STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS E. ATEEK, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0155

) 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, Veronica E. Donnelly, held a formal hearing on March 22, 1988, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Edward T. Wright, Esquire

260 North Indian Rocks Road Belleair Bluffs, Florida 34640

For Respondent: Manuel E. Oliver, Esquire

Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, Florida 32801

In a letter dated December 22, 1987, the Petitioner, Louis E. Ateek, requested a formal hearing to contest the Respondent's decision to deny his application for licensure as a real estate salesman. The license was denied because of his entry of a nolo contendere plea on a charge of indecent exposure on April 2, 1987. The parties stipulated that the Petitioner met all of the other requirements for licensure.

During the hearing, the Petitioner submitted one exhibit and testified in his own behalf. The Respondent presented evidence through cross examination and submitted one exhibit. No additional evidence was presented by either party. A transcript of the hearing was received by the Hearing Officer on March 30, 1988. Proposed Findings of Fact and Conclusions of Law were timely submitted by both parties. Specific rulings on the Findings of Fact are found in the attached Appendix.

ISSUE

Whether the Petitioner meets the qualifications for licensure pursuant to Chapter 475, Florida Statutes.

FINDINGS OF FACT

1. On April 2, 1987, in Pinellas County, Florida, the Petitioner entered a nolo contendere plea to a charge of exposure of sexual organs, a violation of Section 800.03, Florida Statutes.

   
   

2. On or about August 17, 1987, the Petitioner filed an application for licensure as a real estate salesman. In response to a question involving prior criminal violations, the Petitioner informed the Respondent of the past violation and his nolo contendere plea.

   
   

3. On January 5, 1988, through its legal advisor, the Respondent notified the Petitioner that his application for a real estate license was denied because of the nolo contendere plea to the indecent exposure charge. The Petitioner requested a formal administrative hearing.

   
   

4. During the administrative hearing, the Petitioner testified that on the date of the alleged criminal violation, he stopped on his way to shopping mall to relieve himself in a public restroom located in Freedom Lake Park. While in the restroom, he was approached by a man who strongly implied he wanted to see the Petitioner's sexual organs. At first, the Petitioner did not respond to the request. He then told the man "no" and went to use the urinal. The other man identified himself as a police officer and placed the Petitioner under arrest for exposure of sexual organs.

   
   

5. Once charged with the offense, the Petitioner had to decide whether to contest the charge by requesting a trial or to enter into a plea bargain agreement. The Petitioner was a high school guidance counselor at the time of the arrest. Because of his employment, he was concerned about the notoriety a trial involving sexual misconduct would bring and its damage to his career. He was also concerned about the effects of a trial upon him and his family.

   
   

6. The terms of the plea agreement were that if he were to enter a nolo contendere plea, adjudication of guilt would be withheld by the court. He would be fined $150.00, required to seek counseling, and be placed on six months of supervised probation. Upon advice of counsel, the Petitioner chose to enter the plea, and accept the plea bargain agreement.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The Florida Real Estate Commission may deny an application for licensure if it finds that an applicant has been convicted of a crime which involves moral turpitude. A plea of nolo contendere is considered a conviction for the purposes of this statute. Section 475.25(1)(f), Florida Statutes.

   
   

9. "Moral turpitude" has been defined as "anything done contrary to justice, honesty, principle, or good morals." State ex rel. Tullidge v. Hollingsworth, 146 So. 666 (Fla. 1933). In the case of Pearl v. Florida Board of Real Estate, 394 So.2d 189 (3rd DCA 1981), the appellate court noted that other jurisdictions have held that indecent exposure is a crime involving moral turpitude and cited Brun v. Lazzell, 172 Md 314, 191 A. 240 (1937), with authority.

10. Based upon the foregoing and the Petitioner's admissions in his application, the Respondent exercised its discretion and denied the Petitioner's application for licensure as a real estate salesman.

    
    

11. A formal administrative hearing is a proceeding de novo. The recommended order entered by the Hearing Officer and the final order entered by the Respondent are based upon the record presented during the proceedings. Szkolny v. State Awards Committee, 395 So.2d 1290 (1st DCA 1982).

    
    

12. In the instant case, the evidence presented at hearing is incompatible with a finding that the Petitioner committed the crime of exposure of sexual organs under Section 800.03, Florida Statutes. Before the hearing began, the parties stipulated the statements on the application into evidence. During his testimony, the Petitioner gave a plausible explanation as to why he was in a public restroom and why his sexual organs were exposed. He was urinating. Section 800.03, Florida Statutes, specifically provides for "exposure of such organs in any place provided for that purpose." The use of a urinal in a public restroom appears to be a sanctioned activity.

    
    

13. In a criminal prosecution for a violation of Section 800.03, the State is required to set out the specific unlawful acts or conduct committed by the perpetrator in the criminal information, or charging document. Kittleson v. State, 9 So.2d 807 (Fla. 1942).

    
    

14. The commission is permitted to use certified or authenticated records of the conviction as prima facie evidence of such guilt. Section 475.25(1)(f), Florida Statutes. In this case, the commission did not rely upon authenticated records of the conviction as suggested by Statute. Instead, the commission relied solely upon the Petitioner's admissions in his application for licensure. The Petitioner, by substantial and competent evidence, clarified and explained his prior admissions against interest. He clearly rebutted the attempt by the commission to use the admissions as the basis for a prima facie case against him.

