05-000598PL Department Of Business And Professional Regulation vs. William J. Flanagan, Iii Status: Closed Recommended Order on Wednesday, July 6, 2005.

Summary: Although Respondent`s explanation of circumstances was credible, the entry of a guilty plea to a crime involving moral turpitude constitutes a violation of Section 475.25(1)(f), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0598PL

)

WILLIAM J. FLANAGAN, III, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 6, 2005, an administrative hearing in this case was

held by videoconference between Tallahassee and Orlando,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

Fo r Petitioner: Alfonso Santana, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801 - 1757

For Respondent: Robyn Seve rs Braun, Esquire

Taylor & Carls, P.A.

850 Concourse Parkway South, Suite 105

Maitland, Florida 32751

STATEMENT OF THE ISSUE S

The issue s in the case are whether the allegations of the

Administrative Com plaint are correct , and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 23, 2004, the

Department of Business and Professional Regulation, Division of

Real Estate (Petitioner) , alleged that William J. Fla nagan, III

(Respondent) , was "guilty of having been convicted or found

guilty of, or entered a plea of nolo contendere to, regardless

of adjudication, a crime which directly relates to the

activities of a licensed real estate associate or that involves

mor al turpitude or fraudulent or dishonest dealing in violation

of Section 475.25(1)(f), Florida Statutes." Petitioner further

alleged that Respondent had failed to notify Petitioner within

30 days of the criminal case disposition, a violation of

S ubs ection 475.25(1)(p), Florida Statutes (200 4 ) . 1

Respondent disputed the allegations and requested a formal

administrative hearing. Petitioner forwarded the request for

hearing to the Division of Administrative Hearings, which

scheduled and conducted the proceedin g.

At the hearing, Petitioner had E xhibits numbered 1

through 5 admitted into evidence. Respondent presented the

testimony of two witnesses, testified on his own behalf, and had

one exhibit admitted into evidence.

The one - volume Transcript of the hearin g was filed on

June 10, 2005. Page three of the T ranscript incorrectly

identifies the exhibits admitted into the hearing record.

Pages 28 and 29 of the T ranscript contain typographical errors

that render parts of Respondent's testimony unintelligible.

The parties filed Proposed Recommended Orders on June 20,

2005. In rendering this Recommended Order, the undersigned has

relied on his recollection of Respondent's testimony to clarify

the erroneous transcription of the hearing.

FINDINGS OF FACT

1. At all times material to this case, Respondent was a

real estate sales associate, holding Florida license number

3055247. Respondent is currently employed in real estate sales.

2. On May 9, 2004, Respondent entered a plea of guilty to

a violation of S ubs ection 800.04(4)(b), Florida Statutes, and to

a violation of S ubs ection 847.0135(3), Florida Statutes, in Case

N o. 42 - 2003 - CF - 002535, Circuit Court, Fifth Judicial Circuit,

Marion County, Florida.

3. S ubs ection 800.04(4)(b), Florida Statutes, classifies

commission of sexual activity with a person under 16 years of

age as a second - degree felony.

4. S ubs ection 847.0135(3), Florida Statutes, classifies

knowingly using a computer service to solicit sexual activity

with a child as a third - degree felony.

5. Respondent entered the guilty pleas upon advice of

legal counsel and in order to avoid a public trial.

6. Respondent was ordered to pay a $500 fine and various

court costs, and to serve 100 hours of community service.

7. Although a sentence of one day in jail is noted in the

court documents, the same documents credit Respondent with one

day of incarceration, and according to Respondent, he spent no

time in jail.

8. Respondent was classified as a sex offender, subject to

the requirements applicabl e to the classification, and was

placed on probation for a period of seven years.

9. The court records note that Respondent's sentence was a

downward departure from sentencing guidelines. The c ourt

withheld an adjudication of guilt.

10. At the admin istrative hearing, Respondent provided the

only testimony directly related to the events that resulted in

the criminal charges.

11. At some point prior to 2004, Respondent joined a

computer dating service in order to meet people for social

activities and possible relationships. The dating service

charged a monthly fee of $20. Users could post personal

information and engage in online chats with other users.

12. In joining the service, Respondent was required to

attest to the fact that he was at least 18 years of age, and he

presumed that other persons utilizing the service would be

subject to the same requirement.

13. While using the online chat service, Respondent became

acquainted with another individual, and the two decided to meet.

Based on th e online discussion, Respondent believed that the

other individual was of college age.

