STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2591

)

JOHN L. NUCCITELLI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on August 26, 1982, in Orlando, Florida. The transcript was filed on September 13, 1982, and the parties were allowed 15 days thereafter to submit proposed findings of fact and conclusions of law. This time was extended to October 8, 1982, and the time for submission of this Recommended Order was extended to November 8, 1982.

The proposed findings and conclusions filed by the parties have been considered. Where not adopted, they were found to be irrelevant, immaterial, or contrary to the weight of evidence.

APPEARANCES

For Petitioner: John Huskins, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Richard J. R. Parkinson, Esquire

603 East Central Boulevard Orlando, Florida 32801

By Administrative Complaint issued on May 22, 1980, the Respondent was charged with having been found guilty of a crime against the laws of another state involving moral turpitude, in violation of Section 475.25(1)(f), Florida Statutes. Specifically, the Complaint alleges that the Respondent was found guilty in the State of South Carolina of "possession of marijuana with intent to distribute", which subjects him to discipline by the Real Estate Commission under Section 475.25(1), Florida Statutes.

In support of the Administrative Complaint, the Petitioner presented five exhibits which were received in evidence by stipulation. The Respondent testified in his own behalf, and presented three character witnesses and one exhibit which was received in evidence by stipulation.

FINDINGS OF FACT

1. The Respondent, John L. Nuccitelli, is a licensed real estate broker, having been issued License Number 0064764, and he was so licensed at all times material to the issue in this proceeding.

   
   

2. On August 20, 1979, an arrest warrant was issued in Lancaster County, South Carolina, directing that the Respondent be arrested on the charge of possession of marijuana with intent to distribute, in that he flew into the Lancaster County Airport in a Douglas DC4 four engine aircraft with approximately 131 bales of marijuana.

   
   

3. The Respondent was subsequently indicted for this offense, and on December 4, 1979, he was found guilty in the Court of General Sessions in and for Lancaster County, South Carolina, of the crime as charged.

   
   

4. Thereafter, the Respondent was sentenced to imprisonment for a term of five years, and a fine of $5,000, with the provision that the prison term would be reduced to probation for five years upon payment of the $5,000 fine.

   
   

5. On July 29, 1982, the Respondent having paid the fine imposed and having fulfilled the conditions of his probation, the Court entered its Order relieving the Respondent from the sentence previously imposed, and discharging him from further probation.

   
   

6. The Respondent had not been involved with the law prior to the incident in question, and has not been so involved since this incident. He realizes that he made a serious mistake, one which has adversely affected both himself and his family. He is the sole support of his wife and five children, and he has only done work in the real estate field since leaving the Air Force.

   
   

7. The Respondent and his wife have been married eight years. They have two children of their own, and three children by a prior marriage. The Respondent is a caring husband and father. He is trusted by those persons in the community who know him.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 475.25(1)(f), Florida Statutes, provides that a real estate license may be suspended or revoked if the licensee has "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."

   
   

10. The Petitioner cites the case of Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981), as authority for the principle that possession of marijuana with intent to distribute is a crime involving moral turpitude. However, the holding in Pearl was that mere possession of a controlled substance is not a crime involving moral turpitude under Section 475.25, Florida Statutes. This case is not authority for the principle urged by the Petitioner.

11. Nevertheless, the act for which the Respondent was arrested and found guilty in this case is different from "mere possession" of marijuana, or even "possession with intent to distribute" a small amount of the substance. The act of flying a total of 131 bales of marijuana into a locality in a four engine aircraft evidences an intent to distribute, or to cause the distribution by sale, of the substance on a massive scale. Distribution of marijuana in such a quantity indicates an intent to engage in an illegal business operation with illegal profits as the major purpose, to the detriment of the public in general.

    
    

12. The Pearl case (supra) found that the intent underlying the enactment of Chapter 475, Florida Statutes, is to insure the protection of the public from unscrupulous and dishonest real estate brokers. The act of flying 131 bales of marijuana into a locality with intent to distribute this illegal substance, as the Respondent was charged, is an act which places the public well being in jeopardy, and thus is an act which involves moral turpitude under Section 475.25(1)(f), Florida Statutes. Such an act is one from which this statute was designed to protect the general public.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that License No. 0064764 held by the Respondent, John L.

Nuccitelli, be REVOKED.

THIS RECOMMENDED ORDER entered on this 1st day of November, 1982.

WILLIAM B. THOMAS, 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 1st day of November, 1982.

COPIES FURNISHED:

John L. Huskins, Esquire Department of Professional

Regulation - Legal Section Post Office Box 1900

Orlando, Florida 32802

Richard J.R. Parkinson, Esquire 603 East Central Boulevard Orlando, Florida 32801

William M. Furlow, Esquire Department of Professional

Regulation - Legal Section Post Office Box 1900

Orlando, Florida 32802

Carlos B. Stafford, Executive Director Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002591

Orders for Case No: 81-002591