Findings Of Fact In July 1975, in Hillsborough County, Florida, Petitioner was arrested on the charge of buying, receiving and concealing stolen property. He was placed in the Pretrial Intervention Program, which he successfully completed. As a result, formal charges were either never filed or were dismissed by the State Attorney. On January 18, 1982, Petitioner entered a nolo contendere plea to one charge of trafficking in excess of ten thousand pounds of cannabis in Hernando County, Florida. Adjudication of guilt and imposition of sentence was withheld by the court. Petitioner was placed on probation for twelve years. On August 1, 1983, in Pinellas County, Florida, Petitioner entered pleas of nolo contendere to the offenses of aggravated assault with the use of a firearm and carrying a concealed weapon on or about his person. The court accepted Petitioner's pleas. Adjudications of guilt were withheld on August 1, 1983. Petitioner was placed on probation for a period of five years, to run concurrent with his probation in Hernando County, Florida. Petitioner's probation in the trafficking case was terminated early in Hernando County, Florida, on March 14, 1985. Petitioner's probation for the aggravated assault and the concealed weapon was terminated early in Pinellas County, Florida, on December 11, 1985. Petitioner was never adjudicated guilty of the charges the Division used as the basis for the denial of his application. As a result, he has not been convicted of any of these crimes as the term "conviction" is defined in Subsection 493.6101(8), Florida Statutes. Petitioner submitted eleven letters of good moral character from people in the community who have known him throughout the years and are aware of the prior criminal charges.
Recommendation Based upon the foregoing, it is RECOMMENDED: Petitioner's application for a Class "CC" Private Investigator Intern License should be granted. ENTERED this 17th day of June, 1992, in Tallahassee, Florida. VERONICA E. DONNELLY 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 17th day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Hearing Officer finding #7. The Department's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Rejected. Contrary to prehearing stipulation. See Preliminary Statement. Accepted. See Hearing Officer finding #1. Reject. Contrary to fact only one charge of trafficking in the Information and only one nolo contendere plea on a charge of trafficking. As the basis given for licensure denial was alleged trafficking charges, the importation of cannabis charge and nolo contendere plea were not considered by the Hearing Officer pursuant to Subsection 493.6118(3), Florida Statutes. See Hearing Officer finding #2. Accepted. See Hearing Officer findings #3 and #5. Accepted. See Hearing Officer finding #7. COPIES FURNISHED: Joseph H. Ficarrotta, Esquire 600 Madison Street Tampa, Florida 33602 Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire Honorable Jim Smith General Counsel Secretary of State Department of State The Capitol The Capitol Tallahassee, Florida 32399-0250 Tallahassee Florida 32399
Findings Of Fact At all times pertinent to the issues herein, the Criminal Justice Standards and Training Commission was the state agency responsible for the training and certification or law enforcement and corrections officers in Florida. Respondent was certified as a Corrections Officer under certificate No. 48891 on August 8, 1991. On June 29, 1994, Respondent was employed as a Corrections Officer I at the Hillsborough Corrections Institute in Tampa and had been so employed for approximately three and a half years. On that day, officer Ricardo Sementilli, a policeman with the Tampa Police Department's narcotics bureau, with approximately six and a half years experience in law enforcement, was targeting a house in Carver City, a Tampa housing area, for suspected unlawful narcotics activity. In the course of his investigation, Officer Sementilli was using the services of a confidential informant, Penny DuFour. Ms. DuFour, herself a former drug user, had been working as an informant for the police in general and for Officer Sementilli in particular for almost two years. On this evening, he proposed to have Ms. DuFour make a controlled purchase of illegal drugs at this particular residence. As preparation for the controlled buy, Ms. DuFour was searched by Officer Keene, also of the Tampa Police Department, to insure that she did not have any narcotics or other contraband in her possession. None was found during this search which is a normal procedure of the Tampa Police Department as a part of a controlled purchase by a confidential informant. Officer Keene was assigned to the Police Department's Tactical Division in narcotics enforcement and had worked in that division for approximately five years. She was working with Sementilli on this operation because he was well known and she was unknown in the geographic area in which the buy was to be made. Pursuant to the officers' plan, Officer Sementilli drove Ms. DuFour and Officer Keene to the intersection of Laurel and Manhattan Streets in Carver City. At this point, Keene, who had binoculars with her, hid out of sight behind a wall at Jefferson High School in a position where she could see Ms. DuFour. When Keene was in place, DuFour was sent out from