of cannabis does not constitute dishonest dealing or fraud. The Commission argues that it constitutes a crime involving moral turpitude, and cites Raines v. State, 225 So.2d 330 (Fla 1969) in support of its argument. Raines is a case involving the sale of cannabis or marijuana. There are no facts in the instant case which show that Pine was guilty of any offense other than possession. Therefore, the issue is whether possession of cannabis, which is a crime against the Laws of Florida, involves moral turpitude. This aspect of this case was discussed in relationship to an alleged violation of Section 475.25(1)(e), Florida Statutes, in the case of Florida Real Estate Commission, Charles F. Borer v. Richard R. Villanueva, D.0.A.H. #76-1964, 39 F.D.0.A.H.

1. In that case the Hearing Officer concluded that possession alone in the absence of some evidence of the quantity or the circumstances surrounding the possession does not involve moral turpitude. The undersigned adopts the conclusions of law in Villanueva, cited above, with the following additional comments.

   
   

   1. Although Pine plead guilty to possession of more than 5 grams of cannabis which is a felony, a felony per se does not involve moral turpitude in the absence of an independent showing that the alleged activity is base, vile, depraved or involves fraud.

      
      

   2. The burden of proof lies with the Florida Real Estate Commission and it has the resources, both financial and manpower, to develop and present evidence concerning the circumstances and quantity possessed to support its allegations that the Defendant's offense involved moral turpitude. This is as much an element of violation of Section 475.25(1)(e) as proof of guilt. This requires clear and convincing proof, not assumptions, and there are no presumptions which attach to mere possession, which is an offense malum prohibitum.

      
      

   3. The Commission has not presented independent evidence of the circumstances or quantity possessed by Pine. In the absence of such evidence this element is not proven, and the violation is not proven.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends the case be dismissed and no action be taken.

DONE and ORDERED this 7th day of November, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1977.

COPIES FURNISHED:

Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Harry L. Garber, Esquire Garber & Buoniconti, P.A.

1040 City National Bank Building

25 West Flagler Street Miami, Florida 33130

Docket for Case No: 77-001205

Orders for Case No: 77-001205