14. Respondent drove to an unidentified location where he

met and picked up the individual. Respondent testified that the

person's appearance, including facial hair and the clothing

worn, gave no indication that the individual was not of legal

age. Respondent testified that he had "one date" with the

individual.

15. Several days after the meeting, Respondent was

contacted by an investigator from Marion County who advised him

that the individual was under the legal age of consent.

16. There was no reliable evidence offered at the hearing

as to the actual age of the other individual at the time the

events occurred.

17. Pursuant to the investigator's request, Re spondent met

with the investigator in Marion County, and was subsequently

charged with the cranial offenses referenced herein.

18. According to Respondent's probation officer, at the

time of the hearing Respondent was in compliance with and was

exceedin g the terms of his probation.

19. Respondent participates in mental health counseling

with a therapist who has 20 years of counseling experience,

including 18 years working with sex offenders. Respondent

participates in weekly group therapy and in indi vidual

counseling and was described as a cooperative client.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57(1), Fla . Stat .

21. Petitioner has the bur den of establishing the

allegations of the Administrative Complaint by clear and

convincing evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). Department of Banking and Finance v. Osborne Stern and

Company , 670 So. 2d 932 (Fla. 1996). Clear and convincing

evidence is that which is credible, precise, explicit , and

lacking confusion as to the facts in issue. The evidence must

be of such weight that it produces in the mind of the trier of

fact the firm belief of conviction, without hesitancy, as t o the

truth of the allegations. Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983).

22. The evidence establishes that Respondent entered a

guilty plea to a violation of S ubs ection 800.04(4)(b), Florida

Statutes, which provides in relevant par t as follows:

Lewd or lascivious offenses committed upon or

in the presence of persons less than 16 years

of age. --

* * *

(4) LEWD OR LASCIVIOUS BATTERY. -- A person

who:

* * *

(b) Encourages, forces, or entices any

person less than 16 years of a ge to engage in

sadomasochistic abuse, sexual bestiality,

prostitution, or any other act involving

sexual activity commits lewd or lascivious

battery, a felony of the second degree,

punishable as provided in s. 775.082, s.

775.083, or s. 775.084.

23. The evidence further establishes that Respondent

entered a guilty plea to a violation of S ubs ection 847.0135(3),

Florida Statutes, which provides as follows:

CERTAIN USES OF COMPUTER SERVICES

PROHIBITED. -- Any person who knowingly

utilizes a computer on - line s ervice, Internet

service, or local bulletin board service to

seduce, solicit, lure, or entice, or attempt

to seduce, solicit, lure, or entice, a child

or another person believed by the person to

be a child, to commit any illegal act

described in chapter 79 4, relating to sexual

battery; chapter 800, relating to lewdness

and indecent exposure; or chapter 827,

relating to child abuse, commits a felony of

the third degree, punishable as provided in

s. 775.082, s. 775.083, or s. 775.084.

( e mphasis supplied)

24 . Respondent's entry of guilty pleas to the charges

constitutes conviction. State v. Gazda , 257 So. 2d 242

(Fla. 1971). Also see Florida Rules of Criminal Procedure

Rule 3.701(d)(2), which defines "conviction " as "a determination

of guilt resulting from plea or trial, regardless of whether

adjudication was withheld or whether imposition of sentence was

suspended."

25. Section 475.25, Florida Statutes, in material part

provides as follows:

475.25 Discipline. --

(1) The commission may deny an application

for licensure, registration, or permit, or

renewal thereof; may place a licensee,

registrant, or permittee on probation; may

suspend a license, registration, or permit

for a period not exceeding 10 years; may

revoke a license, registration, or permit;

may impose an administrative fine not to

exceed $1,000 for each count or separate

offense; and may issue a reprimand, and any

or all of the foregoing, if it finds that the

licensee, registrant, permittee, or

applicant:

* * *

(f) Has been convicted or fo und guilty of,

or entered a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

activities of a licensed broker or sales

associate, 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.