the police vehicle to approach the residence in question. Keene was able to keep DuFour in sight the entire time using the binoculars. As DuFour approached the residence in question, a red compact car, occupied by Mr. Sampson and the Respondent, drove up. Both DuFour and Keene indicated Mr. Sampson was in the passenger seat and Respondent, who was dressed in a law enforcement uniform, was driving. DuFour went up to the vehicle and leaned in the passenger window. She asked Mr. Sampson if he was "straight." By this she meant to ask if he had any narcotics on his possession. In response, Sampson said he did, reached under the passenger seat of the car, and pulled out a plastic baggie in which were several pieces of what appeared to be cocaine. He placed the baggie in his lap and from it extracted a small piece of the substance which he gave to DuFour in exchange for $20.00 in U.S. currency which DuFour had been given by Officer Sementilli. All during this time, the baggie was in plain view on Sampson's lap and Respondent could see what was happening. She was either looking at Sampson or looking out the window, and Ms. DuFour was of the opinion that Respondent was fully aware of what was going on though she did not say anything. It is so found. After she received the substance from Sampson and paid him for it, DuFour left the vehicle and returned to where Officer Keene was located without either stopping or speaking with anyone on the way. When she got to Keene, she handed over the substance she had received from Sampson and was searched to insure she had not hidden any additional contraband on her person. She had not. Sementilli performed a field test of the substance at the scene. The test indicated the substance DuFour had received from Sampson in the presence of the Respondent was cocaine. This tentative identification was subsequently confirmed by a laboratory analysis conducted by the Florida Department of Law Enforcement. No issue was raised as to chain of custody of the sample in question or as to its identification as cocaine. At the time the sale took place from Sampson to DuFour, the officers obtained the license tag number on the vehicle being driven by Respondent and from which Sampson made the sale. A subsequent check with the Department of Motor Vehicles revealed that the vehicle was owned by Louis Sales, Respondent's father. Approximately one month after the sale described above, the car was discovered at the home belonging to Mr. Sampson's mother. As the officers were attempting to impound the vehicle, Respondent approached them. Keene at that time identified Respondent as the driver of the vehicle at the time of the sale in issue here and placed her under arrest. However, criminal charges were not preferred against her. At hearing, Respondent indicated that on the day of the alleged sale, she had been driven to work in her father's car by her boyfriend, Mr. Sampson, who was without his own vehicle at the time. While at work, she was interrogated by facility investigators relative to an allegation that she was introducing contraband into the corrections facility. Because this upset her, she asked for and was give permission to leave work early, approximately 5:30 PM. She then contacted Mr. Sampson who picked her up in her vehicle at approximately 7:00 PM that evening. When Sampson and Respondent left the corrections facility, they drove to Carver City because Sampson said he had to run an errand in the area. At that time Carver City, located some 45 minutes from Plant City, where Respondent lived, was known as an area of high drug activity. It was not uncommon for many drug dealers to be operating on the streets of the community. Respondent knew that Mr. Sampson was a drug dealer. He would sometime sell drugs openly in front of her. She had been present on several other occasions when DuFour had purchased cocaine from Mr. Sampson. At the time she met Mr. Sampson, in December, 1993, notwithstanding she denied it, Respondent knew he had just recently been released from prison because he told her so. He had been convicted of escape and grand theft. Nonetheless, they developed a relationship during the course of which she admittedly began to suspect he was dealing drugs. She did not ask him if this was so, however, even though she knew that her knowing association with a drug dealer could place her certification in jeopardy. When she became convinced that Sampson was dealing drugs, Respondent still did not terminate the relationship, however, claiming she was afraid to do so. When she was arrested as a result of the instant sale, however, she finally broke off the relationship. As a result of the controlled buy in issue, Mr. Sampson was convicted of sale of cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Sydell T. Sales, be found guilty of demonstrating less than good moral character, and that her certification as a corrections officer be placed on probation for a period of one year. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of December, 1995. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Miriam L. Sumpter, Esquire 2700 North MacDill Avenue Suite 208 Tampa, Florida 33607 A. Leon Lowry, II Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner's application for licensure as a real estate sales associate or broker should be granted.
