STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6876

)

STEVEN W. RUBIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on April 17, 1990, in Panama City, Florida.

APPEARANCES

The appearances were as follows:

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Glen L. Hess, Esquire

9108 West Highway 98

Panama City Beach, Florida 32407 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent's real estate licensure should be subjected to discipline for allegedly having plead guilty and been convicted of a felony by a federal court and, specifically, whether the crime involved was directly related to the activities of a licensed salesman or involved moral turpitude, fraudulent or dishonest dealing. If guilt be established, the question of penalty must be addressed.

PRELIMINARY STATEMENT

This cause arose upon the filing of an administrative complaint by the above-named Petitioner charging that the Respondent was guilty of a crime involving moral turpitude, fraudulent or dishonest dealing, or was directly related to the business activities of a real estate salesman. Specifically, the Respondent is charged with having been found guilty of a felony under federal law involving the use of communications facilities (telephones) to cause and

facilitate others in violating federal drug laws concerning the distribution of marijuana. In essence, the Respondent is charged with having arranged for a sale of marijuana between two friends and later following up and attempting, by telephone, to arrange for the payment of the amount due for the sale of the drug.

The cause came on for hearing as noticed. The Petitioner offered six exhibits, which were admitted into evidence. Those exhibits consisted of a certified copy of the Respondent's judgment in the federal criminal case involved; a copy of a letter dated April 24, 1989 from the Respondent to Jim Mitchell, a legal advisor to the Real Estate Commission; a copy of a letter dated July 24, 1989 from the Respondent to Paul Bratten, an Investigator Specialist for the Petitioner; a copy of a letter dated July 25, 1989 from the Respondent to Paul Bratten; and a copy of a letter of July 26, 1989 from the Respondent's probation officer to Paul Bratten, the Division's Investigator Specialist. Additionally, Subsection 20.30 and Chapters 120, 455 and 475, Florida Statutes, were officially recognized, pursuant to Rule 221-6.020, Florida Administrative Code.

The Respondent presented the testimony of three witnesses, including his own testimony. The Respondent offered and had admitted into evidence two exhibits consisting of a copy of the Superseding Indictment in the Federal District Court for the Middle District of Pennsylvania, and a copy of the Respondent's plea agreement with the United States Attorney for the Middle District of Pennsylvania executed December 29, 1988. All exhibits were received into evidence without objection.

Subsequent to the hearing, the parties elected to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The Petitioner filed a Proposed Recommended Order while the Respondent, instead filed a letter with the Hearing Officer in which, in essence, he has agreed that the Petitioner's counsel has suggested a fair resolution of the dispute, but in view of the mitigating circumstances found (hereinbelow), that any reprimand be a private one. The proposed findings of fact submitted are ruled upon in this Recommended Order and in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is charged with enforcing the provisions of Chapter 475, Florida Statutes, and related rules which establish the licensure and practice standards for real estate brokers and salesmen in the State of Florida and provide for a method of enforcing those standards. The Respondent is a licensed real estate salesman, being issued license number 0443228, in accordance with Chapter 475, Florida Statutes. The Respondent's last licensed practice location was as a salesman with John Davidson Realty, Inc., at 949 Jenks Avenue, Panama City, Florida 32401. The Respondent was first licensed in January of 1985.

   
   

2. In November of 1983, the Respondent engaged in a telephone call(s) to introduce or serve as an intermediary between two old friends. The purpose of the calls was to arrange for one of his friends to buy a quantity of marijuana from the other. This arrangement arose out of friendships based upon the Respondent's former residence in Key West, Florida. The Respondent helped his friends arrange a marijuana sale transaction; and a few months later, in approximately June of 1984, he again telephoned one of them to urge him to pay the money he owed the seller of the marijuana. That was the extent of the Respondent's involvement in the illegal drug transaction.

