STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 87-2990

) DPR CASE NO. 0155408

RICHARD R. ROGERS, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

On September 28, 1987, in Gainesville, Florida, a formal Section 120.57(1), Florida Statutes, hearing was held in this case. Following the conduct of the hearing, the parties have submitted recommended orders. The proposed recommended orders include recitation of facts which the parties would wish to have the Hearing Officer find. Those proposals have been considered and to some extent utilized in the recitation of facts set forth in this recommended order. Otherwise, those fact proposals are rejected for reasons as set forth in the appendix to this recommended order.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: C. Gary Moody, Esquire

605 Northeast First Street, Suite E Gainesville, Florida 32601

ISSUES

The issues in this cause are those promoted by the administrative complaint brought by the Petitioner against Respondent alleging a violation of Section 475.25(1)(f), Florida Statutes, through the entry of a plea of nolo contendere to a charge of vehicular homicide, a felony, as described in Section 782.071, Florida Statutes.

FINDINGS OF FACT

1. Petitioner, as a governmental agency in the State of Florida, licenses and regulates those persons who are engaged in real estate sales within Florida. The authority for this regulatory function may be found in Section 20.30, Florida Statutes, and Chapters 120, 455 and 475, Florida Statutes, and associated rules.

2. Respondent has held a real estate salesman's license issued by the Petitioner during all relevant periods. On September 13, 1986, that license held by the Respondent was inactive. On October 13, 1986, Respondent activated his real estate salesman's license and it remained active at the point of final hearing. In October 1986, Respondent placed his real estate sales license with a real estate broker in Gainesville, Florida, Richard Fort Rogers. Richard Fort Rogers is the father of the Respondent. Respondent continues in his affiliation with his father's real estate brokerage operation.

   
   

3. On September 13, 1987, Respondent was involved in an automobile accident in Gainesville, Alachua County, Florida. He was operating the motor vehicle in question and through that operation caused the death of Harold E. Thompson. Out of these circumstances, Respondent entered a plea of nolo contendere to the offense of vehicular homicide. Section 782.071, Florida Statutes. This disposition is set forth in Petitioner's composite exhibit 2 admitted into evidence. The plea was by negotiation in the case The State of Florida vs. Richard Fort Rogers in the Circuit Court, for the 8th Judicial Circuit of Florida, Alachua County, Court, #86-3203-CF-A. The amended information to which the Petitioner pled dates from December 10, 1986. The negotiated plea was entered on February 2, 1987. On that same date the Court entered an order accepting the plea. For this offense, adjudication of guilt was withheld, the Respondent was given three years' probation, required to pay court costs and was screened for alcohol counseling.

   
   

4. Following the disposition of his case, by correspondence of February 13, 1987, as received by the Florida Real Estate Commission on February 17, 1987, Respondent advised the Commission of his plea of nolo contendere to the charge of vehicular homicide.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this action as contemplated by Section 120.57(1), Florida Statutes.

   
   

6. The administrative complaint brought against the Petitioner accuses the Respondent of having violated Section 475.25(1)(f), Florida Statutes, which states:

   
   

   1. The commission may deny an application for licensure, registration, or permit,

      or renewal thereof, may suspend a license or permit for a period not exceeding 10 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 foregoing, if it finds that the licensee, permittee, or applicant:

      * * *

      (f) 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 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.

      
      

7. The specific question raised by this case is whether the Respondent's nolo contendere plea to the offense of vehicular homicide, a third degree felony under Chapter 782.071, Florida Statutes, constitutes conviction of an offense involving moral turpitude within the meaning of the aforementioned administrative disciplinary statute. The facts reveal that the Respondent was indeed the party who had been convicted within the meaning of the administrative disciplinary statute and the proof of conviction offered into evidence created a prima facie indication of guilt, which Respondent did not overcome. There remains the matter of whether the offense for which the Respondent entered a nolo contendere plea constitutes a matter of moral turpitude by its language.

   
   

   Section 782.071, Florida Statutes, states:

   
   

   Vehicular homicide.--`Vehicular homicide' is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

   
   

8. Various definitions have been offered concerning the meaning of the term "moral turpitude." Among them, Blacks' Law Dictionary has described moral turpitude as: "an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man."

   
   

9. In State vs. Hollingsworth, 146 50.660 (Fla. 1933), at page 661, the Florida Supreme Court defined moral turpitude as follows:

   
   

   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 (citations omitted). It also has 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.

   
   

10. Another reference concerning the question of moral turpitude is announced in Pullman Palace Car Co. vs. Central Transp. Co., 65 Federal Reporter 158, (Penn. Circuit Court 1894) at page 161 of that opinion where it says:

    What constitutes `moral turpitude,' or what will be held such, is not entirely clear. A contract to promote crime certainly involves it. A contract to promote public wrong, short of crime, may or may not involve it.

    If parties intend such wrong, as where they conspire against the public interests, by agreeing to violate the law or some rule of public policy, the act doubtless involves moral turpitude. When no wrong is contemplated, but is unintentionally committed, through error of judgment, it is otherwise. Turpitude is defined by Webster to be `inherent baseness or vileness of principle, or acting, shameful wickedness.' No unintentional wrong, or improper act innocent in purpose can involve it.