Findings Of Fact The Parties Petitioner, who was 49 years old at the time of the final hearing in this cause, is an applicant for licensure as a real estate sales associate or broker. Respondent Florida Real Estate Commission is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. Petitioner's Criminal History On April 15, 1986, Petitioner was arrested in Middleton, New York, for the charge of second degree assault. Petitioner ultimately pleaded guilty to the reduced charge of third degree assault and was ordered to pay a fine of $300. In or around June 1990, the State Attorney for Florida's Fifteenth Judicial Circuit charged Petitioner, in case number 91-239207, with one count of burglary of a dwelling (a second degree felony), three counts of grand theft (each a third degree felony), and two counts of dealing in stolen property (each a second degree felony). Subsequently, on August 14, 1991, Petitioner pleaded guilty to each of the foregoing charges and was sentenced to eight months of incarceration in the Palm Beach County jail. Approximately seven years later, the United States Attorney for the Southern District of New York indicted Petitioner for wire fraud. On July 8, 1998, Petitioner pleaded guilty to the charge and was sentenced to 30 months of imprisonment, followed by a term of probation (the exact length of which is not established in the instant record). Petitioner was also ordered to pay $745,000 in restitution to the victim(s) of his fraudulent behavior. Subsequently, in or around 2003, Petitioner——having previously completed his prison sentence——fell behind on his restitution payments, at which point the government violated his supervision. As a result, Petitioner was incarcerated for approximately 30 days until his wife's family satisfied the arrearage of $26,230.61. Although not established precisely by the testimony or exhibits, it appears that Petitioner's supervision in connection with the wire fraud charge was terminated in 2005 or 2006 and that the outstanding restitution balance of $500,000 was reduced to a civil judgment. Application for Licensure and Intent to Deny On May 16, 2011, Respondent received Petitioner's application for licensure as a real estate sales associate or broker. In the application, Petitioner properly responded "yes" to question number one, which asked, among other things, if he had ever pleaded guilty or no contest to a crime in any jurisdiction. Subsequently, on May 20, 2011, Respondent advised Petitioner in writing that it required: [T]he full details of any criminal conviction . . . including the nature of any charges, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which the proceeding were held or are pending . . . . (emphasis added). Nearly one month later, on June 17, 2011, Respondent received an eight-page facsimile from Petitioner, which included, in relevant part: the second page of the federal criminal judgment, a document which actually consists of six pages1/ (the other five pages are not part of the record, nor does it appear that they were provided to Respondent); the judgment and sentence in connection with the Florida burglary, grand theft, and dealing in stolen property charges; and, as quoted below, Petitioner's vague explanations of the New York assault charge, Florida offenses, federal mail fraud charge, and probation violation: [New York assault charge] Pled guilty to a fight. Fined $300. [Florida charges] [S]tems from one arrest pled guilty sentenced to 8 months jail time. There is an error in record it looks like several arrest [sic] but it was only one document provided. [Federal wire fraud charge] [A] single charge of wire fraud sentenced to 30 months ordered to pay restitution. [Federal probation violation] I was violated for being unable to keep up with restitution payments was released after paying the sum of $26230.61. On July 16, 2010, Respondent filed its Notice of Intent to Deny Petitioner's application for licensure. The intended denial was based upon the following reasons: B. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing competent and qualified to conduct transactions and negotiations with safety to others. G. Convicted or found guilty or entered a plea of nolo contendre to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. Petitioner's Final Hearing Testimony During the final hearing, Petitioner testified that he has not been arrested since 2003——when he was violated for the restitution arrearage——and that he presently manages an automobile dealership. Regarding his criminal conduct, Petitioner offered very little detail other than a brief explanation that the wire fraud charge involved a scheme in which he ordered laptop computers but never paid for them. Notably, Petitioner expressed no remorse for his conduct, either during his hearing testimony or in the written materials submitted to Respondent during the application process. Further, and equally troubling, Petitioner conceded that he has made no payments whatsoever against the outstanding restitution judgment since 2006. With respect to the Florida burglary, dealing in stolen property, and grand theft charges (to which he pleaded guilty), Petitioner testified that he did not commit a burglary and that he only attempted to pawn items that had been stolen by somebody else——an explanation the undersigned finds dubious at best. Once again, Petitioner expressed no remorse for his criminal misdeeds.2/ As to the present state of his character, Petitioner testified that he now values——and recognizes the importance of—— honesty, a good reputation, and fair dealing. However, other than these self-serving remarks, his present employment, and the absence of any recent arrests, Petitioner offered no persuasive evidence of his honesty or character. Further, no credible evidence was adduced concerning his reputation for fair dealing. Ultimate Factual Findings The undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that he is honest, trustworthy, of good character, and has a reputation for fair dealing, all of which are requirements for licensure as a real estate professional. Furthermore, the undersigned finds, as a matter of ultimate fact, that the statutory disqualification of eligibility that flows from a guilty plea to one or more crimes involving moral turpitude has not been overcome by way of subsequent good conduct and lapse of time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate or broker. DONE AND ENTERED this 20th day of January, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2012.