    
    

15. The evidence presented at hearing failed to establish that the Petitioner had committed a crime involving moral turpitude. In order to be able to deny the Petitioner his license under Section 475.25(1)(e), Florida Statutes, the findings must be sufficient to make out a case establishing the crime under Florida law. Reid v. Florida Real Estate Commission, 188 So.2d 846, (Fla. 2d DCA 1966).

Based upon the foregoing, it is RECOMMENDED:

1. That the Petitioner be granted a license to sell real estate pursuant to Chapter 475, Florida Statutes.

DONE AND ENTERED this 18th day of April, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY, 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 18th day of April, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0155

Petitioner's proposed Findings of Fact are addressed as follows:

First Paragraph - Included in H.O.#1, #2, and #3. The fact that the hearing dealt exclusively with the exposure of sexual organs charge has been set forth as a preliminary matter in the Recommended Order.

Second Paragraph - Included in H.O.#4.

Third Paragraph - Included in H.O.#4 and #5. The rest of paragraph three is accepted as Petitioner's testimony but was immaterial in the determination of the outcome of the hearing.

Fourth Paragraph - Included in H.O.#5 and #6.

Fifth Paragraph - The attempt to avoid further publicity is included in H.O.#5. The rest of paragraph is conclusionary and is rejected by the Hearing Officer.

Sixth Paragraph - Rejected as irrelevant and conclusionary. Respondent's proposed Findings of Fact are addressed as follows:

1. Included in H.O.#2 and #3.

2. Included in H.O.#4.

3. Rejected as irrelevant.

4. Included in H.O.5 and #6.

5. Rejected as irrelevant.

6. Set forth as a preliminary matter in the Recommended Order.

COPIES FURNISHED:

Edward T. Wright, Esquire

260 North Indian Rocks Road Belleair Bluffs, Florida 34640

Manuel E. Oliver

Assistant Attorney General Suite 212

400 West Robinson Street Orlando, Florida 32801

Darlene F. Keller Executive Director Division of Real Estate Department of Professional

Regulation

400 West Robinson Street Orlando, Florida 32801

William O'Neil General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0750

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

LOUIS E. ATEEK

Petitioner,

vs. DOAH NO. 88-0155

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on May 18, 1988 to issue a Final Order. Hearing Officer Veronica E. Donnelly of the Division of Administrative Hearings presided over a formal hearing on March 22, 1988. On April 18, 1988, she issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

However, upon a complete review of the record, the Florida Real Estate Commission rejects the Hearing Officer's Conclusions of Law, which for purposes of identification have been numbered consecutively starting with No. 1 being the Conclusion of Law contained in the first paragraph of the Hearing Officer's Conclusions of Law in her Recommended Order, and so forth to Nos. 6, 8 and 9, on the following basis:

1. Conclusion of Law No. 6 is rejected because the Hearing Officer's conclusion that Petitioner's explanation as to his reasons for being in a public restroom when arrested and for why his sexual organs were exposed was plausible is totally incompatible with the evidence in the record. Petitioner's plea of nolo contendere to the charge of indecent exposure shall be considered a conviction for purposes of disciplinary action. See s.475.25(1)(f) and s.475.17(1)(a), Florida Statutes.

   
   

   Furthermore, in reaching such conclusion, the Hearing Officer retried the case which had already been decided and a final disposition rendered by a court of competent jurisdiction in this state.

   
   

2. Conclusion of Law No. 8 is rejected because the Hearing Officer erred in concluding that the Petitioner clearly rebutted the Respondent's attempt to use Petitioner's admissions against him, by reason that Petitioner's plea of

   nolo contendere to the criminal offense was equivalent to a conviction under Chapter 475, Florida Statutes. It was the Petitioner's burden to prove his good character and subsequent good conduct and reputation. The proper forum where the nature of the act was to be determined was timely used, and the matter properly disposed of.

   
   

3. Conclusion of Law No. 9 is rejected by reason that the Hearing Officer erroneously concluded that the Petitioner had not committed a crime involving moral turpitude, although the evidence in the record proves that the Petitioner pleaded nolo contendere to a charge of indecent exposure which, as found in the case cited even by the Hearing Officer, to wit: Brun v. Lazzell, 172 Md. 314,

191 A. 240 (1937), is a crime involving moral turpitude.

Additionally, the Commission rejects the Hearing Officer's statement contained in the last sentence of the first paragraph immediately following the appearance statement in the Recommended Order, as a complete review of the transcript of the formal hearing fails to disclose the stipulation mentioned.

The Commission further rejects the Hearing Officer's Recommendation because the Petitioner failed to prove that he is of good character and that, because of his good conduct and reputation subsequent to the occurrence of the criminal offense, the granting of registration would not endanger the interest of the public.

The Commission adopts the Respondent's Exceptions to the Recommended Order.

A copy of said Exceptions is attached hereto as Exhibit B and made a part hereof.

Therefore, for the reasons cited above, the Commission ORDERS that the Petitioner's application for a real estate license be denied.

This Order shall be effective 30 days after date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s.120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 18th day of May 1988 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Edward T. Wright, Esquire, 260 North Indian Rocks Road, Belleair Bluffs, Florida 34640; to Hearing Officer Veronica E. Donnelly, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32399- 1550; and to Manuel E. Oliver, Assistant Attorney General, Suite 212, 400 West Robinson, Orlando, Florida 32801, this 27th day of May, 1988.

MO:pep Director

Docket for Case No: 88-000155

Orders for Case No: 88-000155