STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-673

)

JOHN X. ARCHER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on July 27, 1978 in the Pompano Beach Community Correctional Center, 5600 N.W. 9th Avenue, Ft. Lauderdale, Florida 33309, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented upon an administrative complaint filed by the Florida Real Estate Commission against John X. Archer which charged Archer with violations of Section 475.25(1)(e) Florida Statutes, in that he had been found guilty of a crime against the laws of this state involving moral turpitude, or Fraudulent or dishonest dealing and of Section 475.25(2), Florida Statutes, that he is confined in a state or federal prison.

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Staff Attorney

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

For Respondent: Michael H. Bloom, Esquire

2699 South Bayshore Drive, Suite 500B Coconut Grove, Florida 33133

The Florida Real Estate Commission presented evidence that John X. Archer was arrested, tried, convicted, and eventually sentenced to three years in the state correctional system for the possession of cannibis sativa (marijuana).

The evidence presented showed that Archer was arrested for possession of approximately 3,000 pounds of marijuana and is presently an inmate of Pompano Beach Correctional Center where Archer is participating in a work release program. Archer presented evidence that his possession of the marijuana was as an employee of the principals of a drug smuggling operation in which he was promised $250,000 to help bring the contraband marijuana ashore. Archer also presented evidence regarding the details of his participation in the work release program.

ISSUES

The two issues of law were stated by the parties as:

1. Is having been found guilty of possession of three tons of a controlled substance, cannibis sativa (marijuana), a crime of moral turpitude, as that term is used in Section 475.25(1)(e), Florida Statutes?

   
   

2. Is confinement in the state correctional system on a work release program, "confinement within a state prison" within the meaning of Section 475.25(2), Florida Statutes?

FINDINGS OF FACT

1. John X. Archer is a real estate salesman holding registration number 0141037 issued by the Florida Real Estate Commission.

   
   

2. John X. Archer was arrested in November or December of 1975 while he was alone aboard a boat loaded with approximately 3,000 pounds of cannibis sativa (marijuana) with another boat loaded with approximately 3,000 pounds of marijuana tied to the boat which Archer was on. Archer admitted that he had been hired to drive and unload the boats for $250,000.

   
   

3. Archer was tried, convicted, and sentenced to five years in the state correctional system for the felony of possession of a controlled substance contrary to Section 893.13(1)(e), Florida Statutes. His sentence was later reduced to three years upon the recommendation of the state's attorney and the arresting officer, who recommended that his sentence be reduced to one year, due to his minimal involvement. By an amended sentence, Archer was committed to the custody of the Department of Offender Rehabilitation (now Department of Correction).

   
   

4. Archer is now an inmate of the Pompano Beach Community Correctional System, a facility of the Department of Corrections. Archer is on a work release program in which he is permitted to work in the community, drive his private vehicle to and from work, and is permitted to attend approved extra curricular activities. One such activity is the Junior Chamber of Commerce. Archer is an internal director of the Pompano Beach J.C.`s, and was recently permitted to attend the state J.C. convention. Archer can check out of the Pompano Beach Community Correctional Center whenever it is necessary for his employment which is as a salesman for a local marine electrical company. His employer is aware of Archer's conviction and his present participation in the work release program. His employer trusts Archer, considers that he does his job well, and trusts Archer with monies paid on deposit for the installation and purchase of marine electrical equipment. Archer's correctional counselors consider him dependable and have given him near excellent ratings. His counselors feel Archer is participating completely in the work release program. Archer uses his earnings from his employment to pay his room and board at the facility, to pay support to his children pursuant to a divorce decree, and is permitted to save any remaining monies pending his release.

   
   

5. Archer appeared at the hearing and testified. Archer was well dressed and groomed and presented a good impression. His testimony was straight forward and he freely admitted his participation in the crime for which he was arrested, not excusing his conduct in any manner. Archer specifically commented that the offer of $250,000 for his participation in the crime was not worth it, and that his arrest and participation in the work release program had benefited him

   personally. Archer has accepted personal responsibility for his employment, his family, and his culpability for his criminal act. His attitude was one of willing participation in the work release program without any expectancy of privileges or early release. Archer appeared sincere in his desire to be permitted the opportunity to remain a real estate salesman and to return to real estate sales as a means of earning his livelyhood upon his release. He stated, and his testimony was supported by others in the real estate business who had known him, that he was a good salesman. Although Archer could have sought employment under the work release program with a real estate broker, he stated that he had not wanted to do so with the charges pending against him. He explained that this was in part because he wanted to establish a secondary employment and in part to avoid any potential embarrassment to his broker and the real estate community. His reputation for honest, integrity and truthfulness prior to his criminal act and since being on work release were attested to by several witnesses. Two persons who were in real estate indicated their willingness to hire Archer although he was on work release if the conditions of his work release, with which they were not totally familiar, would permit him to fully participate in his employment.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Florida Real Estate Commission has charged John X. Archer with violations of Section 475.25(1)(e) and (2), Florida Statutes. As stated above, the first issue involved is whether possession of three tons of a controlled substance, marijuana or cannibis sativa, which is a felony under the laws of the State of Florida, is a crime of moral turpitude? This is considered in light of the fact that the individual was not a principal to the sale of the controlled substance but was directly involved in smuggling the contraband.