Findings Of Fact Based upon the record evidence, the following Findings of Facts are made: Idaliza Roman is employed by Respondent as a Collections Specialist II. She is assigned to Respondent's Plantation, Florida office. As part of her job responsibilities, she issues assessments against persons suspected of having engaged in illicit drug activity made taxable by Section 212.0505, Florida Statutes. On October 13, 1989, Roman issued such an assessment against Petitioner. She also issued and filed a tax warrant based on the assessment. The assessment alleged that, on or about August 16, 1989, Petitioner had engaged in a taxable transaction involving 27 kilograms of cocaine. In making this allegation, Roman relied exclusively upon information she had gleaned from a probable cause affidavit contained in a court file, as well as a laboratory report and a property room receipt. She conducted no further investigation into the matter before issuing the assessment. The probable cause affidavit upon which Roman relied reflected that Petitioner had been arrested on August 16, 1989, for a cocaine-related offense. It did not reveal, however, when the alleged offense had been committed. Roman assumed, erroneously, that it had been committed on or about the date of Petitioner's arrest. The arrest actually had been for an offense, involving substantially less than 27 kilograms of cocaine, that Petitioner had allegedly committed in January, 1989. The authorities had no information that Petitioner had been involved in any illicit, drug-related activity on or about August 16, 1989. On April 3, 1990, Roman discovered that the October 13, 1989, assessment against Petitioner and the tax warrant she had issued based on the assessment were incorrect. She thereupon issued and filed a "corrected" tax warrant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be issued sustaining Petitioner's challenge to the October 13, 1989, jeopardy assessment issued against him and rescinding the assessment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of May, 1990. 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 21st day of May, 1990.
Findings Of Fact Respondent took the examination for real estate salesman and was licensed December 16, 1982. His license was last renewed in December 1984 (exhibit 1 and Price testimony). At all times relevant hereto he was licensed by Respondent as a real estate salesman. By judgment dated-May 10, 1985, Buford D. Price was convicted of murder in the third degree, possession of cocaine, and possession of narcotic paraphernalia. Respondent was sentenced to seven (7) years imprisonment on the murder charge, imposition of sentence was withheld on the narcotic charges and he was placed on probation for five (5) years to run consecutively to the imprisonment. Respondent expects to be released from prison by June 1988 although his current release date is June 8, 1989. For the past three months he has been working outside prison on the highways and in communities. Prior to his arrest and incarceration Respondent worked principally for property management companies and Pulte Homes. As owners of the property leased or sold their salesmen do not need a real estate license to sell or lease such property only.
The Issue The issue presented is whether Respondent should deny an application for a real estate broker's license on the grounds that the applicant pled nolo contendere to a crime involving moral turpitude, within the meaning of Subsection 475.25(1)(f), Florida Statutes (2004), was adjudicated guilty of the crime, and has not been rehabilitated.
Findings Of Fact Respondent is the state agency responsible for licensing real estate brokers and sales persons in the State of Florida, pursuant to Chapter 475, Florida Statutes (2003). Respondent has licensed Petitioner as a real estate sales person since July 1, 1996. Petitioner has also been licensed in the state as a mortgage broker since September 1, 1993. On June 25, 2004, Petitioner applied for a license as a real estate broker. On December 1, 2004, Respondent issued a Notice of Denial. The Notice of Denial proposes to deny the license application on specific grounds. The Notice limits the grounds for denial to those included in the following statement: The Florida Real Estate Commission has determined that the Applicant has been adjudicated guilty of crimes relating to the activities of a licensed broker or sales associate, and crimes of moral turpitude or fraudulent or dishonest dealing. Specifically it has found that the applicant . . . has been convicted of or found guilty of, or entered a plea of nolo contendere to: Contributing To The Delinquency of A Minor, 2001 During the hearing, Respondent stipulated that it does not seek denial of the application on the grounds that the alleged crimes relate to the activities of a licensed broker or sales associate or to fraudulent or dishonest dealing. Respondent relies solely on allegations that Petitioner pled nolo contendere to the misdemeanor charge of contributing to the delinquency of a minor; that the crime involved moral turpitude; and that Petitioner was adjudicated guilty and has not been rehabilitated.1 It is undisputed that Petitioner pled nolo contendere in 2001 to a first-degree misdemeanor in the Circuit Court of Charlotte County, Florida, for contributing to the delinquency of a minor. The factual allegations in the criminal proceeding were that Petitioner solicited a 13-year-old female (minor female) to