* * *

(p) Has failed to inform the commission in

writing with in 30 days after pleading guilty

or nolo contendere to, or being convicted or

found guilty of, any felony. ( e mphasis

supplied)

26. As to w hether the convictions constitute a violation

of Subsection 475.25(1)(f), Florida Statutes, depends on whether

Resp ondent's actions demonstrate moral turpitude. 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. It has also been defined as anything done

contrary to jus tice, honesty, principle, or good morals, though

it often involves the question of intent, as when

unintentionally committed through error of judgment when wrong

was not contemplated . State ex rel. Tullidge v. Hollingsworth ,

146 So. 660 (1933).

27. At the hearing, Respondent testified that he had no

reason to know or believe that the individual with whom he

chatted and subsequently met was not of legal age. Respondent

joined an online dating service that required payment of a fee

and attestation that h e was at least 18 years old. It was

reasonable for him to presume that others using the service

would be required to do the same. T here is no evidence that any

aspect of the interaction between Respondent and the other

person should have caused Responden t to suspect or to know that

the other individual was not of legal age.

28. It should be noted that Respondent's ignorance or

mistake regarding the age of the other person was not available

as a defense in a criminal prosecution for lewd or lascivious

b attery. See § 800.04(4)(b), Fl a. Stat.

29. A s a general rule, a judgment of conviction, in and of

itself, is not conclusive proof of the facts upon which it is

based; however, an exception to that rule exists where a

judgment of conviction is based upo n a guilty plea. In that

instance, a defendant in a criminal prosecution is estopped from

denying his guilt in a subsequent civil proceeding. The

exception operates even in the absence of an adjudication of

guilt. Kelly v. Department of Health and Rehab ilitative

Services , 610 So. 2d 1375 (Fla. 2d DCA 1992).

30. Conviction of a crime does not automatically require

disciplinary action against a licensee. In Pearl v. Fla. Board

of Real Estate , 394 So. 2d 189 (Fla. 3rd DCA 1981), the Third

District Court of Appeal set forth principles to be considered

in an administrative proceeding where a licensee is charged with

committing a crime involving moral turpitude. The c ourt held

that the facts and circumstances surrounding the illicit conduct

must be taken i nto account and that the primary purpose of

Chapter 475 (protecting the public from unscrupulous and

dishonest real estate brokers) must be kept in mind.

Disciplinary statutes are penal in nature and must be strictly

interpreted against the authorization of discipline and in favor

of the person sought to be penalized. Munch v. Department of

Professional Regulation , 592 So. 2d 1136 (Fla. 1st DCA 1992).

S tatutes imposing a penalty must always be construed strictly in

favor of the one against whom the penal ty is imposed and are

never to be extended by construction. Hotel and Restaurant

Commission v. Sunny Seas No. One, Inc. , 104 So. 2d 570 ( Fla.

1958) .

31. The only explanation of the events that resulted in

the criminal charges against Respondent was tha t which was

provided through Respondent's testimony. There were no charging

documents offered into the record of the Administrative Hearing

and the factual allegations of the criminal charges were not

disclosed.

32. As to the violation of S ubs ection 84 7.0135(3), Florida

Statutes, Respondent entered a guilty plea to the charge of

"knowingly" using a computer service to solicit a child to

commit lewdness and indecent exposure. While Respondent's

testimony at the hearing was credible, Respondent is estopp ed as

a matter of law from asserting facts contrary to the guilty

plea. Conviction of a violation of S ubs ection 847.0135(3),

Florida Statutes, is an act of moral turpitude, and therefore,

the evidence establishes that Respondent is guilty of violating

S ub s ection 475.25(1)(f), Florida Statutes.

33. Although Respondent also entered a guilty plea to a

violation of S ubs ection 800.04(4)(b), Florida Statutes, the

defense being raised in the administrative proceeding (that of a

mistaken belief regarding the in dividual's age) was unavailable

in the criminal prosecution. As stated previously, Respondent's

testimony regarding the events leading to the criminal charges

is credited. The evidence fails to establish that Respondent

intended to violate S ubs ection 800 .04(4)(b), Florida Statutes.

34. Petitioner offered no evidence indicating that

Respondent has violated S ubs ection 475.25(1)(p), Florida

Statutes.

35. Florida Administrative Code Rule 61J2 - 24.001(3)(g)

sets forth a guideline for the imposition of dis ciplinary

penalties for being "[c]onvicted or found guilty of a crime

related to real estate or involves moral turpitude, or

fraudulent or dishonest dealing." The Rule provides as follows:

The usual action of the Commission shall be

to impose a penalty fr om a 7 year suspension

to revocation and an administrative fine of

$1,000.