3. On December 29, 1988, the Respondent, was indicted, with other defendants, on a number of related charges concerning the use of the mails and telephones in promoting and facilitating the distribution, and the conspiracy to distribute, marijuana, and the commission of acts which are felonies under federal drug laws. He pled guilty to Count V of that indictment involving the intentional use of the telephone in facilitating another in commission of acts which are felonies under federal drug laws, specifically, the distribution and conspiracy to distribute a quantity of a controlled substance: to wit, marijuana. Thus, the Respondent was ultimately convicted of a violation of Title 21, United States Code, Section 843, after his agreed plea was ultimately entered on April 18, 1989. On that date, the United States District Court for the Northern District of Florida entered a judgment convicting the Respondent of violating that Section of the United States Code, as charged in Count V of the indictment. The court sentenced the Respondent to three years of imprisonment, which was then suspended on the condition that the Respondent be confined in a treatment institution for 90 days. The Respondent carried out that sentence by spending nights in a "halfway house", while working during the day.

   
   

4. The Respondent immediately notified the Petitioner of his conviction on or about April 24, 1989, by letter. The Respondent candidly explained his predicament to the Florida Real Estate Commission without any prompting by the Commission and asked for the Commission's guidance. Ultimately, the Petitioner responded by filing the subject administrative complaint.

   
   

5. The Respondent also fully cooperated with the federal authorities in the prosecution of the various criminal matters relating to the confiscation of property acquired with drug sale proceeds by other individual defendants named in the original indictment. This criminal act was committed by the Respondent prior to his licensure as a real estate salesman in the State of Florida.

   
   

6. Since the original criminal conduct, the Respondent, in early 1984, married and has since had four children. He, through his own testimony and that of his witnesses, established that he is an exemplary family man, husband and father of his children. He has been a good provider for his family and himself since he has been a very successful real estate salesman, with a higher professional certification pending for him in the field of commercial real estate. A number of real estate brokers in the Panama City area with whom the Respondent has worked as a business associate or employee attested to his excellent reputation for honesty and fair dealing in all business and personal transactions and to the purity of his personal character. Since his entry into the real estate sales profession, he has become prominent both in the actual practice of his profession and in related professional organizations and civic activities. He has truly proved himself to be a rather admirable citizen since his unfortunate illegal conduct and resulting conviction. This altercation with the federal criminal justice system was the only one on his record, and he has had no violations in a professional context since he was licensed as a real estate salesman. The Respondent's evidence establishes unequivocally that he has rehabilitated himself from the effects and personal blemish of his past miscreant conduct. No evidence was adduced to refute that showing, because the Petitioner essentially no longer disputes those facts. His rehabilitation is to such an extent that it is obvious that his prior criminal conduct, should it become known to the public, would not likely cause or induce the public to fear that he would act to his clients' detriment in the conduct of their business affairs and the handling of their funds.

7. In summary, the peculiar circumstances of this case, starting with the fact that the Respondent himself was not directly involved in the sale of illegal drugs, but rather was seeking to "help out a friend", albeit wrongfully, through the remaining facts established, which prove his rehabilitation, have shown that his prior criminal conduct does not reflect adversely on his ability to serve as an exemplary licensed real estate professional in the State of Florida.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding, in accordance with Section 120.57(1), Florida Statutes (1989).

   
   

9. The Petitioner has charged that the Respondent has violated Subsection 475.25(1)(f), Florida Statutes (1989). That subsection provides, in pertinent part:

   
   

   1. The commission may. suspend the license

      or permit for a period not exceeding ten years; may revoke a license or permit; may impose an administrative fine not to exceed $1,000.00 for each count or separate offense; and, may issue a reprimand, or any or all of the foregoing, if it finds 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. salesman...or involves moral turpitude or fraudulent or

      dishonest dealing. ... 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.

      
      

10. It has been established by the evidence of record and, indeed, is undisputed, that the Respondent was convicted of a crime involving the knowing and intentional use of a communication facility: to wit, a telephone, in causing and facilitating others in the commission of acts which are felonies under federal drug laws, specifically, the Respondent facilitated others in violating federal laws against the distribution and conspiracy to distribute marijuana, in violation of Title 21, Section 841(a)(1), United States Code, and Title 18, Section 2, United States Code.

