STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUDOLPHO A. HERRERA, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0475

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 16, 1989, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Juan DeJesus Gonzalez, Esquire

2153 Coral Way, Suite 601

Miami, Florida 33145

For Respondent: Lawrence Gendzrier, Esquire

Assistant Attorney General

400 West Robinson, Suite 212 Orlando, Florida 22801

INTRODUCTION

On August 8, 1988, Rudolpho A. Herrera submitted an application for licensure as a real estate salesman. On his application, which was completed on May 12, 1989, Herrera indicated that he had a criminal record. Herrera was subsequently informed that, because of his criminal record, the Florida Real Estate Commission intended to deny his application. Herrera thereafter requested a formal hearing on the issue of whether he meets the qualifications for licensure. On January 27, 1989, the matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct such a hearing.

Herrera was the only witness to testify at hearing. Petitioner offered four exhibits into evidence. Respondent proffered two exhibits. All six exhibits were received into evidence. On March 27, 1989, Respondent filed a Proposed Recommended Order which includes proposed findings of fact and conclusions of law. All of Respondent's proposed findings of fact have been accepted and incorporated in this Recommended Order, except for its proposed finding of fact 6, which has been rejected because it is not supported by the preponderance of the evidence. Petitioner filed a Written Argument on March 29, 1989. As its title suggests, this document simply contains legal argument and does not propose any factual findings.

FINDINGS OF FACT

Based on the evidence presented at hearing, the Hearing Officer makes the following findings of fact:

1. Approximately three years ago, when he was 21 years of age, Rudolpho A. Herrera ran afoul of the law. He made arrangements to have a friend obtain from another acquaintance of Herrera's between four to seven grams of cocaine. Herrera's friend received the cocaine and transported it across state lines to North Carolina where his scheme was uncovered and he was arrested. When questioned by the authorities, the friend revealed Herrera's involvement in the matter.

   
   

2. Herrera was subsequently extradited to North Carolina and charged with conspiracy to distribute cocaine in violation of 21 U.S.C. Section 846. He pled guilty to the charge and, on September 2, 1986, was convicted in federal district court of the offense. Never before had he, nor has he since, been convicted of any crime.

   
   

3. Because of his cooperation following his apprehension, Herrera was treated leniently by the court. He was sentenced to three years imprisonment, the first six months of which he was to spend in a community treatment center. The remainder of his three-year sentence of imprisonment was to be suspended and he was to be placed on five years probation after his release from the community treatment center.

   
   

4. While confined to the community treatment center, Herrera was a model inmate. As a result of his exemplary behavior, he was released from the center and placed on probation two months early.

   
   

5. During the time that Herrera has been on probation he has been a law abiding citizen. Moreover, he has complied with all of the terms and conditions of his probation.

   
   

6. Herrera is now, and has been since the period of his confinement at the community treatment center, gainfully employed. For the past year and a half he has been employed by Five Stars Furniture Corporation as a manager of a furniture store. He is a trusted employee who has been given the keys to the store and the code to its alarm system. Herrera has been fair and honest in his dealings with his employer, his subordinates and his customers.

   
   

7. Although his current employment situation is a positive one, Herrera wants to enter the real estate field to better himself. Charles W. Cadman, the Vice-President of Coconut Grove Realty Corporation, has expressed a willingness to assist Herrera in obtaining his real estate salesman license and to employ Herrera once he obtains his license.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Florida Real Estate Commission is responsible for certifying qualified applicants for licensure in the State of Florida. Section 475.181, Fla. Stat.

   
   

9. An applicant is not qualified for such licensure if he "has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license under [Chapter 475, Florida Statutes had the applicant then been registered ... unless, because of lapse of time and

   subsequent conduct and reputation, or other reason deemed sufficient, it appears likely that the interest of the public and investors will not likely be endangered by the granting of the registration." Section 475.17(1)(a), Fla.

   Stat.

   
   

10. Among the things for which a real estate salesman's license may be revoked or suspended under Chapter 475, Florida Statutes, is the licensee's conviction of a crime which "involves moral turpitude." Section 475.25(1)(f), Fla. Stat.

    
    

11. "Moral turpitude," as used in Chapter 475, Florida Statutes, has been defined as involving "duties owed by man to society, as well as acts `contrary to justice, honesty, principle or good morals.'" Pearl v. Florida Real Estate Commission, 394 So.2d 189, 191 (Fla. 3d DCA 1981). While the mere possession of a controlled substance is not a crime involving "moral turpitude," the more serious drug-related offense of which Herrera was convicted on September 2,

    1986--conspiracy to distribute cocaine--may be so characterized. See Pearl v. Florida Real Estate Commission, 394 So.2d at 191-92. His conviction of this crime therefore would have constituted cause to suspend or revoke his real estate salesman license had he then held one. Accordingly, Herrera bears the burden of establishing that he has been sufficiently rehabilitated to entitle him to licensure. See Antel v. Florida Real Estate Commission, 522 So.2d 1056, 1058 (Fla. 5th DCA 1988).

    
    

12. Herrera has failed to meet this burden. Although his post-conviction conduct has been exemplary, only two and a half years have passed since he was convicted. Given the serious nature of the crime he committed, this has been an inadequate amount of time for Herrera to fully regain the trust he lost and to establish that he is deserving of licensure, particularly inasmuch as the time following his conviction has been spent in the structured environment of a community treatment center and then under the watchful eye of a probation officer. By all appearances, Herrera is well on the road to repairing the damage to his reputation and standing in the community caused by his conviction. He simply needs more time to complete this difficult journey.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's

application for licensure as a real estate salesman, without prejudice to Petitioner filing a subsequent application when he is able to show that his rehabilitation is sufficiently complete to entitle him to such licensure. See Karl v. Florida Real Estate Commission, 229 So.2d 610, 611 (Fla. 3d DCA 1969)(Commission may not preclude an applicant whose application has been denied because of a prior felony conviction from reapplying for licensure and showing subsequent rehabilitation.

DONE and ENTERED this 10th day of April 1989, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1989.

COPIES FURNISHED:

Juan DeJesus Gonzalez, Esquire 2153 Coral Way, Suite 601

Miami, Florida 33145

Lawrence Gendzrier, Esquire Assistant Attorney General

400 West Robinson Street Suite 212

Orlando, Florida 32801

Darlene F. Keller

Director, Division of Real Estate Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 89-000475

Orders for Case No: 89-000475