STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3053

)

GLENN A. SCHOOLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on January 24, 1984, at Palmetto, Florida.

APPEARANCES

For Petitioner: Fred Langford, Esquire

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32802

For Respondent: Richard Lee Buckle, Esquire

BUCKLE & ROBINSON, P.A.

442 Old Main Street Bradenton, Florida 33505

By Administrative Complaint served June 6, 1984, the Department of Professional Regulation, Division of Real Estate, seeks to revoke, suspend, or otherwise discipline the license of Glenn A. Schooley, Respondent, as a real estate broker. As grounds therefor it is alleged Respondent has been found guilty of a crime involving moral turpitude.

At the hearing Petitioner presented certified copies of Respondent's license record and of charges, findings, and sentence of the Circuit Court in and for Manatee County in the case of State of Florida v. Glenn A. Schooley, and rested. Thereafter, Respondent called three witnesses, including Respondent, and Petitioner stipulated to the testimony expected from a fourth witness for Respondent. Several letters attesting to Respondent's good moral character were admitted as Exhibit 3. There is no real dispute regarding the operative facts in this case. The parties were given ten (10) days from the filing of the transcript of this hearing to submit proposed findings, conclusions and recommendations. The transcript was filed February 15, 1985, and to date no proposed Recommended Order has been received.

FINDINGS OF FACT

1. At all times relevant hereto Respondent was licensed by the Florida Real Estate Commission as a real estate broker.

   
   

2. On August 7, 1982, Respondent was arrested on his property in Manatee County at a marijuana patch growing thereon. He was taken into custody, handcuffed, and placed in a Sheriff's Department vehicle for transportation into Bradenton for booking.

   
   

3. Upon arrival at the sally port at the booking office and jail, Respondent was removed from the car. While the sequence of events that occurred was not explicated at the hearing, in Respondent's words "things got out of hand." Respondent testified the Deputy Sheriff tried to "break my arms while removing him from the vehicle, then "overreacted" and drew his pistol. As he emerged from the car, one of Respondent's handcuffs came off, Respondent seized the deputy's gun and ran away. Respondent surrendered himself to authorities the following day and the gun was returned by his attorney a few days later.

   
   

4. Respondent was charged and tried on three counts involving manufacture, use, or intent to use, and possession of marijuana; grand theft of the pistol taken from the Deputy Sheriff; aggravated assault; and escape from confinement. He pleaded nolo contendere to all counts except aggravated assault, to which he pleaded and was found not guilty. Adjudication of guilt was withheld on the three marijuana counts (Counts I, II, and III) and on the grand theft count (Count IV), and Respondent was sentenced to ten days' confinement on work release program on Counts I, II, III, and IV, and was fined $1,000 and placed on probation for three years on Count IV. He was found guilty of escape from confinement and was sentenced to 11-1/2 months in the County Jail work release program and placed on three years probation to run concurrently with the probation in Count IV.

   
   

5. Respondent has lived in Manatee County all his life and his parents are long-time residents. He has been licensed as a real estate broker for seven years and was a salesman before becoming a broker.

   
   

6. The psychotherapist to whom Respondent was referred for counseling after his arrest testified that he met with Respondent for counseling for more than 100 hours and that he administered standards tests to Respondent to determine emotional stability and personality traits. This witness opined that Respondent is of moral standards without psychiatric problems or personality disorders, and that he is a church-going man. This witness did not consider the stealing of the deputy's firearm to be an immoral act, but considered the growing of marijuana to be a moral offense.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 475.25(1)(f), Florida Statutes, provides the Commission may suspend or revoke a license, impose an administrative fine, and/or issue a reprimand if it finds a licensee:

   
   

   Has been convicted or found guilty, regardless of adjudication of a crime in any jurisdiction which directly relates to the activities of a

   licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter. The record or 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.

   
   

9. The sole issue for consideration here is which, if any, of the offenses, to which Respondent pleaded nolo contendere and was sentenced, involve moral turpitude.

