05-001137 Michael Joseph Sikorski vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Thursday, August 25, 2005.

Summary: Petitioner is entitled to a broker`s license because a misdemeanor involving moral turpitude was not rationally connected to fitness to engage in the real estate business, and Petitioner has been rehabilitated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL JOSEPH SIKORSKI, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1137

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

REC OMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on June 28, 2005, by video

teleconference between Fort Myers and Tallahassee, Florida, on

behalf of the Division of Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A.

419 West Vine Street

Kissimmee, Florida 34741

For Respondent: Barbara Rockhill Edwards, Esquire

Department of Legal Affairs

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue presented is whether Respondent should deny an

application fo r 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 reha bilitated.

PRELIMINARY STATEMENT

By a Notice of Denial issued on December 1, 2004,

Respondent notified Petitioner that Respondent proposed to deny

Petitioner's application for a real estate broker's license.

Petitioner timely requested a formal hearing, and Respondent

referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner testified, presented the

testimony of one character witness, and submitted no exhibits

for admission into evidence. Respondent presented the testimony

of one wi tness and submitted two exhibits for admission into

evidence. The identity of the witnesses and exhibits and the

rulings regarding each are reported in the Transcript of the

hearing filed with DOAH on July 8, 2004.

The ALJ granted Respondent's unopposed r equest to extend

the deadline for filing proposed recommended orders (PROs) .

Petitioner and Respondent timely filed their respective PROs on

July 27 and 26, 2005.

FINDINGS OF FACT

1. Respondent is the state agency responsible for

licensing real estate b rokers and sales persons in the State of

Florida, pursuant to Cha pter 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 s ince September 1, 1993.

2. On June 25, 2004, Petitioner applied for a license as a

real estate broker. On December 1, 2004, Respondent issued a

Notice of Denial.

3. The Notice of Denial proposes to deny the license

application on s pecific ground s . Th e 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

associ ate, 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:

1. Contributing To The Delinquency of

A Minor, 2 001

4. During the hearing, Responden t 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

sal es associate or to fraud ulent or dishonest dealing.

Respondent re lies 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

5. 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.

6. The court adjudicated Petitioner g uilty and withheld

sentencing. Petitioner paid $353 i n costs, served 75 hours of

community service, and successfully completed probation of 12

months .

7. The Notic e 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

8 . It is legally unnecessary to determine whether

Petitione r is guilty of the crime to which he ple d 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 whi ch he pled nolo contendere . 3

9 . No finding is made in this proceed ing 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 adjudicat ed solici tation.

10 . The threshold factual issue in this proceeding is

whether the adjudicated solicitation involved moral turpitude .

I f so, it must be determined whether there is a rational

connection between the moral turpitude and Petitioner's fitness

to engag e 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."

11 . The adjudicated s olicitation involved an act of moral

turpitude. S olicitation of a 13 - year - old female to pose topless

or nude wa s a substantial deviation from the standard of conduct

acceptable in the community , violated the duties owed to

society , and was an inherently base or deprave d act . 4

12 . The base or depraved nature of the a djudicated

solicitation did not arise from a des ire 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 deprav ed nature of

the adjudicated solicitation arose from an attempt to coerce the

i nvoluntary compliance of a minor female by exploiting her

v ulnerability; exploiting a financial relationship over which

Petitioner enjoyed fi nancial control ; and exploiting a qu asi -

familial relationship in which Peti tioner 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 di sregard of that risk was a gross deviation from an

appropriate standard of conduct.

13 . At age 13, the minor female was nowhere near the 18

years of age required for legal majority. Tha t vulnerability

was accentuated during the adjudicated solicitation by

Petitioner's age of 38.

14 . The minor female was also financially dependent on

Petitioner for income as the family babysitter. Peti tioner

enjoyed the advantage of financial control of that relationship

and possessed the power t o terminate the relat ionship .

15 . Petiti oner also enjoyed the benefit of an authority

figure in a quasi - fa milial 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 n ever married the mother of the minor female. The minor

female is also a long - time friend of Petitioner's daughter.

16 . The re is no direct evidence of actual inten t to

exploit the vulnerability of the minor f emale and any existing

relationship. However, Petitioner should have known that the

minor female was in a position of vulnerability and that the

adjudicated solicitation nece ssarily exploited her vulnerability

and the advantages he enjoyed in their relationship .

