vs. ) CASE NO. 81-2946
Respondent. )
This matter came on for hearing in Brookville, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on March 10, 1982. The Division of Administrative Hearings received the transcript of proceedings on March 22, 1982.
For Petitioner: Appeared on his own behalf For Respondent: Jeffrey A. Miller, Esquire
After petitioner filed an application for licensure as a real estate salesman, dated July 18, 1981, Ms. Lawson wrote him on behalf of the Board of Real Estate on October 23, 1981, that the "Board had determined that . . . [petitioner was unqualified] based on [his] answer to question #6 of the license application." Joint Exhibit No. 1. The letter cited Sections 475.17(1) and 475.25, Florida Statutes.
Petitioner Donald Greig Shephard, Jr., is a 35-year-old Minnesotan who moved to Florida in May of 1979. He is a businessman who has been married approximately five years. He owns a home in Spring Hill, Florida.
He received the bachelor's degree in business administration from the University of Minnesota in 1970. In the mid-70s, he started his own retail business in Minnesota, Phoenix Sound and Video. At this time, he was a regular user of cocaine and, over a period of six months, sold the drug in one-gram quantities as a means of paying for his own habit. When the authorities apprehended one of the persons to whom petitioner had sold cocaine, he identified petitioner as the source of the drug and petitioner was eventually convicted, on a plea of guilty to count one of a three-count indictment charging unlawful distribution of cocaine, in July of 1978. "On January 4, 1979, the Honorable Miles W. Lord, U.S. District Court Judge, District of Minnesota,
committed [petitioner] to the custody of the Attorney General for imprisonment for a term of three years; on the condition that [he] be confined in jail type or treatment institution for a period of six months, the execution of the remainder of the sentence of imprisonment suspended and [his] being placed on probation for a period of two and one-half years." Joint Exhibit No. 1.
Question No. 6 on the form application petitioner furnished respondent asked:
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 vio-
lations), without regard to whether convicted, sentenced, pardoned or paroled?
To this petitioner answered: "Yes." Question No. 6 further directed, "If yes, state details including the outcome in full". In response to that, petitioner stated:
Possession of a controled [sic] substance (cocaine) 1.5 gram, 3 year probation in Minnesota, July 1978 ending Oct. 1981[.]
As a result of his conviction, petitioner was incarcerated at the Ramsey County Workhouse in St. Paul, Minnesota. On the second or third day of his incarceration, he entered a drug rehabilitation program. Less than 90 days later he was released. He has not had a drug problem since. Toward the end of his incarceration, he helped counsel other people with drug problems. In retrospect, he believes it was probably best that he was apprehended and that he had an opportunity to overcome his drug dependency. He has applied for clemency. His only previous arrests were for traffic offenses, and he has not been arrested since. On October 16, 1981, his probation terminated.
In addition to Phoenix Sound and Video, Mr. Shephard has owned part or all of three other retail businesses, and has operated still others. Sherwood Commercial Brokers was his most recent employer. He left off working for them in January of 1982 because he had obtained no real estate salesman's license at that time, and has been unemployed since.
Respondent's proposed findings of fact and conclusions of law have been considered in preparation of the foregoing findings of fact and the proposed findings have been adopted to the extent they were relevant and supported by the evidence.
CONCLUSIONS OF LAW
Section 475.17(1), Florida Statutes (1981), requires that an "applicant for licensure . . . be . . . honest, truthful, trustworthy, and of good character and . . . have a good reputation for fair dealing." In addition, the statute prohibits licensure as a real estate salesman where an applicant "has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license . . . had the applicant then been registered . . . 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." Section 475.17(1), Florida Statutes (1981). One ground for suspending or revoking a real estate license is the licensee's being "found guilty . . of a crime against the laws 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 (1981)
Here, as in Carl Edward Langley v. Florida Board of Real Estate, No. 81-1428 (Fla. DOAH, Sept. 22, 1981), the crime "for which Petitioner was convicted w[as] not related, either directly or indirectly, to a real estate transaction." At p. 4. Unlike Mr. Langley, Mr. Shephard has not yet received the restoration of civil rights for which he has applied, however; and the
definitive Florida case suggests that distribution of a controlled substance for personal gain is a crime involving moral turpitude. Pearl v. Florida Board of Real Estate, 394 So.2d 189, 192 (Fla. 3d DCA 1981).
The passage of four years' time, petitioner's complete rehabilitation, and his extensive experience in business make it very unlikely that licensing petitioner to sell real estate will pose a threat to the interests of the public or investors. Cf. Sheri Kassel v. Department of Professional Regulation, Board of Real Estate, No. 81-1435 (Fla. DOAH, Aug. 11, 1981, at p. 5).
At the final hearing, counsel for respondent made clear that respondent's only concern was petitioner's conviction itself. "There appears to be no evasiveness on Mr. Shephard's part as far as disclosure is concerned," (T. 20), he stated.