    
    

11. Thus, in order for the charges in this administrative complaint to be established, the Petitioner must prove the conviction of the crime and that the crime involved a direct relationship to the activities of a licensed real estate salesman or fraudulent or dishonest dealing or otherwise involved moral turpitude.

    
    

12. The evidence of record in this proceeding does not establish that the Respondent's crime of which he was convicted had any direct relationship to the activities of a licensed real estate salesman. The evidence likewise does not reflect any fraudulent or dishonest dealing with the parties to the transaction in question, which is the general context in which fraudulent and dishonest

    dealing is proscribed by the above-quoted statutory provision. No fraud or deceit was used to the detriment of the buyer or sellers in the transaction in question. The problem with the transaction was that it was illegal as conducted by all three parties, the buyer, the seller and the Respondent. All of the evidence culminating in the above factual findings does not reveal that the crime involved was related to the activities of a licensed real estate salesman or directly involved fraudulent or dishonest dealing with the parties to the transaction in question.

    
    

13. There is no question, however, that the crime involved in the Respondent's activity for which he was convicted did involve moral turpitude. It is true that the Respondent merely acted as an intermediary between his two friends, making a number of telephone calls for purposes of facilitating them arranging the sale of some marijuana, and later for the purposes of inquiring about payment for the marijuana. The Respondent obviously understood exactly what he was engaged in and the illegal nature of it. The Respondent obviously knew that a felonious drug transaction would result from his facilitating the communication of his two friends with regard to the sale and purchase of the marijuana. He knew that they were in the business of dealing in the unlawful sale and purchase of that drug, which is a federally-controlled substance. The engagement in transactions involving such controlled substances, such as marijuana and cocaine, as opposed to their mere possession, are by their very nature determined by the courts to be crimes of moral turpitude. See Pearl v. Florida Real Estate Commission, 394 So.2d 189, (Fla. 3rd DCA 1981).

    
    

14. The Respondent, then, committed a crime of moral turpitude. However, neither before nor since the time in late 1983 and early 1984, when these relevant events occurred, has he been involved in any altercation with the criminal justice system nor any disciplinary actions as a realtor. The Respondent has led a respectable, exemplary personal and professional life since his marriage in early 1984. He and his wife are raising four children, born since that time. He has an honorable profession now and serves it well, as evidenced by the testimony of his co-professionals, who testified in his support and as to his moral rehabilitation. The evidence was unrefuted in establishing that he is an honorable man. He heartily regrets his past miscreant conduct and has conducted his life, both personally and professionally, since that past unfortunate occasion, in such a manner as to reflect honor and respect upon himself, his family and the members of his profession. He evinces a resolute desire to conduct all of the affairs of his life along a high moral path.

    
    

15. In view of the showing that this past aberrant conduct was an isolated circumstance, not reflective of his true character, and in view of the overwhelming evidence which establishes his strenuous efforts to prove his good character and worth as an individual and real estate professional since that time, it is deemed that no significant penalty should be exacted under the circumstances of this case.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that a Final Order be entered by the Petitioner finding the Respondent guilty of a conviction of a crime involving moral turpitude, as prohibited by Subsection 475.25(1)(f), Florida Statutes, and that the penalty of a private, written reprimand be imposed.

DONE AND ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF, 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 6th day of July, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-6876

The following discussion is given concerning the fact proposals of the parties:

Petitioner's Facts 1-9. Accepted.

Respondent' s Facts

The Respondent filed no proposed findings of fact.

COPIES FURNISHED:

Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, FL 32802

Kenneth E. Easley, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

James H. Gillis, Esquire

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, FL 32802

Glen L. Hess, Esquire 9108 West Highway 98

Panama City Beach, FL 32407

Docket for Case No: 89-006876

Orders for Case No: 89-006876