pose topless or nude on August 2, 2001, when Petitioner was approximately 38 years old. It is undisputed that the minor female did not pose for Petitioner. The court adjudicated Petitioner guilty and withheld sentencing. Petitioner paid $353 in costs, served 75 hours of community service, and successfully completed probation of 12 months. The Notice of Denial does not allege that Petitioner actually committed the crime of contributing to the delinquency of a minor. Nor does the applicable statute require proof that Petitioner committed the acts alleged in the criminal proceeding as a prerequisite for denial in this proceeding.2 It is legally unnecessary to determine whether Petitioner is guilty of the crime to which he pled nolo contendere. The entry of the plea, by itself, is a sufficient statutory ground for the proposed denial. The plea does not operate statutorily as conclusive evidence that Petitioner committed the crime to which he pled nolo contendere.3 No finding is made in this proceeding that Petitioner either did or did not solicit the minor female. The court adjudicated Petitioner guilty, and this Recommended Order refers to the solicitation as the adjudicated solicitation. The threshold factual issue in this proceeding is whether the adjudicated solicitation involved moral turpitude. If so, it must be determined whether there is a rational connection between the moral turpitude and Petitioner's fitness to engage in the real estate business. If the requisite connection exists, it must be determined whether Petitioner has been rehabilitated and is not a "danger to the public." The adjudicated solicitation involved an act of moral turpitude. Solicitation of a 13-year-old female to pose topless or nude was a substantial deviation from the standard of conduct acceptable in the community, violated the duties owed to society, and was an inherently base or depraved act.4 The base or depraved nature of the adjudicated solicitation did not arise from a desire for monetary gain, as the motive typically is in other crimes, such as grand theft or the intent to sell controlled substances, that have been held to involve moral turpitude.5 Rather, the base or depraved nature of the adjudicated solicitation arose from an attempt to coerce the involuntary compliance of a minor female by exploiting her vulnerability; exploiting a financial relationship over which Petitioner enjoyed financial control; and exploiting a quasi- familial relationship in which Petitioner was imbued with the advantage of an authority figure.6 A person of common understanding would have known there was a substantial and unjustifiable risk that such conduct would encourage delinquency and that disregard of that risk was a gross deviation from an appropriate standard of conduct. At age 13, the minor female was nowhere near the 18 years of age required for legal majority. That vulnerability was accentuated during the adjudicated solicitation by Petitioner's age of 38. The minor female was also financially dependent on Petitioner for income as the family babysitter. Petitioner enjoyed the advantage of financial control of that relationship and possessed the power to terminate the relationship. Petitioner also enjoyed the benefit of an authority figure in a quasi-familial relationship. The minor female is the daughter of the brother of Petitioner's wife. The minor female is not legally the niece of Petitioner because the brother never married the mother of the minor female. The minor female is also a long-time friend of Petitioner's daughter. There is no direct evidence of actual intent to exploit the vulnerability of the minor female and any existing relationship. However, Petitioner should have known that the minor female was in a position of vulnerability and that the adjudicated solicitation necessarily exploited her vulnerability and the advantages he enjoyed in their relationship. A person of common understanding would have known there was a substantial and unjustifiable risk that the solicitation would tend to cause or encourage delinquency. The risk was of such a nature and degree that Petitioner's adjudicated disregard of that risk was a gross deviation from the appropriate standard of conduct.7 The moral turpitude evidenced by the adjudicated solicitation in 2001 is not rationally connected to the applicant's fitness to engage in the real estate business. Respondent admits that the adjudicated solicitation is not related to the activities of a licensed broker or sales associate and does not involve fraudulent or dishonest dealing. It is undisputed that the adjudicated solicitation did not impugn Petitioner's fitness to engage in the real estate business. From July 1, 1996, through the date of hearing, Petitioner has functioned as a licensed real estate sales person with no harm to the public before or after the adjudicated solicitation. Petitioner disclosed the adjudicated solicitation to Respondent sometime after June 25, 2004. Respondent did not prevent Petitioner from engaging in the real estate business as a sales person. Respondent cited no evidence or authority to support a finding or conclusion that the misdemeanor disqualifies Petitioner from performing the functions of a real estate broker, but does not disqualify Petitioner from performing the duties and responsibilities of a real estate sales person. As a mortgage broker, Petitioner maintains trust accounts and transfers client deposits to third parties, including surveyors and