    
    

11. In deciding the issue of moral turpitude, this decision must be reached based upon an examination of the language set forth in Section 782.071, Florida Statutes, without regard for the facts which underlie and form the basis of the entry of the plea. This conclusion is reached upon the consideration of the rationale expressed in the case of United States vs. Karnuth, 30 F.2d 825 (New York District Court 1929). At page 826 within that opinion, the Court stated: "However, as heretofore pointed out, going beyond the record of conviction to ascertain the facts is not required, since the question of moral turpitude must be determined, as Judge Noyes said, in U.S. etc. vs. Uhl, supra,

    `according to its nature and not according to the facts and particular circumstances accompanying the commission of it.'" Applied to the present circumstances it is not deemed appropriate to look at the evidential facts to decide the issue of whether moral turpitude can be associated with the offense of vehicular homicide described in Section 782.071, Florida Statutes.

    
    

12. Examining the language of the statute alone against the background of pronouncements concerning the definition of what moral turpitude means, the offense of vehicular homicide is not seen to involve moral turpitude. It does not contemplate baseness, vileness or depravity contrary to the accepted and customary rule of right or duties between man and man. While vehicular homicide is a crime, it is not an offense which is contrary to the basic idea of justice, honesty, principle or good morals. Moreover, the offense does not seem to contemplate the idea of any specific intent on the part of the perpetrator. To be reckless in one's manner while operating a motor vehicle, even if it is likely to eventuate in death or great bodily harm, does not carry with it the connotation of baseness, depravity, vileness, etc. In Everett vs. Mann, 113 So.2d 758 (Fla. 2nd DCA 1959), stating the opinion that mere possession of a lottery that did not form the basis for discipline by the Florida Real Estate Commission for reasons of a conviction of a criminal offense of moral turpitude, citing to United States vs. Carrollo, D.C., 30 F.Supp 3, the court observed that for a crime to involve moral turpitude it must grievously offend the moral code of mankind. Respondent's offense against the moral code is significant. It does not rise to the level of a grievous offense-. The key word in the language in Section 782.071, Florida Statutes, is reckless. To be reckless according to Blacks' Law Dictionary is to be "not recking; careless, heedless, inattentive; indifferent to consequences." These are strong words; however, they do not equate to moral turpitude. Therefore, Petitioner has failed to prove any violation by the Respondent concerning Section 475.25(1)(f), Florida Statutes.

13. Respondent, at hearing and in the course of the proposed recommended order, alluded to a handbook issued by the Florida Real Estate Commission to its various licensees. Respondent claims that, notwithstanding the silence within Section 475.25(1)(f), Florida Statutes, on the subject of whether intent needs to be an element of offenses involving moral turpitude, language in the handbook leads the various licensees to believe that moral turpitude has to be coupled with an intent to do the wrongful act to constitute a violation of that provision. It is further argued that examples of those matters of moral turpitude found within the handbook included embezzlement, larceny, rape, kidnapping, obtaining money by false pretense, perjury and blackmail. The nature of the way this argument was presented at hearing and in the course of the proposed recommended order does not allow the Hearing Officer to recognize the reference, if it exists, and to offer comment, given that the presentation of the position was not through a specific request for official recognition.

    
    

14. The effect of the entry of a nolo contendere plea, given the statutory language of Section 475.25(1)(f), Florida Statutes, is no different than the entry of a guilty plea or a finding of guilt. The fact of the entry of a nolo contendere plea does not change legal principles concerning the question of the propriety of entertaining extrinsic evidence as a basis for determining the question of whether the offense of which the Respondent was charged constitutes moral turpitude. Even with the entry of a nolo contendere plea, a neutral plea, consideration of this question in law is limited to an examination of the criminal law statute to see if it is, by its terms, a crime involving moral turpitude. Finally, Respondent's suggestion that a plea of nolo contendere cannot be held against him because of an expressed prohibition set forth in Section 90.410, Florida Statutes, related to the use of that plea of nolo contendere in a civil or criminal proceeding following the entry of the plea is not plausible. This is an administrative proceeding, and Section 475.25(1)(f), Florida Statutes, specifically states that such a plea can constitute a ground for discipline.

    
    

15. The motion to dismiss which the Respondent has advanced throughout these proceedings is warranted and should be granted. Upon consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which dismisses this action against the Respondent.

DONE and ORDERED this 25th day of November, 1987, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 25th day of November, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2990

The following disposition is made of the proposed facts offered by the parties:

Petitioner's Facts

All facts offered by the Petitioner are subordinate to the facts found in the recommended order.

Respondent's Facts

1. Those facts reported at page 3 of the proposed recommended order are irrelevant except to the extent that the offense for which he is accused occurred on September 13, 1987, as set forth in the recommended order.

2. Those facts found on page 5 are irrelevant.

3. The facts found within the concluding phraseology of the paragraph which ends at the beginning of page 5 are irrelevant.

4. The facts found in the first full paragraph of page 5 are irrelevant except as it pertains to the plea of nolo contendere to vehicular homicide.

5. The facts found in the second full paragraph of page 5 are subordinate to facts found in the recommended order.

6. The balance of facts found in page 5 constitute legal argument. Those facts found in the concluding portions of a paragraph ending at the top of page

6 constitute legal argument.

COPIES FURNISHED:

James H. Gillis, Esquire Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

C. Gary Moody, Esquire Suite E

605 Northeast First Street Gainesville, Florida 32601

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Darlene F. Keller, Acting Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 87-002990

Orders for Case No: 87-002990