   
   

10. The term "moral turpitude" is not a stranger to the law. It has been held to be sufficiently clear in deportation proceedings, Jordan v. DeGeorge,

    341 U.S. 223, 71 S. Ct. 703, 95 L. Ed. 886 (1951); and is the standard for consideration in proceedings involving disbarment of attorneys, Holland v. Flournoy, 195 So. 138 (Fla. 1940); revocation or suspension of professional licenses, State ex rel. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933); and immigration, United States ex rel. Alvarez Y. Flores v. Savorette, 205 Fed. 2d

    544 (5th Circuit 1953).

    
    

11. The case most frequently cited in this jurisdiction for a definition of moral turpitude is perhaps State ex rel. Tullidge v. Hollingsworth, supra. Tullidge was a medical doctor whose certificate to practice had been cancel led by the Board of Medical Examiners at a hearing at which he was not present on a charge that he had falsely answered a question on his application for licensure pertaining to whether he had ever been convicted of a crime involving moral turpitude. The hearing in Tullidge was scheduled and, at the time and place noticed, the Board proceeded, notwithstanding a request for continuance on the part of counsel for the accused, it having been shown that Tullidge was out of the state, his address unknown, and he had never been personally served with the charges preferred against him. On these facts, the court reversed the Board's action and returned the case for a hearing at which Tullidge would have been properly served, allowed to present witnesses and be accorded the other due process niceties required before license revocation can be effected. Tullidge had been convicted by a court-martial in 1917 while an assistant surgeon in the Naval Reserve on a charge of "scandalous conduct tending to the destruction of good morals," and sentenced to five years imprisonment. Without holding the offense for which Tullidge was court-martialed did or did not involve moral turpitude, the Court stated at p. 661:

    
    

    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. Holloway v. Holloway. 126 Ga. 459, 55 S.E. 191, 7 L.R.A. (N.S.) 272, 115 Am.

    St. Rep. 107, 7 Ann. Cases 1164. 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.

    Pullman's Palace Car Co. v. Central Transport Co. (C.C.) 65 F. 158.

12. Cases have uniformly held crimes involving dishonest dealings, perjury, fraud, embezzlement, larceny, robbery, and all common law crimes involve moral turpitude. Accordingly, the crime of grand theft, to which Respondent was found guilty, constitutes an offense involving moral turpitude. Respondent's contention that he took the gun in self-defense and then became confused and ran away is without merit.

    
    

13. A more difficult determination of moral turpitude is involved with the marijuana offenses. Pearl v. Florida Board of Real Estate, 394 So. 2d 198 (Fla. 3d DCA 1981), involved a conviction for possession of marijuana. After citing numerous cases, that court concluded that "mere possession of a controlled substance is not a crime within the contemplation of Section 475.25(1)(e).

    
    

14. One found guilty of 26 violations of the Harrison Act had thereby shown such a contempt of the respectable members of the community and such an indifference to the obligations which rest upon him in performing the duties of his calling as to dishonor himself, degrade his profession, and be guilty of gross immorality within the terms of the licensing statute. Seitz v. Ohio State Medical Board, 157 N.E. 304 (Ohio 1970).

    
    

15. A misdemeanor conviction of embezzlement was held to involve moral turpitude in Cirnigliaro v. Florida Police Standards Commission, 409 So. 2d 80 (Fla. 1st DCA 1982). Duval v. Board of Medical Examiners, 49 Ariz. 329, 66 P.2d 1026 (1927) involved a license revocation for a crime involving moral turpitude. The Court held any physician convicted of wrongfully selling morphine to an addict has committed an act involving moral turpitude.

    
    

16. A registered real estate broker who was convicted of bookmaking was found to be guilty of a crime involving moral turpitude and subject to forfeiture of his license in Carp v. FREC, 211 So. 2d 240 (Fla. 3d DCA 1968).

    
    

17. In Kiner v. State Board of Education, 344 So. 2d 656 (Fla. 1st DCA 1977), the Court held a plea of guilty to manslaughter was prima facie evidence of guilt of an act involving moral turpitude.

