STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-468

)

JAMES H. REALE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on September 21, 1982, in Tampa, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: James H. Reale, pro se

135 Steel Dust Lane Lutz, Florida 33549

BACKGROUND

In this proceeding, Petitioner, Department of Professional Regulation, Florida Real Estate Commission, seeks to take disciplinary action against the real estate license of Respondent, James H. Reale, for having violated Subsection 475.25(1)(f), Florida Statutes. In its administrative complaint dated January 29, 1982, Petitioner charges Respondent with entering a plea of guilty to the offense of delivery of cannabis on September 11, 1981, where upon the court withheld adjudication and placed him on probation for five years. The Commission further charged that by virtue of the foregoing Respondent was guilty of a crime against the laws of the State involving moral turpitude, dishonest and fraudulent dealing in violation of Subsection 475.25(1)(f), supra.

Respondent disputed the allegations of fact and requested a formal hearing pursuant to the provisions of Subsection 120.57(1), Florida Statutes. The matter was forwarded to the Division of Administrative Hearings by Petitioner on February 16, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated March 3, 1982, the final hearing was scheduled for April 26, 1982, in Tampa, Florida. At the request of the parties, the hearing was rescheduled to July 21, 1982, at the same location. Respondent did not appear at the scheduled hearing; however, he later filed a request to reschedule the hearing on the ground that he had been unable to attend at the

designated time and place. With the agreement of Petitioner, the final hearing was rescheduled to September 21, 1982 at Tampa, Florida.

At the final hearing Petitioner offered Petitioner's Exhibits 1 - 3; all were received in evidence. Those exhibits are certified copies of Respondent's current real estate licenses with the State, the judgment of conviction for the offense recited in the complaint, and the order of the circuit court withholding adjudication of guilt. Respondent testified on his own behalf and presented the testimony of Patricia Erb.

The transcript of hearing was filed on October 5, 1982. Memoranda of law have been filed by Petitioner and Respondent and considered by the undersigned in the preparation of this order.

The issue herein is whether the crime committed by Respondent involves moral turpitude or dishonest and fraudulent dealing as defined in Subsection 475.25(1)(f) Florida Statutes, thereby warranting disciplinary action against his real estate broker's license.

Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

1. At all times relevant thereto, Respondent, James H. Reale, held real estate broker's license 0162753 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. His current address is 135 Steel Dust Lane, Lutz, Florida where he operates James Reale Realty.

   
   

2. On or about September 11, 1981, Respondent entered a plea of guilty to delivery of cannabis in the circuit court of Hillsborough County. A charge of possession of cannabis had been previously dismissed on August 17, 1981. The court adjudged Respondent to be guilty of the offense, but later withheld adjudication and sentenced Respondent to five years probation.

   
   

3. Respondent contended the criminal charges against him were unfounded. However, in order to avoid newspaper publicity which might embarrass his family and result in the possible loss of his real estate license, he negotiated a plea with the State wherein he pled nolo contendere to delivery of cannabis in return for a probationary sentence. One of the conditions of his probation is that he "work diligently at a lawful occupation."

   
   

4. Reale has continued to successfully use his real estate license since his arrest, and has produced approximately $14 million in sales since that time. He desires to retain his license and continue to engage in the real estate profession so that he can support his seven children. There was no evidence that Reale has been subject to any prior or subsequent disciplinary action, or that he has failed to comply with his probationary conditions.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

6. Subsection 475.25(1)(f), Florida Statutes, permits disciplinary action against a licensee if the licensee has:

   (f) Been found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this State or any other State 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. (Emphasis added)

   
   

7. Respondent contended by way of oral argument that the Department must prove that he was guilty of delivery of cannabis in order to discipline his license. He also asserted that he intended to plea no contest rather than guilty to the charges, and accordingly the statute in question has no application to the case at bar. 1/

   
   

8. Both arguments are deemed to be unavailing. To begin with, the statute in question requires only that a judgment of conviction be introduced by the Department in order to establish "prima facie evidence of such guilt". Subsection 475.25(1)(f), supra. Having satisfied this requirement, it is not necessary to prove that a delivery of cannabis actually occurred. Next, the statute does not distinguish between pleas of not guilty, nolo contendere or guilty; it also matters not that adjudication of guilt was withheld. Therefore, even if Respondent had pled nolo contendere rather than guilty to the charges, the statute would still come into play.

