STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM F. DEMLER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2543

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 23, 1987 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: William F. Demler, pro se

11532 Terra Bella Boulevard Plantation, Florida 33325

For Respondent: Manuel E. Oliver, Esquire

Assistant Attorney General Real Estate Bureau

400 West Robinson Street, Suite 212, Orlando, Florida 32801

ISSUE PRESENTED

The issue presented for decision herein is whether or not Petitioner's application for licensure as a Real Estate Salesman should be approved.

BACKGROUND

By letter dated June 5, 1987, Petitioner was advised that Respondent, Florida Real Estate Commission, denied his application for licensure and was not qualified for registration for a Real Estate Salesman based on a 1985 arrest and conviction for sexual battery.

Petitioner timely requested a hearing pursuant to section 120.57(1), Florida Statutes and the hearing was held as noticed on September 23, 1987.

FINDINGS OF FACT

Based on my observation of the Petitioner and his demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings.

1. On approximately February 12, 1987, Petitioner filed an application to take the Florida real estate salesman's examination. In answering Question #6 of the application, regarding applicant's criminal record, Petitioner answered in the affirmative. Petitioner set forth the details, stating:

   
   

   "On May 14, 1985, plead (sic) nolo contendere to the offense of sexual battery. Through plea bargaining was sentenced to 10 years probation, which I am currently in good standing. Case was instituted by my sons (sic) girlfriend, who was living in my home. I had no witnesses in my behalf, made plea through the Public defenders (sic) office (I was not guilty)."

   
   

   (Respondent's Composite Exhibit 1)

   
   

2. During the hearing, Petitioner admitted that he affirmatively responded to Question #6 on the license application and, in explanation, states that he was unable to retain an attorney when charged and he, upon advice of a public defender, entered the nolo contendere plea as a "plea of convenience".

   
   

3. Petitioner did not present any witnesses at the hearing other than his testimony on his behalf.

   
   

4. Petitioner denied that he was guilty of the crime that he was charged and related that his son and his girlfriend lived with him from approximately 1969 through 1980. Sometime during 1980, the son became a "problem child" and was unmanageable. For that reason, the son was placed in the care and custody of the Department of Health and Rehabilitative Services (HRS). Petitioner again took custody of the son when he reached his seventeenth birthday so that the son and his girlfriend could live with him during commencing September 30, 1983. Approximately one year later, during April, 1984, he was charged with the crime of sexual battery.

   
   

5. In mitigation, Petitioner avers that he is in good standing with his probation officer and that he was formerly a police officer with the Miami Police Department. Petitioner offered no corroborating witnesses or other independent evidence to refute the charges or to otherwise offer testimony as to rehabilitation of his character.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes (Supp. 1986).

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. The authority of the Respondent is derived from Chapter 475, Florida Statutes.

9. Among the qualifications for practice as a Real Estate Salesman is the requirement that a licensee, inter alia, be of good character and have a good reputation for fair dealing. Subsection 475.17(1)(a), Florida Statutes.

   
   

10. The Commission may deny an application for licensure if the applicant has been convicted of, or found guilty, regardless of adjudication, of a crime in any jurisdiction, which crime directly relates to or involves moral turpitude. A plea of nolo contendere is considered a conviction for purposes relevant herein. Section 457.25(1)(f), Florida Statutes. For that reason, Petitioner's entry of a nolo contendere plea to a charge of sexual battery has the same legal effect as a guilty plea. As the crime to which he plead to was sexual battery, it is a crime involving moral turpitude. Moral turpitude has been defined as anything done contrary to principle or good morals. See, State ex rel Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933).

    
    

11. Based on the fact that Petitioner commenced his probation a short period ago (May, 1985) and in the absence of any independent evidence demonstrating that he now possess the requisite qualification for licensure such as good character, good conduct and is reputable in the community, Petitioner has failed to sustain his burden of establishing that he now possess the requisite qualifications to sit for the Florida Real Estate License Examination. I shall therefore recommend that his application for licensure be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

Petitioner's application to take the Real Estate License Examination be DENIED.

RECOMMENDED this 28th day of January, 1988, in Tallahassee, Florida.

JAMES E. BRADWELL

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 28th day of January, 1988.

COPIES FURNISHED:

Manuel E. Oliver, Esquire Department of Professional

Regulation

Assistant Attorney General

Suite 212, 400 West Robinson Street

Orlando, Florida 32801

William F. Demler

11532 Terra Bella Boulevard Plantation, Florida 33325

Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Tom Gallagher, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0760

William ONeil

Department of Professional Regulation General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0860

Docket for Case No: 87-002543

Orders for Case No: 87-002543