   
   

7. It is argued by counsel for the Respondent that the use of marijuana is so wide spread that its possession is not a crime of moral turpitude even when smuggling it for sale. This argument is rejected. The basis for rejection of this argument is that the quantity possessed is a clear indication of the participation of Archer in a scheme which would have resulted in the eventual illegal sale of the drug. While use of marijuana is apparently gaining a degree of social acceptance, its possession is still illegal. The smuggling and trafficing in this drug have led to many violent acts. As evidenced by Archer's statement that he was offered $250,000 for his participation in landing and unloading the contraband, this is a lucrative, sometimes violent business which contributes in itself to many evils. The facts in this case show that this was not mere possession of several marijuana cigarettes, but was possession of three tons of the drug intended for eventual illegal sale. Although Archer's role was limited to driving and unloading the boats, he was an accessory to the ultimate sale and a direct participant in the act of smuggling. There is, and must be, a distinction between possession and possession of quantities that indicate an individual is participating in the illegal trafficing in controlled substances. Therefore, the fact that Archer possessed quantities of a controlled substance indicating participation in a scheme to eventually sell the contraband constitutes a crime of moral turpitude as that term is used in Section 475.25(1)(e), Florida Statutes.

   
   

8. The second issue is whether Archer's participation in the work release program as an inmate of the Pompano Beach Community Correctional Center is confined within the meaning of Section 475.25(2), Florida Statutes?

   
   

9. Black's Law Dictionary, Revised Fourth Edition, defines confinement as "either a moral or a physical restraint..." As an inmate of Pompano Beach

   Community Correction Center, Archer Is primarily under a moral restraint. Archer's conduct in the program is near excellent and he is adhering to those restraints; however, he is restrained or confined by the regulations governing inmates in this program as imposed by the State Prison System.

   
   

10. Section 475.25(2), Florida Statutes, is a mandatory provision. The statute does not grant the Commission any discretion in the exercise of the authority granted to revoke a license. Once a finding is made that a salesman or broker is confined in a state prison, the Commission must revoke his registration. This is a stark and ironic contrast to the provisions of Section 475.25(1), Florida Statutes, which grant the Commission the discretion to suspend up to two years but deny the authority to revoke, even for a violation of Section 475.25(1)(e), Florida Statutes, discussed above. As a result, the Commission can only suspend for a maximum of two years the registration of an individual who is found guilty of a very heinous crime involving moral turpitude. However, the Commission must revoke if a registrant is imprisoned in a state prison for any offense. Further, Attorney General Opinion 73-355 provides that pursuant to the provisions of Section 112.011, Florida Statutes, licensing authorities may not deny license to former offenders whose civil rights have been restored unless the licensing authority determines and finds

    (1) that the offense directly relates to the license sought or held and (2) that the crime is a felony or first degree misdemeanor. The effect of this attorney general's opinion is that an individual whose license is revoked because of his confinement may reapply for licensure and may not be denied a license unless it is determined that the offense of which he was found guilty was a felony or first degree misdemeanor which directly relates to the license which he is seeking.

    
    

11. Clearly, the provisions of Section 475.25(2), Florida Statutes, are out of harmony with other sections of the statute as they have been interpreted by the courts and the attorney general. Consideration needs to be given to authorizing the Florida Real Estate Commission to revoke the license of a registrant found guilty of a crime involving moral turpitude and bearing directly upon his licensure as a real estate broker or salesman and granting the Commission authority to exercise its discretion in suspending, revoking, or taking no action against a registrant who is confined in a state or federal prison. The current status of the law leads to absurd results which were unforeseen when the law was enacted. However, it is not appropriate for the executive or judicial branch to stretch the plain meaning of words and strain the logical construction of the law to ameliorate or eliminate such results. Therefore, John X. Archer is guilty of a violation of Section 475.25(2) in that his participation in a work release program in a Pompano Beach Community Correctional Center is confinement within a state prison within the meaning of Section 475.25(2), Florida Statutes.

RECOMMENDATION

As stated above, the law leaves no room for consideration of the actual merits of this case. Archer is confined in a state prison within the plain meaning of the work "confined", and the statute grants the Florida Real Estate Commission no discretion. Therefore, there is only one result permitted, the revocation of the license of John X. Archer. However, the facts indicate that Archer is progressing excellently in his rehabilitation and he conducts himself in a manner that indicates that he is willing to accept responsibility for himself, his family, and the community. Although his crime involved moral turpitude, it did not involve a transaction or situation which would arise in the practice of real estate. The evidence shows that Archer deals honestly with

his current employers and clients and acts responsibly in conducting his affairs. The evidence further shows that he dealt honestly with his clients in real estate transactions prior to his criminal act. He had, and is reestablishing, a reputation for honesty, truthfulness and fair dealing. Based upon these facts, the Hearing Officer would recommend that the Florida Real Estate Commission give consideration to the reinstatement without examination of Archer's registration upon his release from confinement from the prison system conditioned upon Archer's continued good progress in the work release program and upon the affirmative recommendation of his correctional counselors at the time of his release.

DONE AND ORDERED this 15th day of August, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Michael H. Bloom, Esquire 2699 South Bayshore Drive Suite 500 B

Coconut Grove, Florida 33133

Docket for Case No: 78-000673

Orders for Case No: 78-000673