STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2274

)

STACY LEE FLANAGAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this cause on July 22, 1987, in Sarasota, Florida, before Diane A. Grubbs, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation Division of Real Estate

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Stacey Lee Flanagan, pro se

3364 Country Oaks Boulevard Bradenton, Florida 34243

ISSUE

Whether Respondent has been convicted of a crime which involves moral turpitude or fraudulent or dishonest dealing in violation of subsection 475.25(1)(f), Florida Statutes.

BACKGROUND

On April 22, 1987, petitioner filed an Administrative Complaint against the respondent which alleged that on or about September 10, 1986, upon a plea of nolo contendere, respondent was found guilty of the felony offense of conspiracy to violate the Racketeer Influence and Corrupt Organization Act (R.I.C.O. Act); that by letter dated March 20, 1986, respondent informed the Commission of having been arrested on felony charges; and that by letter dated October 8, 1986, respondent informed the Commission of having plead guilty to and having been convicted of a felony. Based on the foregoing, respondent was charged with having been found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealing in violation of subsection 475.25(1)(f), Florida Statutes.

On May 18, 1987, respondent disputed the factual allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On May 26, 1987, the matter was referred to the Division of Administrative Hearings for further proceedings.

At the hearing, petitioner introduced into evidence Exhibits 1 - 6. The petitioner presented no witnesses. Respondent presented the testimony of John Flanagan and testified in her own behalf. Respondent's Exhibits 1 and 2 were admitted into evidence; Petitioner's Exhibit 3 was rejected.

The parties filed proposed Findings of Fact and Conclusions of Law. A ruling on each of the proposed findings of fact has been made in the Appendix to this Order. No transcript of the hearing was filed.

FINDINGS OF FACT

1. Respondent is now and was at all times material to this cause a licensed real estate salesman in the State of Florida having been issued License No. 10931734 in accordance with Chapter 475, Florida Statutes.

   
   

2. On August 29, 1986, a two-count information was filed in the Circuit Court in and for Sarasota County, Florida, against respondent and four other individuals. Count I of the information charged a violation of the Racketeer Influenced and Corrupt Organization (RICO) Act. Count II of the information charged conspiracy to violate the RICO Act. Specifically, Count II of the information alleged that respondent, and five other individuals, on a continuing basis from November 14, 1985, through December 21, 1985,

   
   

   "did knowingly, willfully and unlawfully, conspire, combine, confederate or agree together with each other and with other persons . . . to violate the laws of the State of Florida, to wit: The laws prohibiting any person employed by or associated with any enterprise from conducting or participating either directly or indirectly, in the affairs of

   said enterprise through a pattern or [sic] racketeering activity as prohibited in Florida Statute 895.03(3),

   in violation of Florida Statute 895.03(4), and it was a part of said conspiracy that the above-

   named defendants were associated with an enterprise to wit: a group of individuals associated in fact, although not a legal entity, for the purpose of engaging in various criminal activities in violation of Chapter 849 of the Florida Statutes relating

   to gambling, including but not limited to:

   1. bookmaking, (2) unlawful betting, and

      (3) criminal conspiracy in violation of Florida Statute 895.03(4), to the evil example of all persons in like cases offending and contrary to the statute in such case made and provided against the peace of dignity of the State of Florida."

      
      

3. By letter dated March 20, 1986, the respondent advised the Department of Professional Regulation, Division of Real Estate, that she had been arrested on felony charges.

4. On September 10, 1986, respondent entered a plea of nolo contendere to the offense of conspiracy to violate Racketeer Influenced and Corrupt Organization Act, as charged in Count II of the information. Adjudication was withheld, and respondent was placed on probation for two years with a special condition that she cooperate fully with law enforcement.

   
   

5. On October 8, 1986, respondent sent a letter to the petitioner stating that she had entered a plea of nolo contendere, "to the charge of `conspiracy to violate RICO' for bookmaking." Respondent stated in the letter, "In short, I was betting on football and basketball games and placing bets with a bookie in Ft. Myers."

   
   

6. Respondent's husband, John Flanagan, was named as a co-defendant and co-conspirator in the information. At the hearing, respondent testified that her only role in the betting activity was to take telephone messages for her

   husband. She explained that when her husband was not home, she would answer the phone and take messages for him from friends wishing to place bets on football games. She would write down the message, i.e., what the bet was and the amount of the bet, and leave the message for her husband. However, this testimony is not entirely consistent with her statement in the letter of October 8, 1986, where she stated that she was betting on football and basketball games and placing bets with a bookie in Ft. Myers. Thus, from respondent's admissions it appears that she was involved with gambling activity by taking bets over the phone, which bets were passed on to her husband, by betting on football and basketball games herself, and by placing bets with a bookie in Ft. Myers.

   Further, respondent admitted that she pleaded nolo contendere to the charge of conspiracy to violate the RICO act "for bookmaking."

   
   

7. Respondent determined to plead nolo contendere to the conspiracy charge, a first degree felony, to protect her family and because she knew adjudication of guilt would be withheld and she would be placed on probation. Respondent also contends that she pleaded nolo contendere to the first degree felony of conspiracy to violate the RICO Act, rather than the underlying third degree felony of bookmaking, because adjudication of guilt could not be withheld under the bookmaking statute.

