STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK A. JULIANO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1683

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of Real Estate, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on December 1, 1981, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Frank A. Juliano, pro se

7648 Northwest 5th Street Plantation, Florida 33324

For Respondent: Jeffrey A. Miller, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301

BACKGROUND

These proceedings began on March 6, 1981 when Petitioner, Frank A. Juliano requested a hearing on the denial of his application for licensure as a real estate salesperson by Respondent, the Florida Board of Real Estate. On June 25, 1981 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. The hearing was noticed for and held on December 1, 1981.

At the hearing Petitioner presented himself as his only witness and offered Exhibits A-D. Exhibits A, C and D were received into evidence. Respondent presented no witnesses but offered Exhibits 1-3 which were received into evidence.

Because the Board's letter of denial to Petitioner is ambiguous 1/ it was stipulated upon the Hearing Officer's inquiry that the reason why Mr. Juliano's application was denied is that he failed to exhibit the good character required for a real estate salesperson.

At the conclusion of the hearing the parties were informed of their right to submit proposed Findings of Fact and proposed Recommended Orders. Section 120.57(1)(b)4. Florida Statutes (1981). Neither party indicated a desire to make such submissions.

ISSUE PRESENTED

Has Mr. Juliano demonstrated that he is honest, truthful, trustworthy, and of good character and has a good reputation for fair dealing as required by Section 475.17, Florida Statutes (1981)?

FINDINGS OF FACT

1. On February 12, 1981, Mr. Juliano filed an application for licensure as a real estate salesperson with the Florida Board of Real Estate. By a letter dated April 28, 1981, the Board denied Mr. Juliano's application. As stated by the letter, "the specific reasons for the Board's action is based on your answer to Question #6 of the licensing application and your criminal record according to the appropriate law enforcement agency."

   
   

2. Question #6 of the application asks:

   
   

   6. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled?

   
   

   Mr. Juliano responded "Yes" he had. The question further requested the details in full concerning any arrests. In response Mr. Juliano answered:

   
   

   Arrested for possession of canibus, [sic] pleaded guilty, placed on probation for 30 months. I am not on probation now.

   
   

3. On May 31, 1977, the Circuit Court in and for Seminole County, Florida, in Case No. 77-171-CFA, State of Florida v. Frank Arthur Juliano, entered judgment whereby Mr. Juliano who entered a plea of guilty to possession of controlled substances was placed on probation for a period of 30 months with adjudication of guilt withheld. Mr. Juliano successfully completed the terms of his probation which expired on November 30, 1979.

   
   

4. There was some confusion about the nature of the judgment entered by the Seminole County Circuit Court referenced above. Upon the receipt of Mr. Juliano's application for licensure the Board staff, as it customarily does, wrote a letter to him dated March 4, 1981 in which it requested additional information about the arrest mentioned in his answer to Question #6 on the application. In response to that inquiry Mr. Juliano obtained and sent to the Board a report from the Florida Department of Law Enforcement which indicates that Mr. Juliano was arrested on March 7, 1977 for the sale and delivery of controlled drugs. The report further indicates that adjudication was withheld and he was placed on probation for 30 months. A cursory reading of the report might cause the reader to believe that judgment was entered on a charge of sale and delivery. Such a reading would not be correct. Mr. Juliano did not enter a plea to the sale and delivery of controlled substances, but pled only to the

   charge of possession of controlled substances, a less serious crime. This fact is reflected in the actual Order of Judgment entered by the Seminole County Circuit Court.

   
   

5. Since his arrest and probation on the possession charge Mr. Juliano has not been arrested for or charged with any other criminal acts. He has subsequently led a law-abiding life and conducted himself in an honest and trustworthy manner.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

   
   

7. The requirements for licensure by the Florida Board of Real Estate are set out in Section 475.17, Florida Statutes (1981) which provides in pertinent part:

   
   

   1. An applicant for licensure who is a natural person shall be 18 years of age, a bona fide resident of the state, honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing. An applicant for an active broker's license or a salesman's license shall be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom he may undertake a relationship of trust and confidence. If the applicant has been denied registration of a license or has been disbarred, or his registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, any nation, possession, or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter, or if the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license under this

      chapter had the applicant then been registered, the applicant shall be deemed not to be qualified, unless, because of lapse of time

      and subsequent good conduct and reputation, or other reason deemed sufficient, it shall appear to the board that the interest of the public and investors will not likely be endangered by the granting of registration. (Emphasis added)

      
      

8. Grounds for revoking or suspending of a license which are referred to above are provided in Section 475.25, Florida Statutes (1981), which include:

   Been found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this state or any other state or of the United States, which crime directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing.

   
   

   Section 475.25(1)(f), Florida Statutes. Mr. Juliano has not been found guilty of any crime which directly relates to the activities of a licensed broker or which involves fraudulent or dishonest dealing. The question remains, however, whether or not he has been guilty of a crime involving moral turpitude.

   
   

9. The concept of moral turpitude was recently discussed in the real estate context by the District Court of Appeal, Third District in Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd D.C.A. 1981). Within the circumstances of the case the court held that a felony possession of narcotics was not necessarily a crime of moral turpitude. While the issue in Pearl was discipline and not initial licensure, 2/ the underlying analysis of Pearl is relevant here. I conclude that under the circumstances of the instant case that the crime to which Mr. Juliano pled guilty, possession of controlled substances, does not constitute moral turpitude for the purpose of denying him a license to practice real estate in Florida. This conclusion is supported by Mr. Juliano's subsequent law-abiding life. The taint of his past crime has been ameliorated by his subsequent good conduct and the lapse of time. Section 475.17(1), Florida Statutes (1981).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Board of Real Estate enter a Final Order finding Petitioner qualified pursuant to Section 475.17(1), Florida Statutes (1981) to take the licensing examination provided for in Section 475.17(5), Florida Statutes (1981), to be licensed as a real estate salesperson in the State of Florida.

DONE and ORDERED this 26th day of February, 1982, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1982.

ENDNOTES

1/ Bucell v. Department of Professional Regulation, Board of Real Estate, Case No. 81-552 (Florida Division of Administrative Hearings, Recommended Order June 15, 1981), adopted, 3 FALR 2025A (Florida Board of Real Estate, Final Order September 9, 1981).

2/ See the discussion in Bucell v. Department of Professional Regulation, supra.

COPIES FURNISHED:

Frank A. Juliano

7648 Northwest 5th Street Plantation, Florida 33324

Jeffrey A. Miller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301

C. B. Stafford Executive Director

Florida Real Estate Commission

400 West Robinson Post Office Box 1900

Orlando, Florida 32801

Docket for Case No: 81-001683

Orders for Case No: 81-001683