credit reporting agencies. The absence of a rational connection to the applicant's fitness to practice real estate imbues the allegation of moral turpitude with the potential for arbitrary and discriminatory denial of the license application.8 The potential for selective enforcement should be avoided. The issue of whether Petitioner has been rehabilitated is moot in the absence of a rational connection between an act of moral turpitude and the fitness to engage in the real estate business. If it were determined that a rational connection existed between the adjudicated solicitation in 2001 and the fitness of Petitioner to engage in the real estate business, Petitioner has been rehabilitated.9 Petitioner paid the required court costs, served the community service, and completed his probation. Petitioner is a father of three children, has been married for more than 16 years, is a licensed real estate sales person, a licensed mortgage broker, and has not exhibited a pattern or practice of violations before or after the incident on August 2, 2001. Rather, the incident in 2001 stands alone as the only blemish on an otherwise flawless professional record as a real estate agent and a mortgage broker. The issuance of a broker's license to Petitioner does not frustrate legislative intent. The issuance of a license does not expose the public to a dishonest real estate broker that engages in fraudulent practices. The crime for which Petitioner was adjudicated guilty does not impugn the honesty of Petitioner or his ability to deal fairly with the public in the real estate business.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the license application. DONE AND ENTERED this 25th day of August, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2005. 1/ Transcript at pages 44-45. 2/ The last sentence in Subsection 475.25(1)(f), Florida Statutes (2003), states that the court record of conviction is prima facie evidence of guilt. However, the statutory language preceding the last sentence does not expressly require proof of guilt as a prerequisite for denial. The last sentence appears to be a vestige from former statutory language that required a plea of nolo contendere to be treated as a conviction. The legislature deleted the former statutory language from the current statute, but, so far, has not deleted the remaining vestige of the former statute. The issue is discussed further in the Conclusions of Law. If proof of guilt were a statutory prerequisite for denial, evidence Petitioner submitted to overcome the prima facie showing of guilt or to mitigate the prima facie showing of guilt is neither credible nor persuasive to the trier of fact. The relevant evidence consists of Petitioner's own testimony and hearsay statements that the testimony attributes to the minor female, members of her family, and others. The hearsay did not supplement or explain competent and substantial evidence within the meaning of Subsection 120.57(1)(c), Florida Statutes (2003). 3/ Cf. McNair v. Criminal Justice Standards and Training Commission, 518 So. 2d 390, 391 (Fla. 1st DCA 1987)(plea is not statutorily evaluated as conclusive evidence of the commission of wrongdoing but is, by itself, statutorily sufficient for disciplinary action). This issue is discussed further in the Conclusions of Law. 4/ Neither party cited an applicable statute or rule that defines moral turpitude. Judicial decisions generally hold that moral turpitude involves: . . . the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (citations omitted) It has also been defined as anything done contrary to justice, honesty, principle, or good morals. . . . State ex rel. Tullidge v. Hollingsworth et al., 108 Fla. 607, 146 So. 660, 611 (Fla. 1933). 5/ Judicial decisions finding moral turpitude in the exploitation of others for monetary gain are discussed in the Conclusions of Law. 6/ Judicial decisions discussing exploitation of vulnerable persons in professional relationships are discussed further in the Conclusions of Law. 7/ Culpable knowledge is an element in the judicial definition of contributing to the delinquency of a minor. State v. Shamrani, 370 So. 2d 1, 2 n.3 (Fla. 1979); Kito v. State, 888 So. 2d 114, 116 (Fla. 4th DCA 2004). 8/ By analogy, the Florida Supreme Court has held that a rational connection to an applicant's fitness to practice law must be applied to the requirement for good moral character or the requirement could become "a dangerous instrument for arbitrary and discriminatory denial of the right to practice law." Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454, 458-459 (Fla. 1978). 9/ Counsel for Respondent questioned Petitioner in an unsuccessful attempt to show that Petitioner currently lacks veracity and is therefore dishonest. Counsel stipulated that the grounds for denial do not include dishonesty or fraudulent practices. The attempt to show current dishonesty is relevant only to the issue of rehabilitation. See Transcript at pages 36-51. 