86-004016 Charles E. Hillyer vs. Department Of Banking And Finance Status: Closed Recommended Order on Tuesday, February 3, 1987.

Summary: Applicant convicted of crime of moral turpitude may demonstrate rehabilitation by good works, lawful conduct, being self supporing, good association and time

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES E. HILLYER , )

)

Petitioner , )

)

vs. ) CASE NO. 86-4016

)

OFFICE OF COMPTROLLER , )

)

Respondent. )

____________________________)

RECOMMENDED ORDER

A formal hearing was conducted on November 17, 1986 in Hearing Room 2B,

Oakland Building, Tallahassee, Florida, by Stephen F. Dean assigned Hearing

Officer of the Division of Administrative Hearings. This case arose upon denial

of Petitioner's application of licensure as a mortgage solicitor because he

lacked good character by virtue of his conviction of a felony.

APPEARANCES

For Petitioner : S. Gordon Blalock, Esquire

BLALOCK, HOLBROOK & AKEL, P.A.

2301 Independent Square

Jacksonville, Florida 32202

For Respondent : Miles Gopman, Esquire

Department of Banking and Finance

Office of the Comptroller

Suite 1302, The Capitol

Tallahassee, Florida 32399-0350

ISSUE

Whether Petitioner is qualified for licensure; specifically does he possess

the good character necessary in light of his conviction of a felony .

STIPULATION

The parties stipulated and agreed at the commencement of the hearing:

A. Documents attached to Applicant's Brief as Appendix A-1 through A-11

are received into evidence as applicant's composite Exhibit 1.

B. But for his conviction of a crime involving moral turpitude, the

Petitioner is otherwise qualified for licensure as a mortgage solicitor.

FINDINGS OF FACT

1. On May 27, 1986, the Petitioner, Charles E. Hillyer, III, made

application under the provisions of Chapter 494, Florida Statutes, for license

to engage in the business of mortgage solicitor (A-1). The application stated

the fact of the applicant's conviction of a crime in the Federal Court , Middle

District of Florida, in September 1983 based upon his plea of guilty to:

" knowingly, willfully and intentionally

distributing a quantity of cocaine, a

Schedule II controlled substance, in

violation of Title 21, US Code Section

841(a)(1)."

2. Petitioner had been using cocaine for some time and under the stress of

a divorce began using more cocaine. He sold two undercover police officers 27.6

grams of cocaine as part of a scheme to pay for his own drug use in early 1982.

This conduct reflects adversely on the Petitioner's character and is a crime of

moral turpitude.

3. The Petitioner did plead guilty to the offense described in paragraph 1

above, a felony under the Federal law, and the Court, having found the

Petitioner guilty, ordered applicant to serve three years in prison, pay a fine

of $3,000 and serve a special parole term of three (3) years in an order dated

September 29, 1983. Conviction of any felony constitutes an act reflecting

adversely on one's moral turpitude and good character.

4. In its notification of denial (A-2), the Agency stated that Petitioner

did not have "the honesty, truthfulness, and integrity required for licensure

pursuant to Section 494.04, Florida Statutes."

5. The Petitioner meets all qualifications for licensure as mortgage

solicitor except for the fact that he was, in 1983, convicted of a crime

involving moral turpitude.

6. The Petitioner was released from federal prison at Eglin in August

1984, and was assigned to a halfway house in Jacksonville, Florida, remaining

under supervision until December 21, 1984, when he secured employment with Jack

Bush Toyota South, Jacksonville, Florida, in September 1984 as an auto salesman.

He was then employed with Lawyers Title Insurance Corporation in Jacksonville,

Florida in February 1985 as an account executive. He continued this employment

after work release and up until June 16, 1986 when the applicant commenced

employment as an account executive with Shearson Lehman Mortgage Corporation,

Jacksonville, Florida. The Petitioner has performed no acts which would

constitute practice without a license but has an offer of promotion to the

position of mortgage solicitor if he can be licensed.

7. On August 21, 1986, Petitioner was notified by the Agency that his

application for licensure as a mortgage solicitor was denied (A-2). Following

receipt of the notice of denial the Petitioner filed a request for a hearing (A-

3), and said request was granted pursuant to the Agency's letter of October 8,

1986 (A-4).

8. Petitioner has taken the required test for the license of mortgage

solicitor and received a passing grade of 90.

9. Petitioner is married and has one child by his current wife. He has

two children by a previous marriage to which he has regularly contributed

support as required since his divorce except for the period when he was

imprisoned. He is providing a stable home for his family, contributes regularly

to the support of his children by his previous marriage, and leads a lawful,

productive life.

