STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD V. THOMPSON, JR., )

)

)

Petitioner, )

)

vs. ) CASE NO. 91-2477

) FLORIDA REAL ESTATE COMMISSION, )

)

)

Respondent. )

)

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on September 10, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Richard Thompson, Jr., pro se

2637 Sugarloaf Lane

Fort Lauderdale, Florida 33312

For Respondent: Manuel E. Oliver, Esquire

Assistant Attorney General Suite S107, 400 West Robinson Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Mr. Thompson should receive a license as a real estate salesman.

PRELIMINARY STATEMENT

The Commission proposed to deny the license because Mr. Thompson had been convicted, under a plea of nolo contendere, to the felony charge of trafficking in cocaine. He was sentenced on August 7, 1987, to serve a term of imprisonment of seven and one half years.

A transcript of the hearing was filed. The Commission submitted a proposed recommended order, and Mr. Thompson submitted a letter arguing his view of the evidence.

FINDINGS OF FACT

1. Mr. Thompson filed his application for licensure as a real estate salesman on January 31, 1991. In that application he disclosed that he had been

   convicted in the Circuit Court for Broward County, Florida, on a charge of trafficking in cocaine. According to the probable cause affidavit which led to his arrest, Mr. Thompson had purchased seven kilos of cocaine from an undercover officer on September 1, 1985. This led to his arrest for trafficking in excess of 400 grams of cocaine under Section 893.135, Florida Statutes (1985). As the result of that conviction, he had been sentenced to seven and a half years in prison, with credit for three days of time served. The charge carries with it a five year mandatory minimum sentence. The circuit judge recommended that Mr.

   Thompson be allowed to surrender to begin the term of imprisonment on August 18, 1987, that he be placed in a minimum security prison and allowed to participate in a work release program.

   
   

2. At the time of his arrest Mr. Thompson had owned and operated a travel agency, Travel With Us. As part of that work he handled airline ticket stock which is very valuable, and also handled large sums of money. He lost the business due to his incarceration, but he dealt honestly with all ticket stock and with the money entrusted to him by his clients in the business.

   
   

3. After he was taken into custody, Mr. Thompson was entrusted with the job of a van driver at the prison. Because of his good behavior, lack of any disciplinary referrals, and the absence of any criminal offenses prior to the cocaine charge, Mr. Thompson became one of very few prisoners assigned to a work release program operated through the Salvation Army where he worked as a parts manager for Renown Aviation at Executive Airport in Fort Lauderdale.

   
   

4. As the result of a highly publicized murder committed in Tallahassee by a prisoner on work release, the entire work release program was reviewed and Mr. Thompson was reclassified. As a result he was no longer able to work at Renown Aviation. He had always conducted himself appropriately, and the reassignment did not reflect adversely in any way upon Mr. Thompson. While then incarcerated in Fort Pierce, Mr. Thompson and a veterinarian, Dr. Bill Bigger, began an organization designed to save manatees, known as "Save the Gentle Giants." Eventually Mr. Thompson was released after serving three years of his sentence.

   
   

5. After his release, Mr. Thompson was hired as the manager of a used car sales business known as Detroit Connection. Later he began sales of personal care products for Nu-Skin International, and began his own pressure cleaning business. There is no evidence of any consumer complaints or dissatisfaction with Mr. Thompson in the work he has done either while on work release, or since he was released from custody.

   
   

6. Mr. Anthony Arcabascio, holds a license as a Florida real estate broker. He has known Mr. Thompson socially for about four years. Mr. Thompson's pressure cleaning business shares office space with Mr. Arcabascio's Pizza business. Mr. Arcabascio operates his real estate business from the pizza establishment. Based on his experience with Mr. Thompson, Mr. Arcabascio is willing to be the broker for whom Mr. Thompson could work, if he obtains a salesman's license. A number of people testified on behalf of Mr. Thompson, attesting to his good moral character, these included his father, Richard V. Thompson, Sr.; his girlfriend, Kimberley Ann Payne; Richard Schott, who supervises Mr. Thompson in his sale of skin care products for Nu-Skin International; Lewis Troiano, who is employed by Mr. Thompson in his pressure cleaning business; and the real estate broker, Anthony Arcabascio.

