STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDERICK JOSEPH PEELE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3221

)

FLORIDA REAL ESTATE )

COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Titusville, Florida, on October 3, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Frederick Joseph Peele, pro se

7675 U.S. 1 South, Lot 45

Titusville, Florida 32780

For Respondent: Joselyn M. Price

Assistant Attorney General Counsel for Florida Real Estate

Commission

400 West Robinson Street Suite S 107

Orlando, Florida 32801 STATEMENT OF THE ISSUES

The issue in this case is whether Petitioner is entitled to take the examination for licensure as a real estate salesman.

PRELIMINARY STATEMENT

By application filed November 26, 1990, Petitioner commenced the process by which to obtain a real estate salesman's license. By letter dated May 21, 1991, Respondent informed Petitioner that his application had been denied due to his criminal convictions. By letter dated May 13, 1991, following receipt of preliminary notice of an adverse decisions Petitioner requested a formal hearing.

At the hearing, Petitioner called one witness and offered into evidence six exhibits. Respondent called no witnesses and offered into evidence one exhibit.

The transcript was filed October 21, 1991. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. By application filed November 26, 1990, Petitioner requested licensure as a real estate salesman. In the application, he answered in the affirmative a question asking if he had ever been convicted of a crime.

   
   

2. On December 1, 1982, Broward County Circuit Court received a guilty plea from Petitioner to carrying a concealed firearm and possession of codeine. The Court withheld adjudication and sentenced Petitioner concurrently to two years' probation on each count. Petitioner may have been found guilty of a separate charge of driving while intoxicated. However, the State dropped charges of possession of diazepam. Petitioner completed the probationary period without incident.

   
   

3. Petitioner was arrested on December 4, 1985, for loitering and hindering traffic. However, no competent evidence establishes that Petitioner was found, or in fact was, guilty of anything in connection with the arrest.

   
   

4. On September 21, 1989, Petitioner pleaded guilty to a charge of possession of a controlled substance--cocaine. The Duval County Circuit Court withheld adjudication of guilt and placed Petitioner on probation for a period of 12 months. Additional requirements of probation were that Petitioner had to submit to random urinalyses, complete drug education classes and pay court costs of $620. Petitioner completed the probation successfully.

   
   

5. Petitioner, who is a currently licensed cosmetologist, operated a chain of beauty salons from 1958 through 1986. Following that, he worked as a civil process server for the Duval County Sheriff's Office and an attendant with the Mayport ferry operated by the Florida Department of Transportation in the Jacksonville area. Petitioner has not been significantly employed for over a year, during which time he has resided with his mother in Titusville.

   Petitioner denies having a problem with alcohol presently.

   
   

6. Petitioner's application contains favorable recommendations as to good character reputation for honesty from many persons who, in most cases, have known him for many years.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

8. Section 475.17(1)(a) requires that applicants for licensure be honest, truthful, trustworthy, and of good

   character; and have a good reputation for

   fair dealing.... [I]f 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 to be qualified unless, because of

   lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to [Respondent] that the interest of the public and investors will not likely be endangered by the granting of registration.

9. Section 475.25(1)(f) allows Respondent to deny an application if he Has been convicted or found guilty,

   regardless of adjudication, of a crime in any jurisdiction which directly relates to the activities of a licensed broker, salesman, or appraiser ... or involves moral turpitude

   or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for the 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.

   
   

10. Sufficient time has passed since the 1982 crimes for Petitioner to obtain a license. The 1985 arrest likewise does not disqualify Petitioner. The primary question in this case is the effect of the plea of guilty in 1989 to possession of cocaine. Although the guilty plea to possession of cocaine is evidence of a lack of good character, other evidence of Petitioner's reputation tends to rebut the inferences that would normally flow from such an incident.

    
    

11. The key issue is whether the possession of cocaine directly relates to the activities of a licensed salesman or involves moral turpitude or fraudulent or dishonest dealing. There is no evidence of fraudulent or dishonest dealing.

    Moral turpitude

    
    

    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. [Citation omitted.] It has also been defined as anything done contrary to justice, honesty, principle, or good morals...

    
    

    State ex rel. Tullidge v. Hollincsworth, 108 Fla. 607, 146 So. 660 (1933).

    
    

12. In Pearl v. Florida Board of Real Estate, 394 So.2d 190 (Fla. 3d DCA 1981), the court held that adjudications of guilt, pursuant to guilty pleas, on three felony counts of possession of controlled substances was not a crime involving moral turpitude.

    
    

13. The facts of this case do not justify a finding that Petitioner's felony possession of cocaine is a crime involving moral turpitude.

    
    

14. Similarly, there is no reason to treat the felony possession of cocaine, in a case involving an application for a real estate salesman's license, as directly relating to the activities of the salesman, in the absence of additional facts that might render Petitioner unsuitable for licensure as a real estate salesman. A physician or pharmacist, who must handle controlled

substances regularly, presents a different issue. By contrast, the activities of a real estate salesman are not affected by Petitioner's felony possession of cocaine because of the different nature of the responsibilities of a real estate professional.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Real Estate Commission enter a final order allowing Petitioner to take the real estate salesman's examination.

ENTERED this 1st day of November, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

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 1st day of November, 1991.

COPIES FURNISHED:

Darlene F. Keller Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, FL 32801

Frederick Joseph Peele, pro se 7675 U.S. 1 South, Lot 45

Titusville, FL 32780

Joselyn M. Price

Assistant Attorney General

Counsel for Florida Real Estate Commission

400 West Robinson Street Suite S 107

Orlando, FL 32801

Jack McRay General Counsel

1940 North Monroe Street Tallahassee, FL 32399-0792

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.

Docket for Case No: 91-003221

Orders for Case No: 91-003221