    
    

18. On the other hand, in The Florida Bar v. Davis, 361 So. 2d (Fla. 1978), the Court held that issuance of four worthless checks by an attorney with knowledge there were insufficient funds on deposit to pay the checks on presentation did not constitute an offense involving moral turpitude. Under the circumstances involved, the Court found no intent to defraud and therefore the act was not so base and vile as to constitute moral turpitude. The Court evidently accepted Davis' explanation of his failure to make deposits to cover the checks and thereby rebut the prima facie evidence of intent to defraud established by Section 832.07(1)(a), Florida Statutes (1975). The Court stated at p. 162:

    
    

    We now hold that the issuance of a worthless check by an attorney constitutes unethical conduct and subjects the attorney to professional discipline by The Florida Bar. Whether such conduct also involves moral turpitude depends upon the circumstances surrounding the case.

19. Here, Respondent pleaded nolo contendere to charges involving much more than mere possession of marijuana. This plea also covered charges of unlawfully manufacturing marijuana, possessing marijuana, and use of drug paraphernalia to plant, cultivate, propagate, and grow marijuana. Accordingly, I find these acts involve moral turpitude.

    
    

20. Respondent is also found guilty of escape from custody in violation of Section 944.40, Florida Statutes. This offense constitutes a felony of the second degree punishable by imprisonment for a term not exceeding 15 years. The punishment for escape is not incidental to the punishment for the offense for which the prisoner was confined at the time of his escape and this provision is mandatory. Rowe v. State, 299 So. 2d 621 (Fla. 2d DCA 1974). Accordingly, even though the indictment under which he was confined at the time of his escape is subsequently dismissed, or the conviction under which he was confined at the time of his escape is subsequently reversed or set aside on appeal, the prisoner must nevertheless bear the penalty for the separate and distinct offense of escape. State ex rel. Wilson v. Culver, 110 So. 2d 674 (Fla. 1979); Re. Allen, 140 So. 2d 640 (Fla. 1st DCA 1962).

    
    

21. Applying the second definition of moral turpitude from Tullidge, supra, as "anything done contrary to justice, honesty, principle or good morals" with the requisite intent, the offense of escape involves moral turpitude. The acts of Respondent in escaping from the Deputy Sheriff, while not planned in advance, were nevertheless deliberate acts of Respondent to remove himself from lawful apprehension. In Florida Jurisprudence escape is discussed under Criminal Law as a crime against the administration of justice (16 Fla. Jur. Crim. Law, Sections 1442-1445).

    
    

22. While the crime of escape may not properly be categorized as base or depraved, many would likewise find it difficult to associate the crime of manslaughter while driving under the influence, or the possession of hard drugs as evidence of baseness or depravity. The latter offenses have been held to involve moral turpitude by a large majority of the courts. While some people may have difficulty associating escape with other offenses involving moral turpitude, they would have less difficulty finding one who aided and abetted a prisoner to escape had committed an offense involving moral turpitude. Yet, how can one find an accessory to a crime more guilty than the principal? One who provides a prisoner in lawful custody with a gun to assist him in escaping has certainly committed an offense involving moral turpitude. A priori, one who acquires a gun on his own, so to speak, and uses this gun to effectuate his escape, commits an offense involving moral turpitude. Under the circumstances here involved, Respondent's escape was a crime involving moral turpitude.

From the foregoing it is concluded that Respondent has been found guilty of a crime involving moral turpitude in the courts of this state in violation of Section 475.25(1)(e), Florida Statutes, as alleged. It is

RECOMMENDED that the license of Glenn A. Schooley as a real estate broker be suspended for a period of two (2) years.

ENTERED this 14th day of March, 1985, at Tallahassee, Florida.

K. N. AYERS 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 14th day of March, 1985.

COPIES FURNISHED:

Fred Langford, Esquire Department of professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Richard Lee Buckle, Esquire BUCKLE & ROBINSON, P.A.

442 Old Main Street Bradenton, Florida 33505

Harold Huff, Executive Director Division of Real Estate Department of professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-003053

Orders for Case No: 84-003053