17 . A person of common understandin g 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 conduc t . 7

18 . 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 th e adjudicated solicitat ion i s not

related to the activities of a licensed broker or sales

associate and does not involve fraudulent or dishonest dealing.

19 . It is undisputed that the adjudicated solicitation

did not impugn Petitioner's fitness to engage in the real estate

bus iness . 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 adjudicate d

solicitation .

20 . Petitioner disclosed the adjudicated solicitation to

Resp ondent 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 Petitio ner 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 dep osits to third parties ,

including surveyors and credit reporting agencies.

21 . 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 discrimina tory denial of the license application. 8 The

potential for selective enforcement should be avoided.

22 . The issue of whether Petitioner has been rehabilitated

is moot in the absence of a rational connection between an act

of m oral turpitude and the fitne ss 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

23 . P etitioner paid the required court costs , served the

commun ity 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 exhib ited 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 .

24 . 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 .

CONCLUSIONS OF LAW

25 . DOAH has jurisdiction over the parties and subject

matter of this proceeding. §§ 120 .569 and 120.57(1), Fla. Stat.

(2002). DOAH provided the parties with adequate notice of the

administrative hearing.

26 . Petitioner bears the ultimate burden of proving

entitlement to a license. Florida Department of Transportation

v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Petitioner must show by a preponderance of the evidence that he

satisfied relevant statutory criteria for the license.

27 . It is legally unnecessary to determine in this

proceeding whether Petitioner actually committe d the crime for

which the court adjudicated him guilty. In relevant part, the

applicable statute authorizes Respondent to deny a license

application if the applicant :

Has been convicted or found guilty of , or

entered a plea of nolo contendere to,

regardl ess of adjudication , a crime in any

jurisdiction which . . . involves moral

turpitude . . . . 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.

§ 475.25(1)(f), Fla. Stat. (2003).

28 . The last sentence in the applicable statute appears to

be a vestige that is logically connected to previous versions of

the statute rather than to the current version. Previous

versions o f the applicable statute authorized Respondent to deny

a license application if the applicant :

Has been convicted or found guilty,

reg ardless of adjudication , of a crime in

any jurisdiction which . . . involves moral

turpitude . . . . Any plea of nolo

con tendere shall be considered a conviction

for purposes of this paragraph . The record

of a conviction certified or authenticated

in such form as to be admissible in evidence

under the laws of the state shall be

admissible as prima facie evidence of such

gui lt. (emphasis supplied)

§ 475.25(1)(f), Fla. Stat. (1983).

29 . The underscored language in the previous version of

the applicable statute impermissibly conver ted a plea into a

conviction and was judicially construed as creating a rebuttable

p resumptio n of guilt. A substantially affected party was

entitled by judicial construction to prove in an administrative

proceeding that the party was not guilty of the crime to which

the party pled nolo contendere in the criminal proceeding. Son

v. Florida Depart ment of Professional Regulation, Division of

Real Estate , 608 So . 2d 75, 76 (Fla. 3d DCA 1992). See also

Ayala v. Department of Professional Regulation , 478 So. 2d 116,

1117 (Fla. 1st DCA 1985)(involving similar statutory language in

former § 458.331(1)(c ), Fla. Stat. (1983)).

30 . Subsequent to the decisions in Son and Ayala , the

legislature amended the applicable statute by deleting the

statutory requirement to treat a plea of nolo contendere as a

conviction. The current version of th e applicable statut e

conforms to substantially similar statutory language that does

not require pr oof of guilt. In upholding substantially similar

statutory language, the First District Court of Appeal held:

A plea of nolo contendere or guilty is not

evaluated under [the statute] as conclusive

evidence of the commission of a wrongdoing.

Instead, entry of the plea itself creates

noncompliance with [the statute]. . . .

This statutory scheme is distinguishable

from that in Ayala v. Department of

Professional Regulation , 478 So. 2d 11 6

(Fla. 1st DCA 1985), in which mandatory

interpretation of [the statute], providing

that a nolo plea "shall be considered a

conviction," did impermissibly convert the

plea into a conviction.