   
   

7. In its proposed recommended order, the Commission notes, paragraph 12, that during the hearing Mr. Thompson testified that he finished with his sentencing one year ago, but that documents in the record, specifically the

   supervised community release agreement which Mr. Thompson signed with the Department of Corrections, indicates that as late as November 15, 1990, Mr. Thompson was still under the control and supervision of the Department of Corrections. The Department apparently argues from this document that the record contradicts Mr. Thompson's testimony, and that he is therefore not of good moral character. I find that Mr. Thompson's testimony was truthful. Taken in context, he accurately recounted that his incarceration had ended more than one year ago. The document does not contradict Mr. Thompson's testimony.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

9. Mr. Thompson has the burden of proving his entitlement to licensure as a real estate salesman. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Rule 28-6.008(3), Florida Administrative Code. An applicant for a license as a real estate salesman must demonstrate that he is of good moral character, and the Real Estate Commission may deny an application if it finds that the applicant has been convicted or found guilty of a crime, regardless of adjudication, which involves moral turpitude, or fraudulent or dishonest dealing. Section 475.25(1)(f), Florida Statutes (1989).

   
   

10. Moral turpitude has been found to encompass behavior which is "contrary to justice, honesty, principle, or good morals," Pearl v. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 3d DCA 1981). The holding in the Pearl case was that a real estate salesman who was adjudicated guilty of three felony counts of possession of controlled substances could not have his licensure suspended for 60 days by Real Estate Commission based upon the allegation that he was guilty of a crime involving moral turpitude under what was then Section 475.25(1)(e), Florida Statutes (1977). The court found that every felony conviction did not require the suspension of licensure, and found that mere possession of controlled substances did not establish moral turpitude. It reviewed cases from other jurisdictions which had found that the actual sale of narcotics or drugs, rather than mere possession, established an adequate basis for disciplining professionals. 394 So.2d at 192. The facts here would be sufficient, under the court's analysis in Pearl, to discipline Mr. Thompson if he had held a real estate license, because his conviction was for trafficking in cocaine. According to the probable cause affidavit seven kilos of cocaine were involved. His crime was one involving moral turpitude.

    
    

11. Nonetheless, Mr. Thompson is not forever barred from seeking licensure. His conduct in dealing with the ticket stock for his travel agency, his good conduct during his participation in the prison work release program, his operation of his own pressure cleaning business without customer complaints and the confidence expressed in his integrity by another broker who is willing to allow Mr. Thompson to work under him, all indicate that Mr. Thompson may now have that quality of character which would entitle him to licensure. The difficulty here is the brief period of time which has passed since the end of Mr. Thompson's sentence. Although the events at issue occurred in September of 1985, he was only released from prison at about September of 1990. Dealing in large quantities (i.e., seven kilos) of cocaine is very serious misconduct. Apparently the circuit judge who dealt with Mr. Thompson's case had confidence in Mr. Thompson, because the court recommended work release and assignment to a minimum security facility. So far Mr. Thompson's conduct indicates that the confidence was well placed. If Mr. Arcabascio were a full time real estate

    broker who could engage in careful oversight of Mr. Thompson's activities, granting Mr. Thompson a license would be less problematic. Mr. Arcabascio, however, spends most of his time operating a pizza business, is not active in real estate, and does not maintain an escrow account (Tr. 39).

    
    

12. Mr. Thompson presented adequate evidence of current good moral character so that he could be entrusted with the real estate license under the careful supervision of an active real estate broker. Mr. Arcabascio is not an appropriate broker, however, due to the very limited nature of his real estate practice. Mr. Thompson's past requires that his performance be carefully supervised by a full time real estate broker who maintains an active escrow account. This would appropriately balance the risk to the public in dealing with Mr. Thompson due to doubts about his character arising from his conviction with his good record in business dealings both before and after his conviction in dealing with members of the public in his travel agency business and his post-conviction business enterprises. If a full time broker who maintains an active escrow account is not willing to take Mr. Thompson on as a salesman and to closely monitor his activities, licensure should not be granted now.

