STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRADY W. APLIN, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 90-1844

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

The hearing was held pursuant to notice on August 16, 1990, in Gainesville, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the denial of the Petitioner's application for licensure as a real estate salesman.

APPEARANCES

For Petitioner: Grady William Aplin, Jr. pro se

905 South Kings Avenue Brandon, FL 33511

For Respondent: Joselyn M. Price, Esq.

Assistant Attorney General Department of Legal Affairs

400 West Robinson Street Suite 212

Orlando, FL 32801 PRELIMINARY STATEMENT

The Respondent filed proposed findings which were read and considered. The Appendix attached hereto and by reference incorporated herein lists those findings which were adopted and those which were not adopted and why.

ISSUE

Is the Petitioner qualified for licensure?

FINDINGS OF FACT

1. On October 4, 1989, Petitioner filed his application for licensure as a real estate salesman.

   
   

2. Question #7 of the application asked whether the applicant (Petitioner) had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere even if adjudication was withheld (Respondent's Composite Exhibit No. 1).

3. The Petitioner admitted to having been arrested on July 3, 1984 and to pleading nolo contendere on October 17, 1985 to committing a sex offense against a child and the commission of lewd and lascivious acts.

   
   

4. The Petitioner was placed on probation for ten (10) years for the first offense and was sentenced to three years imprisonment for the second offense with thirty-five (35) days credited for time served. A condition of his probation is that he cannot reside or stay overnight with a child under the age of 18.

   
   

5. At the formal hearing in this case, Petitioner testified on his own behalf and admitted that he had molested his oldest daughter, age 11, and pleaded nolo contendere to said offense in 1984 and three (3) months later molested both his oldest daughter, then age 12, and his youngest daughter, then age 9, and pleaded guilty to said offenses.

   
   

6. Petitioner further testified that the initial offense had been committed over a period of approximately two weeks and that the second offense had been committed over a period of approximately two months.

   
   

7. The offenses occurred while he was undergoing rehabilitation therapy for the traumatic amputation of his leg.

   
   

8. Since his release from jail, Petitioner has received treatment for his behavior at the Florida Mental Health Institute, North Florida Evaluation and Treatment Center and Community Behavioral Services.

   
   

9. Petitioner's brother testified concerning his brother's life. The Petitioner had been an Eagle Scout; had been a scoutmaster; had been a member of the Navy Reserve and had had no problems prior to loosing his leg in an accident. Since his release from jail, the Petitioner has provided child support to his ex-wife and daughters. Petitioner had resided with and been employed by his brother until his brother adopted a child. The condition of the Petitioner's probation that the Petitioner can not reside with a child under the age of 18 required the Petitioner to change his residence and employment with his brother.

   
   

10. He was employed by Kelly Temporary Services at the time of hearing and was working in a bank in customer service.

    
    

11. The Petitioner has remained in therapy as required by his probation. The Petitioner has been in the presence of children when other adults were present since his release from jail and the Petitioner's behavior was exemplary.

    
    

12. The Petitioner's brother opined that the Petitioner had "rehabilitated himself," and pointed out that very severe consequences would result to Petitioner for a third offense.

    
    

13. The Petitioner admitted that the offenses had occurred in isolated settings when no other adults were present.

    CONCLUSIONS OF LAW

    
    

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

    
    

15. An applicant for professional license has a burden of establishing that he/she meets all the requirements for such licensure.

    
    

16. Subsection 475.17, Florida Statutes, provides inter alia that:

    
    

    An applicant for licensure who is a natural person must be . . . honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing . . . and must be competent and qualified to make real estate transactions and conduct negotiations

    there for with safety to investors and to those with whom he may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license . . . or his registration or license to practice or conduct a regulated profession, business or vocation has been revoked or suspended by this or any other state . . . because of any conduct or practices which would have warranted a

    like result under this chapter, or if the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license under this chapter had the applicant then been registered, the applicant shall be deemed not qualified 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 .

    [Emphasis supplied.]

    
    

17. Subsection 475.25, Florida Statutes, provides inter alia that:

    
    

    1. The commission may deny an application for licensure . . . if it finds that the . . . applicant:

       * * *

       (f) has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction, which crime directly relates to the activities of a licensed broker or sales or involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for

       purposes of this paragraph. 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.

       [Emphasis supplied.]

       
       

18. According to Black's Law Dictionary 1160 (Rev. 4th Ed. 1968), "moral turpitude" is:

    
    

    An act-of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.

    
    

19. Based on the aforesaid definition and the judicial decision in Perry

    v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981), wherein the court found that moral turpitude also applies to acts "contrary to justice, honesty, principle, or good morals," the commission of lewd and lascivious sexual offenses against children clearly and unequivocally involves moral turpitude. A real estate salesman will be involved with members of the general public who will be sellers or purchasers of real property. The licensee will have easy access to homes and be in the company of families searching for homes. It is not unrealistic to expect that the Petitioner will find himself in the unsupervised company of children under the age of 18.

    
    

20. The period of probation established by the court has just reached its mid point; and although the Petitioner remains in therapy, insufficient time has passed for the Petitioner to rehabilitate his good name and reputation. As the statute states, "the lapse of time and subsequent good conduct and reputation" may create a basis for the Commission to balance the public's safety against Petitioner's privilege to be licensed. It is too soon to tell at this time.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Petitioner's application to take the state examination for licensure as a real estate salesman be denied.

DONE AND ENTERED this 2nd day of October, 1990, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1844

The Petitioner wrote a letter to the Hearing Officer, which was read and considered.

Respondent's Proposed Findings of Fact 1-6. Adopted.

7. Rejected, as irrelevant.

COPIES FURNISHED:

Joselyn M. Price, Esquire Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, FL 32801

Grady William Aplin, Jr. 905 South Kings Avenue Brandon, FL 33511

Darlene F. Keller, 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

Docket for Case No: 90-001844

Orders for Case No: 90-001844