McNair v. Criminal Justice Standards and Training Com mission ,

518 So. 2d 390 , 391 (Fla. 1st DCA 1987). 10

31 . It is undisputed that Petitioner pled nolo contendere

to a misdemeanor and that the court adjudicated Petitioner

guilty of th e misdemeanor . A crime need not be a felony to

involve an act of moral turpitu de . The term "crime" is not

defined by applicable statute or rule. The plain and ordinary

meaning of the term includes a misdeme anor. The legislature and

courts have determined that a misdemeanor may involve moral

turpitude. See , e.g. , Amendmen t to the Rules Regulating The

Florida Bar , 875 So. 2d 448, 479 (Fla. 2004)( petitions for

rein statement, in relevant part, must specify whether suspension

was based on a misdemeanor involving moral turpitude); Cirnigliaro

v. Florida Police Standards and Tra ining Commission , 409 So. 2d 80

(Fla. 1st DCA 1982)(misdeme anor involving moral turpitude i s one

of several qualifications for certification); Pfeiffer v. Police

Standards and Training Commission , 360 So. 2d 1326, 1327 (Fla. 1st

DCA 1978)( disorderly conduc t does not involve moral turpitude);

3 2 . Neither party cited a statute or rule that defines moral

turpitude. Courts generall y define moral turpitude to involve :

. . . inherent baseness or depravity in the

private social relations or duties owed by

man t o 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, 611,

146 So. 660, 661 ( Fla. 1933) .

33 . Mo re than one court has struggled to defin e moral

turpitude. In reversing the license suspension of a real estate

broker for moral tu rpitude, a concurring opinion describes the

inherently amorphous nature of moral turpitude:

While I agree with [ the] majority opinion in

this case, I am concerned that its rationale

may lead to capricious results in other

cases. The majority opinion concludes that

setting off a smoke bomb as a political

protest over actions of the St. Johns River

Water Management D istrict is not a crime that

involves moral turpitude. . . . However, we

cannot define what kind of acts in this

context constitute moral turpitude. In

another case, we may "know it" when we see

it, and still be unable to articulate the

rationale. . . .

The federal district court in Corporation of

Haverford College v. Reeher , 329 F. Supp.

1196 (E.D.Pa. 1971) invalidated a statute

which authorized the denial of student aid to

anyone convicted of a "misdemeanor involving

moral turpitude." . . . The court noted

that:

[I]f we go to the dictionaries, the

last resort of the baffled judge, we

learn little except that the expression

is redundant, for turpitude alone means

moral wickedness or depravity and moral

turpitude seems to mean little more

than morally immoral.

329 F. Supp. at 1205.

The federal court further observed that a

large of number of cases upholding such

language in other contexts reach capricious

results. It agreed with the dissenting

judges in Jordan v. DeGeorge , 341 U.S. 223,

71 S. Ct. 703 , 95 L. Ed. 886 (1951):

It (the debate over the morality of

some crimes) shows on what treacherous

grounds we tread when we undertake to

translate ethical concepts into legal

ones, case by case. We usually end up

condemning all that we personally

disappr ove and for no better reason

than we disapprove it.

Nelson v. Department of Business and Professional Regulation , 707

So. 2d 378, 379 - 380 (Fla. 5th DCA 1998).

34 . Standards of conduct such as moral turpitude and the

lack of good moral character are i nherently ambiguous. The

Florida Supreme C ourt has acknowledged that the term "good moral

character , " by itself, is unusually ambiguous.

It can be defined in an almost unlimited

number of ways for any definition will

necessarily reflect the attitudes,

exp eriences, and prejudices of the definer.

Such a vague qualification, which is easily

adapted to fit personal views and

predilections, can be a dangerous instrument

for arbitrary and discriminatory [agency

action]. Konigsberg v. State Bar of

California , 3 53 U.S. 252, 262 - 263, 77 S. Ct.

722, 728, 1 L. Ed. 2d 810 (1957).

Florida Board of Bar Examiners . In re Eimers , 358 So. 2d 7, 9

(Fla. 1978).

35. The "lack of good moral character" and "moral turpitude"

have emerged from various judicial decisions with d ifferent

meanings. The Florida Supreme Court has suggested that moral

turpitude is narrower in scope and restricted to fewer types of

conduct than is the lack of good moral character.

In our view, a finding of a lack of "good

moral character" should not be restricted to

those acts that reflect moral turpitude. A

more appropriate definition of the phrase

requires a n inclusion of acts and conduct

which would cause a reasonable man to have

substantial doubts about an individual's

honesty, fairness, and res pect for the rights

of others and for the laws of the state and

nation.