Although Mr. Thompson has conducted himself well since his release from incarceration, a period of one year is too short to be sufficiently certain that Mr. Thompson will conduct himself appropriately in the absence of active, day- to-day supervision.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a license of real estate salesman be granted to Mr.

Thompson only if an active real estate broker who maintains an escrow account

who is willing to supervise Mr. Thompson can be found. In the absence of such a supervisory arrangement, the application of Mr. Thompson should be denied, but reconsidered after a period of one year of further good conduct.

DONE and ENTERED this 26th day of November, 1991, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 26th day of November, 1991.

APPENDIX TO RECOMMENDED ORDER

Facts proposed by the Real Estate Commission have been accepted with the exception of Finding 12 which is itself discussed in the Findings of Fact.

COPIES FURNISHED:

Manuel E. Oliver, Esquire Assistant Attorney General Suite S107, 400 West Robinson Orlando, Florida 32801

Richard V. Thompson, Jr. 2637 Sugarloaf Lane

Fort Lauderdale, Florida 33312

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

RICHARD V. THOMPSON, JR.

Petitioner

vs. DOAH CASE NO. 91-2477

FLORIDA REAL ESTATE COMMISSION

Respondent

/

FINAL ORDER

On January 22, 1992, the Florida Real Estate Commission heard this case to issue a Final Order.

Hearing Officer William R. Dorsey, Jr. of the Division of Administrative Hearings presided over a formal hearing on September 10, 1992. On November 26, 1991, he issued a Recommended Order. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof. On December 9, 1991, Respondent filed Exceptions to said Recommended Order. A copy of these Exceptions is attached hereto as Exhibit B and made a part hereof. The Petitioner did not file Exceptions.

After a complete review of the record, the Commission finds that the evidence, as described in Paragraph #1 of Respondent's Exceptions, supports said Exception and justifies the rejection of the Hearing Officer's Finding of Fact #7; and the Commission concludes that there is no competent and substantial evidence upon which Finding of Fact #7 may be sustained.

The Commission also finds that the Hearing Officer's Finding of Fact #2 has no corroborative evidence upon which he could have made such Finding.

Furthermore, by qualifying Petitioner's conduct as (honest) while dealing in the travel agency business, the Hearing Officer reached a Conclusion of Law and not a Finding of Fact.

The Commission further finds that Respondent's Exceptions #3 and #4 relating to the Hearing Officer's Conclusions of Law are well taken, as the Hearing Officer should not have reached a conclusion that the present quality of character of the Petitioner could be determined from his past conduct while doing business as a travel agent when said activity occurred prior to Petitioner's commission of the criminal offense.

In addition, the Hearing Officer's Conclusion of Law, as stated in his Recommended Order at Page 7, is also rejected, because he disregarded the two elements necessary to the granting of authorization to an applicant to take the state examination; and the Respondent's Exception in this regard is fully supported by statutory provisions.

Finally, the Hearing Officer's Recommendation is rejected as not being statutorily authorized.

The Florida Real Estate Commission therefore ORDERS the following:

1. That the Respondent's Exceptions to the Recommended Order be accepted and adopted in their entirety.

   
   

2. That the Hearing Officer's Findings of Fact and Conclusions of Law to which the Exceptions were filed be rejected, and those to which no Exceptions were made be accepted and adopted.

   
   

3. That the Hearing Officer's Recommendation be rejected.

   
   

4. That the application of the Petitioner to be allowed to take the state examination for licensure as a real estate sales person be denied.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s.120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable' filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 22nd day of January 1992 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Richard V. Thompson Jr., 2637 Sugarloaf Lane, Fort Lauderdale, FL 33312; to Hearing Officer William R. Dorsey Jr., Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and to Manuel E. Oliver, Assistant Attorney General, Suite 107 South, 400 West Robinson Street, Orlando, FL 32801, this 4 day of February 1992.

