STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT A. GAIK, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3009

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on July, 25, 1988 in West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert A. Gaik, pro se

4839 Sea Oats Circle, Apartment 106 West Palm Beach, Florida 33417

For Respondent: Lawrence Gendzier, Esquire

400 West Robinson Street, Room 212 Orlando, Florida 32801

BACKGROUND

This matter began when Petitioner applied for licensure as a real estate salesman. Respondent denied the application and a formal administrative proceeding was requested by Petitioner. This hearing followed. Respondent presented three evidentiary exhibits at hearing. Petitioner presented the testimony of one witness, himself. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner submitted an application to Respondent for licensure as a real estate salesman on or about March 3, 1988.

   
   

2. By letter dated May 27, 1988, Petitioner was notified by counsel for Respondent that Petitioner's application for licensure was denied. The basis for denial, according to the letter, was Petitioner's criminal record as set forth in the application. Petitioner's criminal record, the letter continued,

   constituted a basis for denial in accordance with section 475.17(1), Florida Statutes, requiring that an applicant possess good character; and section 475.25, Florida Statutes, authorizing licensure denial to an applicant found guilty of an offense involving moral turpitude.

   
   

3. By letter dated June 14, 1988, Respondent's counsel detailed specific offenses that were committed by Petitioner as the basis for application denial. Those offenses were:

   
   

   1. Conviction of the offense of indecent exposure in Orange County, Florida in 1976. Petitioner was placed on probation for one year and fined $150 for this offense.

   2. Commission of the offense of an unlawful blood alcohol level while operating a motor vehicle in 1978. Petitioner paid a fine of $500.

   3. Conviction of distribution of obscene works to a minor in Baldwin County, Alabama in 1986. Petitioner was sentenced to a two year term of probation and assessed a fine of $500.

      
      

4. Petitioner confirmed his conviction for indecent exposure in October, 1976. He related he urinated between two gasoline pumps at a service station around 2:30 a.m. in the morning. He was observed by law enforcement personnel and arrested.

   
   

5. Petitioner's testimony establishes he provided various magazines published in three states to the 16 year old son of a church minister. Upon discovering the magazines, the minister successfully sought the prosecution of Petitioner. According to Petitioner, the magazines he provided the youth are deemed obscene in the state of Alabama. Distribution of such publications to minors is illegal in that state. Further, the magazines were obtained by Petitioner through the U.S. Mail and not through retail outlets.

   
   

6. At hearing, Petitioner also acknowledged his conviction of the offense of driving with an unlawful blood alcohol level in 1978.

   
   

7. Petitioner testified he requested a formal hearing because he knew his employment record of short term employment in various states over the past few years coupled with his criminal record made him look like a "flake" and he desired to dispel such an impression.

   
   

8. Beyond his own testimony acknowledging and explaining his criminal record, Petitioner presented no testimony regarding his character or rehabilitative efforts undertaken by him.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The Florida Real Estate Commission may deny an application for licensure if the applicant has been convicted or found guilty of a crime involving moral turpitude. Moral turpitude has been defined as anything done contrary to justice, honesty, principle or good morals. It involves the idea of

    inherent baseness or depravity in the private social relations or duties owned by man to man, or by man to society. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933).

    
    

11. In view of the foregoing definition, distribution of obscene material to a minor is an offense involving moral turpitude.

    
    

12. Petitioner bears the burden of proof with regard to establishment of his rehabilitation and qualifications for licensure. Petitioner has failed to meet that burden.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entering denying Petitioner's application

for licensure.

DONE AND ENTERED this 16th day of August, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 16th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3009

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

PETITIONER'S PROPOSED FINDINGS

Petitioner presented a letter subsequent to hearing which acknowledged his poor judgement and ignorance of the law with regard to the offense of distribution of obscene literature to a minor. In his letter, Petitioner discounted his earlier offenses due to the fact the incidents were over 12 years old. Any findings which could have been based on Petitioner's statements in this letter are rejected as unnecessary to the conclusion reached.

RESPONDENT'S PROPOSED FINDINGS

1. Included in finding 1.

2. Included in finding 2.

3. Included in finding 3.

4. Included in finding 3.

5. Included in finding 4.

6. Included in finding 5.

7. Included in finding 8.

COPIES FURNISHED:

Robert A. Gaik William O'Neil, Esquire

4839 Sea Oats Circle General Counsel

Apartment 106 Department of Professional West Palm Beach, Florida 33417 Regulation

130 North Monroe street Lawrence Gendzier, Esquire Tallahassee, Florida 32399-0750

400 West Robinson Street

Room 212 Darlene F. Keller

Orlando, Florida 32801 Acting Director Division of Real Estate

Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 88-003009

Orders for Case No: 88-003009