   
   

8. Respondent's husband, John Flanagan, who also pleaded nolo contendere to Count II of the information, is a certified public accountant. When his case was presented to the probable cause panel of the State of Florida Board of Accountancy, the panel decided that there was no moral turpitude or fraud involved in the crime and decided to issue a letter of guidance under a different disciplinary provision.

   
   

9. Respondent's arrest and subsequent disposition of the felony charges have not had an adverse-effect on respondent's real estate business. Respondent's friends and associates find her to be honest and of the highest moral integrity.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 475.25(1), Florida Statutes (1985), provides in pertinent part as follows:

    1. The [Florida Real Estate Commission] . . . may suspend a license or permit for a period not exceeding ten years; may revoke a license or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense, and may issue a reprimand, or any or all of the

       following, if it finds that the licensee, permittee or applicant: . . .

       
       

       (f) Has been convicted or found guilty, regardless

       of adjudication, or a crime in any jurisdiction which directly relates to the activities of a licensed broker salesman or involves moral turpitude or fraudulent

       or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of

       this paragraph. The record of a 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."

       
       

12. In this case, the evidence established that respondent pleaded nolo contendere to the crime of conspiracy to violate the Racketeer Influenced and Corrupt Organization Act (RICO Act), a first degree felony, and thus, under Section 475.25(1)(f), has been "convicted" of conspiracy to violate the RICO Act. The Administrative Complaint does not allege that the crime relates to the activity of a licensed broker or salesman, and petitioner does not argue that the crime involves fraud or dishonest dealing. However, petitioner asserts that the crime of conspiracy to violate the RICO Act involves moral turpitude.

    
    

13. In essence, petitioner argues that conspiracy to commit any offense involves moral turpitude regardless of what the underlying offense may be. Petitioner also argues that, even if one looked to the underlying offense to determine whether conspiracy to commit that offense constituted moral turpitude, bookmaking is a crime of moral turpitude, and thus conspiracy to engage in bookmaking is a crime of moral turpitude.

    
    

14. Respondent contends that since the bookmaking statute, Section 849.25, Florida Statutes, was declared unconstitutional by the Fourth District Court of Appeal in State vs. Cogswell, 504 So.2d 464 (Fla. 4th DCA 1987), because it permits the prosecution as a felony of the same conduct treated as a misdemeanor by Section 849.14, Florida Statutes, her crime should be viewed as merely a series of misdeameanors. Respondent argues that every crime does not involve moral turpitude, citing to Pearl vs. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981), and asserts that she has not been convicted of a crime involving moral turpitude.

    
    

15. The crime to which respondent plead nolo contendere was conspiracy to violate the RICO act, specifically Section 895.03(3), in violation of Section 895.03(4), Florida Statutes. The information alleged that as part of the conspiracy respondent was associated with an enterprise "for the purpose of engaging in various criminal activities in violation of Chapter 849 of the Florida Statutes relating to gambling, including . . . bookmaking."

    
    

16. As respondent correctly asserts, every crime is not a crime involving moral turpitude. However, bookmaking is a crime involving moral turpitude, Carp vs. Florida Real Estate Commission, 211 So.2d 240 (Fla. 3rd DCA 1968), and it

    therefore follows that conspiring with others to engage in bookmaking activities is also a crime involving moral turpitude.

    
    

17. The fact that the Fourth District Court of Appeal, subsequent to respondent's plea, found the bookmaking statute unconstitutional, does not change the character of respondent's conduct. The statute was found unconstitutional because it permitted prosecution as a felony of the same conduct that could be prosecuted as a misdemeanor under Section 849.14. Whether unlawful conduct is labeled a misdemeanor or a felony is not determinative of whether the unlawful conduct involves moral turpitude. Indeed, when the court in Carp determined that bookmaking was a crime involving moral turpitude, the crime of bookmaking under Section 849.25 was a misdemeanor. Therefore, pursuant to Subsection 475.25(1)(f), Florida Statutes, respondent has been convicted of a crime involving moral turpitude and is subject to discipline pursuant to Section 475.25.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order

finding that respondent has been convicted of a crime involving moral turpitude and imposing an administrative fine of $500.00.

DONE and ORDERED this 22nd day of September, 1987, in Tallahassee, Florida.

DIANE A. GRUBBS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

The Oakland Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2274

Petitioner's proposed findings of fact:

1. Accepted in #1.

2-3. Accepted in #4.

1. Accepted in #`s 3 and 5.

2. Accepted in #2.

Respondent's proposed findings of fact:

1-2. Rejected, not a finding of fact.

1. Accepted in part in #2, remainder rejected as not a finding of fact.

2. Accepted in #7, to the degree it is a finding of fact, not a legal conclusion, which might be

   considered in mitigation of penalty.

3. Accepted as stated in #8. 6-7. Accepted as stated in #6.

8. Accepted in that there was no finding that a fine was imposed.

9-10. Rejected as not a finding of fact.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Professional Regulation - Division of Real Estate

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

Stacey Lee Flanagan, pro se 3364 Country Oaks Boulevard Bradenton, Florida 34243

Harold Huff, Executive Director Division of Real Estate

Florida Real Estate Commission

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

Tom Gallagher Secretary

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-002274

Orders for Case No: 87-002274