10/ The agency action in McNair was mandatory but is discretionary in this proceeding. The substantially affected party in McNair pled nolo contendere to a felony while Petitioner entered a similar plea to a misdemeanor. However, those factual distinctions are not material to the absence in the applicable statute of the former statutory infirmity that spawned the requirement of proof of guilt in Ayala and Son. 11/ Unlike the facts in the instant case, the holding in some of the cited cases are arguably ambiguous in that the allegations recite all of the grounds in the applicable statute, and it is not clear in every case whether the decision is restricted to allegations of moral turpitude. COPIES FURNISHED: Barbara Rockhill Edwards, Esquire Department of Legal Affairs Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Daniel Villazon, Esquire Daniel Villazon, P.A. 419 West Vine Street Kissimmee, Florida 34741 Guy Sanchez, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate sales person pursuant to license number 0640934. The last license issued to Respondent was c/o Raizor Realty, Inc., 12007 Cypress Run Road, Orlando, Florida 32836. On July 3, 1996, Respondent applied for a license as a real estate salesperson. On the application, Respondent signed a sworn affidavit that all of his answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . Question nine on the application asked Respondent whether he had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no." Petitioner relied on the accuracy of the application and issued a license to Respondent. Respondent is active in the practice of real estate and depends on his license to earn a living. Respondent has no prior disciplinary history and has been licensed for approximately two years. On February 20, 1985, Respondent was adjudicated guilty of misdemeanor theft. The court suspended the sentence. Petitioner had changed the price stickers on a pair of shoes valued at $20 and on a jar of vitamins. The court found Respondent guilty of misdemeanor theft, fined him $100, and sentenced him to 30 days in jail. The jail sentence was suspended pending completion of six-months' probation. Respondent completed probation in a satisfactory and timely manner. Respondent did not willfully misstate a material fact. He conferred with friends. They advised Respondent that the matter was immaterial and more than seven years old. Respondent answered no to question nine on his application in the good faith belief that the crime was immaterial and not the type of offense addressed in the question. When Petitioner's investigator inquired of Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), and dismissing the charges against Respondent. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Richard Stephan Flatt, M.D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation (Petitioner) as a medical doctor and was so licensed at all times here relevant. Respondent has been a Board certified Dermatologist since 1957 and has practiced Dermatology in Sarasota for some 20 years. He is 54 years old. Tana Williams was a patient of Respondent in 1971 when he first treated her for warts, and he also treated Ms. Williams' daughter. Afterward she left Sarasota but returned in 1975 or 1976, at which time she was divorced. She visited Respondent's office for treatment of warts on 5 April 1976. Her appointment was near the close of Respondent's office hours. During this visit she told Respondent she was divorced; that she liked older men; and that she would like to see him socially. He suggested she come back to the office after 5:30 p.m. when his nurse normally departed. Upon her return after 5:30, Respondent and Ms. Williams discussed an arrangement whereby he would contribute $250 per month towards her support and spend weekends at the apartment she would occupy. According to Respondent's testimony, at this time he was going through a mid-life crisis and was delighted with the prospects of being desired by a woman 23 years his junior. Some two weeks later the first weekend was shared. Although the situation was very satisfactory to Respondent, the $250 per month was insufficient even to pay the rent, let alone satisfy Ms. Williams' money requirements. Accordingly, Respondent found the liaison was costing more than he could fund from his ready cash. After the 5 April 1976 visit, Ms. Williams did not again visit Respondent's office, or consider herself Respondent' s patient. In addition to cash, Ms. Williams also wanted drugs for her nervous condition and Respondent began supplying her with Quaaludes in the latter part of 1978. By 1979, Ms. Williams was psychologically dependent on Quaaludes and was taking 10 to 12 per day. As Respondent became more financially strapped the Quaaludes were provided for the additional purpose of being converted by Ms. Williams into cash to help maintain her life style. In 1976 Respondent began ordering Quaaludes and Preludin from New York drug houses under his DEA authorization. The Quaaludes started out in quantities of 200 every few months but increased to 1,000 nearly every month by the end of 1979. Most, if not all, of the 11,000 300 mg. Quaaludes Respondent ordered on an Official Order Form for Controlled Substances were given to Ms. Williams. In addition, Respondent ordered Preludin which he also gave to Ms. Williams. Both Preludin and Quaaludes are Class II controlled substances. Due to Ms. Williams' increasing dependence on Quaaludes, nearly half of these drugs given her by Respondent were taken by her. Petitioner presented no evidence that Preludin was wrongfully prescribed or abused. During the nearly four years the relationship continued, several interruptions occurred, due largely to Ms. Williams' living with other men, one of whom she married for a short period of about two months. During the periods Ms. Williams was living with other men, she would contact Respondent to continue or renew their liaison and even threatened suicide and to publicize their