Florida Board of Bar Examiners Re: G.W.L. , 364 So. 2d 454, 458

(Fla. 1978).

36 . It is unnecessary to determine whether the adjudicated

solicitation in 2001 satisfied the broader de finition of

immorality. I mmorality is not a ground for denial of the license

application. The relevant issue is whether the adjudicated

solicitation satisfies the narrow er definition of moral tur pitude.

37. An allegation of m oral turpitude may deprive a regulated

party of adequate notice of prohibited activities .

I submit that our population has become

sufficiently diverse that the term "moral

turpitude" no longer carries a sufficient

warning to indicate what activities are

proscribed. Further, what i s contrary to

morals has changed over time, and can vary

from community to community. In my view, the

Legislature should spell out which categories

of crimes warrant imposition of sanctions

against a broker or salesperson.

Nelson , 707 So. 2d at 380.

38 . Notwithstanding the dearth of i ntelligi ble standards to

define moral turpitude , the applicable statute requires a finding

of whether the adjudicated solicitation invo lved an act of moral

turpitude. The issue of whether the adjudicated solicitation

devia ted from a standard of conduct is not infused with agency

e xpertise , but is the province of the trier of fact. See

Palamara v. State, Department of Professional Regulation , 855

So. 2d 706 (Fla. 4th DCA 2003); Bush v. Brogan , 725 So. 2d 1237,

1239 - 1240 (Fl a. 2d DCA 1999); Dunham v. Highlands County School

Board , 652 So. 2d 894, 896 (Fla. 2d DCA 1995) ; Albert v. Florida

Department of Law Enforcement, Criminal Justice Standards and

Training Commission , 573 So. 2d 187 (Fla. 3d DCA 1991) .

39 . Three general sta ndards for identifying moral turpitude

have emerged from a review of relevant judicial decisions. The

first test is whether culpable intent i s an element of the crime .

See Hollingsworth , 146 So. at 661 (moral turpitude often involves

the question of inte nt " as when unintentionally committed through

error of judgment when wrong was not contemplated " ) .

40. The adjudicated solicitation evidences culpable intent.

Although there is no direct evidence of such intent, the requisite

intent may be inferred from c ulpable knowledge or culpable

negligence. See , e.g ., Antel v. Department of Professional

Regulation, Florida Real Estate Commission , 522 So. 2d 1056 (Fla.

5th DCA 198 8)( manslaughter involves moral turpitude even though

premeditation is not an element of t he crime); Kiner v. State

Board of Education , 344 So. 2d 656 (Fla. 1977)(upholding license

denial on ground that manslaughter is crime of moral turpitude).

41. Culpable knowl edge is essential to the crime of

contributing to the delinquency of a minor. Ho wever, the

requisite knowledge may be proved by circumstantial evidence.

[T] he acts proscribed by the law must be

performed under such circumstances that a

person of common understanding would know

that they would cause or tend to cause or

encourage or con tribute to the delinquency

. . . of a person under the age of eighteen

years.

In this context, "knowledge" means that there

was a substantial and unjustifiable risk that

the acts engaged in would . . . encourage

delinquency. The risk must be of such a

n ature and degree that its disregard

constitutes a gross deviation from the

standard of conduct that a law - abiding person

would observe in the actor's situation.

State v. Shamrani , 370 So. 2d 1, 2 n.3 (Fla. 1979). Accord Kito

v. State , 888 So. 2d 114, 116 (Fla. 4th DCA 2004).

42 . The second discernable test for identifying moral

turpitude is whether the crime i s motivated by a desire for

monetary gain that evidences d ishonesty, fraud, or the intent to

exploit others for financial gain . Compare Milliken v . Department

of Business and Professional Regulation , 709 So. 2d 595 (Fla. 5th

DCA 1998)(possessing cocaine with intent to sell is a crime of

moral turpitude) ; Cirnigliaro , 409 So. 2d at 80 (embezzling less

than $100 is a misdemeanor involving moral turpit ude) ; Bruner v.

Board of Real Estate, Department of Professional Regulation , 399

So. 2d 4 (Fla. 5th DCA 1981)(grand theft is a crime of moral

turpitude) ; and Carp v. Florida Real Estate Commission , 211 So. 2d

240 (Fla. 3d DCA 1968)(bookmaking is a crime of moral turpitude)

with Pearl v. Florida Board of Real Estate , 394 So. 2d 189 (Fla.

