STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRAIG A. SHIVER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0683

)

DEPARTMENT OF BANKING AND ) FINANCE, DIVISION OF FINANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on April 14, 1988, in Clearwater, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The representatives of the parties were as follows: For Petitioner: Alan D. Watson, Esquire

Yeakle and Watson, P.A.

890 Florida Federal Building One Fourth Street North

St. Petersburg, Florida 33701

For Respondent: Stephen M. Christian, Esquire

Assistant General Counsel Office of Comptroller

1313 Tampa Street, Suite 615

Tampa, Florida 33602-3394 BACKGROUND

On December 22, 1987, Respondent informed Petitioner by letter that his application for licensure as a home improvement seller was denied based on his conviction, on October 30, 1981, of a crime involving fraud, dishonest dealings, or any act of moral turpitude.

By an Amended Notion for Hearing filed on February 1, 1988, Petitioner requested a formal hearing.

Petitioner presented four witnesses. Respondent presented no witnesses.

Petitioner offered into evidence one exhibit. Respondent offered into evidence no exhibits. The exhibit was admitted into evidence.

Both parties filed a proposed recommended order. Treatment accorded the proposed findings of fact is detailed in the Appendix.

FINDINGS OF FACT

1. Petitioner was arrested in 1979 and convicted in 1980 of the third- degree felony of attempted trafficking in cannabis. He served 25 months of a five-year sentence.

   
   

2. For about five months during 1978, Petitioner cultivated a marijuana crop consisting of about 120 plants. Although Petitioner's participation did not extend to the sale of the cannabis, he was aware of the commercial purpose for which it was being cultivated. Petitioner earned about $13,000 for his efforts.

   
   

3. Shortly following his release from prison, Petitioner moved to the St. Petersburg area where he began to work in the roofing industry as a roofing laborer and, later, supervisor. He has continuously worked in the St. Petersburg area since, except for a period of about nine months during which he resided out of state.

   
   

4. For the past two years, following an on-the-job injury, Petitioner has worked as a roofing sales representative. For the past nine months, he has worked as a sales representative for Ron Webb Roofing, where he worked as a roofing laborer and supervisor from 1983 through 1985 prior to his injury.

   
   

5. Petitioner has never had a customer complaint while working in the roofing industry. As a sales representative, he is required to handle cash entrusted to him for his employer, and he has never mishandled any of these funds.

   
   

6. Petitioner was married last July to a cardiac care nurse. He has since adopted her 16 year-old son, and the couple is expecting a baby in June.

   
   

7. Petitioner is an active member of the PTA at his son's school. He also attends Northside Methodist Church nearly every week.

   
   

8. Petitioner pursues as a hobby the practice of magic. He is a member of the Society for American Magicians, and this year is the president of the St. Petersburg assembly, which has 196 members and is currently the fifth largest in the United States. Petitioner has freely donated his magician services for the entertainment of the less fortunate. Recently, he performed for free for the Special Olympics in Clearwater, nursing homes, church groups, and birthday parties.

   
   

9. Petitioner has rehabilitated himself and is of good moral character.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Respondent has jurisdiction over the issuance of licenses to home improvement sellers, home improvement finance agencies, and home improvement contractors under The Home Improvement Sales and Finance Act. Section 520.63, Florida Statutes.

    
    

12. Respondent may deny the issuance of a license if the applicant "[has] been convicted or found guilty of a crime involving fraud, dishonest dealing, or any act of moral turpitude." Section 520.66(3)(c), Florida Statutes.

13. The crime of attempted trafficking in cannabis is an act of moral turpitude. In Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981), the court held that mere possession of a controlled substance was not an act of moral turpitude under Section 475.25(1)(e), Florida Statutes (1977). However, the court noted with apparent approval cases in other jurisdictions holding that the sale of various illegal substances constituted moral turpitude.

    
    

14. On its face, Section 520.331(3)(c), Florida Statutes, categorically prohibits the issuance of a license to a person who has been convicted or found guilty of a crime involving any act of moral turpitude. Such a categorical prohibition is not found in all disciplinary statutes. For example, Section 475.17(1)(a), Florida Statutes, expressly prohibits licensure of a real estate broker or salesman for certain acts "unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the commission that the interest of the public and investors will not likely be endangered by the granting of registration."

    
    

15. An often-cited decision in this area, State ex rel. Corbett v. Churchwell, 215 So.2d 302 (Fla. 1968), is inapplicable to the present case. The Court held in this case that a licensing board could not say, as a matter of law, that an applicant lacked "good character" simply because he was convicted five years earlier of a misdemeanor. A "good character" standard obviously invites evidence of rehabilitation.

    
    

16. However, Karl v. Florida Peal Estate Commission, 229 So.2d 610 (Fla. 3d DCA 1969), cert. den. 237 So.2d 538 (Fla. 1970), is applicable to the present case. The Karl court reviewed a statute prohibiting licensure of an applicant who had been confined in a state prison, apparently without exception for rehabilitation. Relying exclusively on Corbett, the Karl court held that the licensing agency had to consider a showing of rehabilitation at a future date.

    
    

17. Petitioner has demonstrated that he has rehabilitated himself. He should be granted the licensure for which he has applied.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that Respondent enter a final order issuing Petitioner a license as a home improvement seller.

DONE and RECOMMENDED this 6th day of May, 1988, in Tallahassee, Florida.

ROBERT E MEALE

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 6th day of May, 1988.

COPIES FURNISHED:

Alan D. Watson, Esquire Yeakle and Watson, P.A.

890 Florida Federal Building One Fourth Street North

St. Petersburg, Florida 33701

Stephen M. Christian, Esquire Assistant General Counsel Office of Comptroller

1313 Tampa Street

Suite 615

Tampa, Florida 33602-3394

Honorable Gerald Lewis Comptroller

State of Florida The Capitol

Tallahassee, Florida 32399-0350

Charles L. Stutts General Counsel Plaza Level

The Capitol

Tallahassee, Florida 32399-0350

Docket for Case No: 88-000683

Orders for Case No: 88-000683