Director

Exhibit B STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

RICHARD V. THOMPSON, JR.

Petitioner

vs. DOAH CASE NO. 91-2477

FLORIDA REAL ESTATE COMMISSION

Respondent

/

RESPONDENT'S EXCEPTIONS TO RECOMMENDED ORDER

COMES NOW the Respondent and, pursuant to s. 120.57, Florida Statues, files these Exceptions to the Hearing Officer's Recommended Order of November 26, 1991, as follows:

1. Respondent excepts to Finding of Fact #7, which is contrary to the evidence in the record. Respondents' Exhibit #1, admitted into evidence (Transcript, Pages 5 and 6), reflects on page 16 of Respondent's Exhibit #1 that, as late as November 15, 1990, the Petitioner was still under the control and supervision of the Department of Corrections. The formal hearing was held on September 10, 1991; and, from that date to when Petitioner testified, one year had not yet elapsed from the earliest time probation was terminated.

   
   

   Therefore, the Hearing Officer's Finding of Fact #7 is not supported, but rather is contradicted, by the documentary evidence introduced and which, as a matter of fact was provided by the Petitioner himself.

   
   

2. Respondent also excepts to Finding of Fact #2, because the Hearing Officer went beyond his designated duty of being a "finder of Facts" and further characterized the conduct of the Petitioner while operating a travel agent business. The Hearing Officer stated that "(the Petitioner) dealt honestly with all ticket stock and with the money entrusted to him by his clients in the business." No competent, substantial evidence was provided by the Petitioner, and none was admitted into evidence, to support that portion of the Finding of Fact #2, excepted herein.

   
   

3. Respondent further excepts to the Hearing Officer's Conclusion of Law (Recommended Order, Page 6) that the Petitioner "may now have that quality of character which would entitle him to licensure." Said conclusion is, in part, based on the Petitioner's conduct while dealing with the ticket stock for (Petitioner's) travel agency. The Petitioner's conduct before the commission of the criminal offense and conviction is totally immaterial and irrelevant and should not have been considered,

   
   

4. In addition, Respondent excepts to the Hearing Officer's Conclusion of Law in the Recommended Order, Page 7, as it is contrary to the requirements set forth in s. 475.17(1)(a), Florida Statutes, that authorizes the Florida Real Estate Commission to qualify an applicant who has been guilty of conduct or practices which would have been grounds to revoke or suspend his license had the applicant been, at the time, licensed. Two prerequisites must be present in an applicant case for the Commission to be able to exercise its authority to qualify such an applicant, to wit: (a) the lapse of time and (b) subsequent good conduct and reputation.

   
   

   The Hearing Officer himself recognizes and concludes that not sufficient time has elapsed. In the Hearing Officer's own words, " a period of one year is too short...." Therefore, one of the essential elements to be considered is missing in the instant case. Consequently, said Conclusion of Law fails on its own.

   
   

5. Finally, Respondent excepts to the Hearing Officer's Recommendation, as made, as not being statutorily authorized. Therefore, it should be rejected.

WHEREFORE, an Order should be issued which:

1. Approves and adopts these Exceptions in their entirety;

   
   

2. Rejects the Hearing Officer's Finding of Fact and Conclusions of Law addressed by the Exceptions, for the reasons herein expressed;

   
   

3. Approves and adopts those Findings of Fact and Conclusions of Law in the Recommended Order which were not rejected;

4. Rejects the Hearing Officer's Recommendation; and

   
   

5. Denies Petitioner's application for licensure, without prejudice.

Respectfully submitted, ROBERT A. BUTTERWORTH ATTORNEY GENERAL

Manuel E. Oliver

Assistant Attorney General Suite 107 South, 400 W Robinson

Orlando, FL 32801

(407) 423-6048

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to Hearing Officer William B. Dorsey, Jr., Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and to Richard Thompson, Jr., 2637 Sugarloaf Lane, Ft. Lauderdale, FL 33312, this 9th day of December 1991.

Manuel E. Oliver

Assistant Attorney General

Docket for Case No: 91-002477

Orders for Case No: 91-002477