   
   

9. The only remaining issue is whether the crime of delivery of cannabis

   .... involves moral turpitude or fraudulent or dishonest dealing..." within the meaning of Subsection 475.25(1)(f), supra. Both parties have filed memoranda of law, and reach opposite conclusions on the issue.

   
   

10. The term "moral turpitude" has been defined as follows:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owned by man or by man

    to society. (Citations omitted). 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 v.

    Hollingsworth, 108 Fla. 607, 146 So 660, 661

    (1933)

    
    

    Recently, the Third District Court of Appeal enunciated certain broad principles to be observed in administrative proceedings where a licensee was charged with committing a crime involving moral turpitude. Pearl v. Fla. Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981). There the Court held that the facts and circumstances surrounding the illicit conduct must be taken into account, that not every felony conviction requires a license suspension, and that the primary purpose of Chapter 475 (to protect the public from unscrupulous and dishonest real estate brokers) must be kept in mind.

    
    

11. In Pearl, the Court concluded that mere possession of a controlled substance was not a crime involving moral turpitude. In reaching that conclusion the Court distinguished the crime in Pearl from holdings in other jurisdictions that the sale of drugs was held to establish the same. See, e.g.,

    In re McNeese, 142 S.W.2d 33 (Mo. 1940); Texas v. Speer, 109 S.W.2d 1150 (Tex. Civ. App. 1937); Duvall v. Board of Med. Examiners of Arizona, 66 P. 2d 1026 (Ariz. 1937). See also Fortman v. Aurora Civil Service Commission, 346 Northeast 2d 20 (Ill. App. 1976)(holding that delivery of a controlled substance involved moral turpitude). Respondent contends that his offense did not involve the sale of drugs, and therefore, these decisions have no application to the case at bar. But the Legislature has made no distinction between the delivery and sale of controlled substances, and has prescribed the same penalties for either act. Section 893.13, Florida Statutes. Therefore, it is concluded that delivery and sale are equally reprehensible, and should be considered as the same.

    
    

12. Respondent has cited no case holding his actions to be free from moral turpitude. To the contrary, the illegal delivery of drugs appears to be universally held to involve the same. Accordingly, it is concluded that a felony conviction for delivery of cannabis is a crime involving moral turpitude within the meaning of Subsection 475.25(1)(f), Florida Statutes, and that disciplinary action against the license of Reale should be taken.

    
    

13. In determining an appropriate penalty, it should be noted that the following considerations militate against a severe penalty. First, the offense for which he is charged does not relate to the real estate profession, and there is no evidence that Reale is a threat to the public, or that he may be characterized as being unscrupulous and dishonest. Instead, he has continued to act as a responsible broker and has sold approximately $14 million in real estate since his arrest. Second, he has successfully met all conditions of his probation to date, including one that requires him to "work diligently at a lawful occupation." A revocation or lengthy suspension of his license would hinder his efforts to fulfill that condition. Under the circumstances, a six- month suspension of his broker's license is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Subsection

475.25(1)(f), Florida Statutes, and that Respondent's real estate broker license be suspended for a period of six months.

DONE and ENTERED this 12th day of November, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 12th day of November, 1982.

ENDNOTE

1/ Respondent also argued he was unable to ascertain the name(s) of the individual(s) who advised the Commission he had been convicted of the crime in question thereby precipitating this proceeding. Although this matter is not dispositive of the issues herein, Respondent is entitled to be told the name of his complainant, unless the complaint was made anonymously. See Subsection 455.225(1), Florida Statutes. Counsel for Petitioner has represented that an effort would be made to satisfy Respondent's request.

COPIES FURNISHED:

William M. Furlow, Esquire Department of Professional

Regulation - Legal Section

P.O. Box 1900

Orlando, Florida 32902

James S. Crompton, Esquire 923 Cornelius Avenue

Tampa, Florida 33603

Bruce D. Lamb, Esquire

130 North Monroe Street Tallahassee, Florida 32301

James H. Reale

135 Steel Dust Lane Lutz, Florida 33549

Docket for Case No: 82-000468

Orders for Case No: 82-000468