10. Petitioner is active in community affairs, his church, and has obeyed

all conditions of his probation and parole. He is active with the Jacksonville

Board of Realtors and on both the education and communication committees; member

of the South Council, Jacksonville Chamber of Commerce; President, Cypress

Landing Association (Condo); Treasurer, Full Gospel Business Men's Club; Member,

Servants of Christ Episcopal Church; and Loan Officer with Shearson Lehman

Mortgage Corporation. The Petitioner enjoys an excellent reputation in his

community and is considered honest and trustworthy.

11. In September 1986 Petitioner completed regular parole and began the

special period of parole and probation. He is now eligible for early

termination of the special parole but has not yet instituted proceedings to

obtain early termination of parole.

12. The Petitioner admitted the serious nature of his offense. It appears

his life had been changed by his punishment, and he is determined to lead an

honest and upright life.

13. The principal cause of concern in the Agency is whether sufficient

time has elapsed since Petitioner's conviction and sentence to determine whether

Petitioner has been rehabilitated.

CONCLUSIONS OF LAW

14. This order is entered pursuant to Chapter 120, Florida Statutes. The

Agency licenses mortgage solicitors pursuant to Chapter 494, Florida Statutes.

Applicants may be denied if the applicant has been guilty of any of the actions

outlined in Section 494.05(1), Florida Statutes. See Subsection 494.05(4),

Florida Statutes. Section 494.05(1)(d), Florida Statutes, specifically

provides:

"(1)(d) A crime against the laws of this

state or any other state or of the United

Stated, involving moral turpitude or

fraudulent or dishonest dealing, or if a

final judgment has been entered against him

in a civil action upon grounds of fraud,

misrepresentation, or deceit."

15. An applicant who has been convicted of a crime involving moral

turpitude may demonstrate his/her rehabilitation to qualify for licensure. The

burden of showing such rehabilitation is on the applicant and generally is

demonstrated by good works, living in accordance with the law, being self

supporting, associating with people of good character and the passage of time.

16. In the instant case, all of these conditions exist except the passage

of time. However, the evidence indicates that the Petitioner has already

finished his basic probation and that his conduct is exemplary. Under these

circumstances, less time should be required in the Petitioner's case to

establish within a reasonable certainty his rehabilitation. The Petitioner's

special probation also is a problem because while it exists, a question remains

as to the sentencing court's assessment of the Petitioner's rehabilitation. The

Petitioner has failed to show that he has been rehabilitated sufficiently and

long enough to show the requisite degree of good character for licensure. After

his release from special probation and with the passage of more time, he will

have more data to support his application.

RECOMMENDATION

Based upon the foregoing, the Hearing Officer RECOMMENDS that the

application of Charles E Hillyer, III be denied.

DONE and ORDERED this 3rd day of February, 1987, in Tallahassee, Florida.

___________________________________

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

904/488-9675

FILED with the Clerk of the

Division of Administrative Hearings

this 3rd day of February 1987.

APPENDIX

The Petitioner and Respondent were both permitted to file post hearing

briefs and the Respondent was given the opportunity to file late filed exhibits.

The Petitioner objected to the Respondent's late filed exhibits. The

Petitioner's objections are well founded and the late filed exhibits are not

received into the record, and are stricken.

The Respondent did not file proposed findings. The Petitioner did file

proposed findings of fact which were adopted with some alterations in

organization and small changes in wording with the exception of the fact that

Petitioner had established his rehabilitation.

COPIES FURNISHED:

S. GORDON BLALOCK, ESQUIRE

BLALOCK, HOLBROOK & AKEL, P.A.

2301 INDEPENDENT SQUARE

JACKSONVILLE, FLORIDA 32202

MILES GOPMAN, ESQUIRE

DEPARTMENT OF BANKING AND FINANCE

OFFICE OF THE COMPTROLLER

SUITE 1302, THE CAPITOL

TALLAHASSEE, FLORIDA 32399-0350

HONORABLE GERALD LEWIS, COMPTROLLER

DEPARTMENT OF BANKING AND FINANCE

THE CAPITOL

TALLAHASSEE, FLORIDA 32301

CHARLES STUTTS, ESQUIRE

GENERAL COUNSEL

DEPARTMENT OF BANKING AND FINANCE

THE CAPITOL, PLAZA LEVEL

TALLAHASSEE, FLORIDA 32301