relationship to his wife if he did not continue to see her. In the latter months of their association, assignations were arranged at motels at which Respondent gave Ms. Williams money and/or drugs in exchange for sex. In addition to supplying Ms. Williams with drugs obtained on Official Order Forms, Respondent also wrote prescriptions in Ms. Williams' name, in the names of his children, or in the name of a fictitious person. Those prescriptions written in names other than Ms. Williams, Respondent took to Wallpole's Pharmacy personally and picked up the drugs. By this procedure from late 1978 through 1979 Respondent acquired an additional 1,249 300-mg. Quaaludes, 150 Preludin Endurettes, and 100 Preludin tablets which he gave to Ms. Williams. Using a confidential informant, the Sarasota police made two controlled buys of Quaaludes from Ms. Williams and on one of these occasions the informant was wired for sound so his conversations with Ms. Williams could be monitored. With information received from the confidential informant and a surveillance of Ms. Williams' residence, the police became aware that Respondent was Ms. Williams' supplier of drugs. On the morning of 8 February 1980, Ms. Williams was arrested at her home on charges of possession and sale of controlled substances. After being advised of her rights, she was taken down to the State Attorney's office where she was told that she could get up to 10 years in prison for possession and sale of drugs, but that if she cooperated with the police in their case against Respondent, the State Attorney's office would recommend probation rather than jail when she was sentenced. Prior to the arrest of Ms. Williams the Sarasota Police, state and federal drug authorities were aware of Respondent's involvement and were investigating. Respondent, too, was aware of his increasing vulnerability to criminal prosecution and requested a pharmacist to pass the word to the proper authorities that he would like to surrender his DEA certificate, under the authority of which he ordered controlled substances. On February 12, 1980 federal, state and local authorities, armed with information that Respondent had ordered some 11,000 Quaaludes from three New York drug companies during the period from 1976 to the present, visited Respondent's office, told him he was suspected of narcotics violation, read him his rights and asked to see his records. Respondent cooperated fully with the authorities and presented his records which confirmed that Respondent could not account for more than 10,600 Quaaludes during the period from 1976 to the date of the inspection. Respondent made a voluntary statement to the police in which he acknowledged many of the facts noted above. He also voluntarily surrendered his narcotics license. On 22 May 1980, Respondent pleaded guilty in the Circuit Court in and for Sarasota County of two counts of possession of methaqualone and two counts of sale of methaqualone. Adjudication of guilt was withheld, but the Court sentenced Respondent to probation for a period of three years and a $5,000.00 fine on each of the two counts of possession and sale.
Findings Of Fact Respondent, James K. Hart (Hart), was at all times material hereto licensed as a real estate broker-salesman in the State of Florida, having been issued license number 0302051. On November 26, 1986, in the Criminal Court of Washington County, Tennessee, Hart entered a voluntary plea of nolo contendere to the felony charge of attempt to commit a felony (conspiracy to distribute cocaine in excess of 30 grams). On October 6, 1987, the court found Hart guilty, and he was sentenced to three years confinement and ordered to pay a fine of $75,000. Hart did not notify petitioner within thirty days of having pled nolo contendere or having been convicted of such felony. Hart served 10 months and 27 days of his sentence in the county jail at Johnson City, Tennessee, and then, on August 27, 1988, was released to serve a two-year term of probation. Currently, Hart is serving his two-year term of probation, and reporting to authorities in Broward County, Florida. Hart is currently 50 years of age, and employed to sell kitchen cabinets. From such employment he grosses an income of $25,000 a year. At hearing, Hart offered proof that, as a consequence of his conviction, he owed approximately $220,000 to members of his family and his attorneys. According to Hart, absent the ability to practice as a real estate salesman, his chosen profession, he has no expectations of paying such debts or of providing for his retirement years. While the offense for which he was convicted involved a conspiracy to distribute cocaine, he avers that he has never used drugs, but committed the offense solely because of greed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the real estate broker-salesman's license of respondent, James K. Hart, be revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June 1989. WILLIAM J. KENDRICK 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 30th day of June 1989. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Not relevant. Addressed in paragraph 2. Addressed in paragraph 4. COPIES FURNISHED: STEVEN W. JOHNSON, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32801 KENNETH G. STEVENS, ESQUIRE 412 NE 4TH STREET FORT LAUDERDALE, FLORIDA 33301 DARLENE F. KELLER, DIVISION DIRECTOR DIVISION OF REAL ESTATE DEPARTMENT OF PROFESSIONAL REGULATION 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32801