3d DCA 1981)( mere possession of controlled substances does not

involve moral turpitude) and Everett v. Mann , 113 So. 2d 758 (Fla.

2d DCA 1959)(possession of lottery tickets does not involve moral

turpitude). See also Florida Bar v. Davis , 361 So. 2d 159, 162

(Fla. 1978)(issuance of worthless checks, unlike larceny, theft,

and other reprehensible offenses, does not involve moral

turpitude ). For reasons stated in the Findings of Fact, the

adjudicated solicitation was not motivated by a desire for

monetary gain such that it evidenced dishonesty or the intent to

exploit others for financial gain . 11

43 . The third discernable test for identif ying moral

turpitude involves the exp loit ation of a vulnerable person or

relationship for personal gratification . For example, t he Florida

Supreme Court has upheld the disbarment of an attorney who

attempted to coerce an unwilling client into sexual conduct in

exchange for reduced legal fees . The C ourt explained that the

attempt ed sexual coercion of a vulnerable, unwilling cli ent in

exchange for a reduction in legal fees was more severe than

conduct in a previous case in which the court upheld a finding of

moral turpitude. Compare The Flori da Bar v. Scott , 810 So. 2d

893, 900 (Fla. 2002)( solicitation of oral sex in exchange for

reduced legal fee) with The Florida Bar v. McHenry , 605 So. 2d

459, 460 - 461 (Fla. 1992)(improperly touching female client to

become familiar with the pr ecise nature o f her injury involves

moral turpitude) . See also The Florida Bar v. Senton , 882 So. 2d

997, 1003 (Fla. 2004)(engaging in se xual conduct with a client

exploited the lawyer - client relationship).

44 . The adjudicated solicitation by Petitioner evidenced

som e elements of exploitation proscribed in the attorney

disbarment cases discussed in the preceding paragraph.

Significantly, however, the adjudicated solicitation did not

involve other elements that are essential for a rational

connection to exist between moral turpitude and the fitness to

engage in the real estate business .

45 . The adjudicated solicitation did not exploit a real

estate client and did not exploit the relationship of realtor and

client. The adjudicated solicitation did no t adverse ly affect

Petitioner's fitness to engage in the real estate business.

Without the required nexus, the term moral turpitude creates a

dangerous potential for arbitrary and discriminatory denial of a

license application. Cf . G.W.L. , 364 So. 2d at 458 - 459 (evidence

of lack of good moral character must have rational connect ion to

fitness to practice law) and Eimers , 358 So. 2d at 10 (nexus must

be shown between stated homosexual orientation and lack of fitness

to practice law).

46. Assuming arguendo that a rational connection exists

between the adjudicated solicitation and Petitioner's fitness to

engage in the real estate business, Petitioner has been

rehabilitated . In addition to other reasons stated in the

Findings of Fact and not repeated here , the adjudicated

so licitation was an isolated incident rather than part of a

pattern and practice of such conduct. Cf . The Florida Bar v.

Williams , 753 So. 2d 1258 , 1262 (Fla. 2000)( licensing body should

deal more severely with cumulative misconduct than isolated

misconduct ).

47. The issuance of a broker's license in this proceeding

does not frustrate legislative intent. The intent underlying the

applicable statute:

. . . is to insure the protection of the

public from unscrupulous and dishonest real

estate brokers. Its purpose is to guard

against fraudulent real estate practices

. . . . The potential for selective

enforcement should be avoided.

Pearl , 394 So. 2d at 192.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMM ENDED that Respondent enter a f i nal o rder granting

the license application .

DONE AND ENTER ED this 25 th day of August , 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Admin istrative 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 2 5 th day of August , 2005.

1/ Transcript at pages 44 - 45.

2/ The last sentence in Subsection 475.25(1)(f), Fl orida

Stat utes (2003), states that the court record of conviction is

prima facie evidence of guilt. However, the statutory language

preceding the last sen tence 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 form er 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 Petit ioner 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), Fl orida Stat utes (2003).

3/ Cf . McNair v. Crim inal 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 profe ssional 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

S o. 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 dang erous 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 t hat 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 Cent re

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order s hould be filed with the agency that

will issue the Final Order in this case.