STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1730

)

JEFFRY G. PEARL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in the above styled cause beginning at 10:30 o'clock a.m. October 24, 1979, in the Conference Room of Suite 874, 401 Northwest Second Avenue in Miami, Florida, before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark A. Grimes, Esquire

Board of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Scott T. Eber, Esquire

151 South East 14th Terrace Miami, Florida 33131

ISSUE

Whether the Respondent's real estate license #0067819 should be suspended, or whether he should be otherwise disciplined.

FINDINGS OF FACT

1. The Respondent, Jeffry G. Pearl, is a registered real estate salesman and was so registered at all times pertinent to this hearing. An Administrative Complaint was issued against him on June 27, 1979. An answer was filed on July 30, 1979, together with a Motion to Quash and a request for an administrative hearing. The Petitioner Commission forwarded the request to the Division of Administrative Hearings on August 7, 1979. The Motion to Quash was denied September 13, 1979, after review of the Memorandum of Law submitted.

   
   

2. Prior to the beginning of the formal hearing, the Respondent re-argued the Motion to Quash, challenging inter alia the constitutionality of the statute under which the complaint was issued. The Motion was again denied. Count II of the previously filed Administrative Complaint was dropped upon an oral motion to amend by the petitioner Commission.

3. On September 15, 1978, Respondent Pearl was arrested and charged with possession of controlled drugs, driving under the influence, and possession with intent to distribute, contrary to Sections 893.13 and 316.193, Florida Statutes. Respondent pleaded guilty on February 9, 1979, to possession of controlled substances [three (3) counts] and was convicted of the offenses on that date. The imposition of sentence was stayed and withheld, and he was placed on probation and released into the custody of the Department of Offender Rehabilitation for a term of five (5) years. The condition of probation was that he pay a fine of $5,000.00. The Respondent is now and has been on probation since February 9, 1979, and is subject to terms and conditions "to be set forth by further order of the court."

   
   

4. Respondent Pearl admitted that on September 15, 1978, he was driving in Miami, Florida, and was arrested while under the influence of drugs. A large amount of cash and drugs was found in his automobile. The Respondent admitted that he had been addicted to drugs of all types, including marijuana and cocaine. After his arrest Respondent was imprisoned, but before his case came to trial he entered a hospital in Miami, Florida, and thereafter went to the Palm Beach Institute, a treatment center aligned with Alcoholics Anonymous and Narcotics Anonymous. He was discharged from the Palm Beach Institute in January of 1979, and has continued treatment on an outpatient basis. The Respondent stated that he has been drug-free since January of 1979, and that he started back to work with Miami Beach Realty on a full-time basis in April of 1979.

   
   

5. Respondent Pearl presented as a witness Dr. Jose Almedia, a physician specializing in psychiatry. Dr. Almedia stated that the Respondent had not taken drugs of any kind to his knowledge from October of 1978, to September of 1979. He said that the Respondent is at present mentally clear, pleased with himself and his family, and that he is a completely different person from the time he first saw him in 1978. Dr. Almedia said that he believes the Respondent has turned his life around, and that since he has a job and goals the Respondent now has something for which to look forward.

   
   

6. A second witness for Respondent Pearl was Melvin Black, an attorney specializing in criminal law. Mr. Black stated that the Respondent had originally been incarcerated for about a week, and that after he, as Respondent's attorney, had obtained a bond for the Respondent he became concerned not only with the criminal charges against the Respondent but also with his well-being.

   
   

7. Black advised the presiding judge that Respondent Pearl was undergoing treatment, that he had voluntarily admitted himself for treatment, and the circuit judge had postponed the proceedings pending the completion of the treatment. Thereafter, about five (5) months later, a plea of guilty to the three (3) counts of possession of drugs was entered. Charges as to driving under the influence and possession with intent to distribute were not pressed.

   
   

8. The probationary sentence and fine were the results of Respondent Pearl's conviction on the charges to which he had pleaded guilty. Certified copies of said conviction were entered into evidence.

   
   

9. Respondent submitted a memorandum of law on December 7, 1979. The memorandum has been considered in the writing of this order. No memorandum was submitted by the Petitioner Board.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative !learings has jurisdiction over the matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

    
    

11. Section 475.25 Grounds for revocation or suspension.-- provides:

    
    

    1. The registration of a registrant may be suspended for a period not exceeding 10 years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has: . . .

       
       

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

       
       

12. Respondent Pearl entered a plea of guilty to three (3) counts of possession of a controlled substance, a felony prohibited by Section 893.13, Florida Statutes, and was convicted on three (3) counts of possession of a controlled substance.

    
    

13. Suspension or revocation of the Respondent's license is dependent upon whether the crime of which he was convicted involved "moral turpitude."

    
    

    "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.

    
    

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

    
    

    State ex rel Tullidge Hollingsworth, Fla., 146 So. 660; Carp v. Florida Real Estate Commission, Fla., 211 So.2d 240.

    
    

14. The Hearing Officer finds that a registered real estate salesman who has been convicted of three (3) counts of possession of a controlled substance has been guilty of a crime against the laws of this State involving moral turpitude.

RECOMMENDATION

Inasmuch as the Respondent, Jeffry G. Pearl, has embarked on a strenuous period of rehabilitation and appears to be successful at this point in time, it is recommended that his license be suspended for a period of sixty (60) days

from the date of this order, and that after the expiration of said suspension an investigation be made by the Petitioner Commission to determine whether such suspension should be extended.

DONE and ORDERED this 19th day of December, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1979.

COPIES FURNISHED:

Mark A. Grimes, Esquire Board of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Scott T. Eber, Esquire

151 South East 14th Terrace Miami, Florida 33131

Docket for Case No: 79-001730

Orders for Case No: 79-001730