36. Florida Administrative Code Rule 61J2 - 24.001(4)(b)

sets forth circumstances which may be considered by the

Commission in varying from the penalty guidelines, and provides

as f ollows:

Aggravating or mitigating circumstances may

include, but are not limited to, the

following:

1. The degree of harm to the consumer or

public.

2. The number of counts in the

Administrative Complaint.

3. The disciplinary history of the

licensee.

4. The status of the licensee at the time

the offense was committed.

5. The degree of financial hardship

incurred by a licensee as a result of the

imposition of a fine or suspension of the

license.

37. There is no evidence of harm to the consumers or to

the public. The allegations do not involve fraudulent or

dishonest activity, or a crime related to real estate. There is

no evidence that Respondent has any previous disciplinary or

criminal history. Lengthy revocation or suspension of

Respondent's lice nse would prevent him from continuing in his

current employment. The law proscribing sexual activity between

an adult and an underage person certainly reflects recognition

of the harm that can be visited upon a victim ; however, there

was no evidence prese nted by either party regarding the victim

in this case.

38. The fact that the sentence imposed by the criminal

court was greatly reduced from the statutorily available penalty

is of great significance. Section 775.082, Florida Statutes,

provides for a term of imprisonment of up to 15 years for

conviction of a second degree felony and up to 5 years for

conviction of a third degree felony. Section 775.083, Florida

Statutes, provides for imposition of a fine up to $10,000 for

conviction of a second - degree felony and up to $5,000 for

conviction of a third - degree felony. Based on the charges to

which he pled, Respondent could have been sentenced to a 20 - year

incarceration and a $15,000 fine. It is presumed that the Judge

who presided over the criminal case was fully advised as to the

charges and the evidence prior to the sentencing, and

essentially determined that a $500 fine and one day of

incarceration were appropriate.

39. Finally, during the testimony of Respondent's

therapist, she twice mentioned th e results of a polygraph test

administered to Respondent. There is no evidence that the

therapist administered the polygraph test, and her testimony on

this point was hearsay. No other polygraph evidence was offered

at the hearing. Hearsay evidence may be used for the purpose of

supplementing or explaining other evidence, but it is not

sufficient in itself to support a finding unless it would be

admissible over objection in civil actions. § 120.57(1)(c),

Fla . Stat.

40. Aside from the hearsay issue, p olygraph evidence is

not admissible in a court of law, absent a stipulation by the

parties. DeLap v. State , 440 So. 2d 1242 (Fla. 1983); Sullivan

v. State , 303 So. 2d 632 (Fla. 1974). In this case, there was

no affirmative stipulation by the parties as t o the

admissibility of the information, although there was also no

objection by either party to the testimony.

41. The admissibility of polygraph evidence in an

administrative proceeding was at issue in Lieberman v. Dept. of

Prof. Reg. , 573 So. 2d 349 ( Fla. 5th DCA 1990). In Lieberman , a

hearing officer admitted polygraph evidence over an objection

from counsel, and then denied a motion to strike it from the

record. The court held that the evidence was inadmissible, and

that under those circumstances i t was reversible error for the

hearing officer to admit the results of a polygraph examination.

42. In this case, neither party solicited testimony

directly about a polygraph examination; the witness volunteered

the information. Neither party objected to the testimony.

Neither party questioned the witness about her reference to

polygraph testing. Neither party asked the undersigned to make

any determination regarding the admissibility of the testimony

during the hearing.

43. In preparing this Recom mended Order the therapist's

testimony has been disregarded in its entirety, other than to

confirm that Respondent participates in counseling, and it was

not considered in rendering the Findings of Fact set forth

herein. The determination of Respondent's credibility in this

case was based solely on the uncontroverted testimony he

provided during the hearing. Respondent's explanation of the

requirements to join the dating service, and his belief that

others using the service would meet the same requirement s, was

consistent and logical.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter a f inal o rder reprimanding

Respondent William J. Flanagan, III.

DONE AND ENTER ED this 6 th day of Jul y , 2005 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 96 75 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of July , 2005 .

ENDNOTE

1 / All references to the Florida Statutes are to the 200 4

version unless otherwise indicated.

COPIES FURNISHED :

Alfonso Santana, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801 - 1757

Robyn Severs Braun, Esquire

Taylor & Carls, P.A.

850 Concourse Parkway South, S uite 105

Maitland, Florida 32751

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Elizabeth Vieira , Director

Division of Real Estate

Departm ent of Business and

Professional Regulation

400 West Robinson Street, Suite 802 North

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommende d Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.