89-005858 Florida Real Estate Commission vs. David Rosenberg Status: Closed Recommended Order on Monday, May 7, 1990.

Summary: Respondent's intent to distribute pornography involving children is crime of moral turpitude. Revoke license even though respondent is in therapy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

vs. ) CASE NO. 89-5858

)

DAVID ROSENBERG, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the

above-styled case on April 5, 1990, in Cape Coral, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional

Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32801

For Respondent: Peter L. Rosenberg

Qualified Representative

1224 Southeast 23rd Place

Cape Coral, Florida 33990

STATEMENT OF THE ISSUES

Whether the Respondent's real estate license in Florida should be

disciplined as a result of his criminal conviction of crimes involving moral

turpitude in violation of Section 475.25(1)(f), Florida Statutes.

PRELIMINARY STATEMENT

The Department of Professional Regulation (the Department) filed an

Administrative Complaint before the Florida Real Estate Commission alleging that

Respondent, David Rosenberg (Rosenberg), violated the real estate licensing laws

when he entered guilty pleas to eleven counts of felonies and misdemeanors

related to the possession of pornography. The Department alleged that the

guilty pleas are considered as convictions for purposes of the licensing

statutes. As a result, it is alleged that Respondent is guilty of crimes

involving moral turpitude in violation of Section 475.25(1)(f), Florida

Statutes.

In an Election of Rights Form signed October 9, 1989, Respondent Rosenberg

disputed the allegations of fact contained in the Administrative Complaint and

requested a formal hearing.

Prior to hearing, the Hearing Officer determined that Peter L. Rosenberg

could act as a qualified representative on behalf of Respondent Rosenberg. At

hearing, the Department filed four exhibits and rested its case. The Respondent

testified in his own behalf and moved fourteen exhibits into evidence. All of

the exhibits were received by the Hearing Officer.

A transcript of the proceedings was not ordered. Proposed findings of fact

were timely submitted by the Department on April 16, 1990. Respondent's Exhibit

1 contains the proposed findings filed on behalf of the Respondent. Rulings on

the proposed findings are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. At all times material to these proceedings, Respondent Rosenberg has

been licensed as a real estate broker in Florida, and has held license number

0308769. The last license issued was as a broker and was sent in care of

Monopoly Realty, Inc., 944 Country Club Boulevard, Cape Coral, Florida.

2. On April 7, 1989, the Respondent entered guilty pleas to the eleven

criminal charges set forth in an Information filed in Case No. 89-3310-CF10,

Brevard County, Florida. Counts I-IV of the Information charged the Respondent

with the crimes of unlawful and knowing possession of four different motion

pictures containing sexual conduct by children. Counts V-XI of the Information

charged the Respondent with possession of seven additional motion pictures or

videotapes containing obscene materials. It was alleged that the Respondent

intended to sell, show or distribute these videotapes.

3. Upon acceptance of the pleas, the judge found the Respondent guilty of

Counts V-VII and withheld adjudication on all other counts. The Respondent was

sentenced to two years of community control followed by three years probation on

Counts I-IV. In addition, he received six months probation to run concurrently

with the first sentence on all other counts. Other conditions of the community

control portion of the sentence required the Respondent to pay $774.50 in

investigative costs to the Organized Crime Division, continue in sexual therapy,

and required that he not accept employment in video stores or any establishment

where adult magazines or videos are sold.

4. After his pleas were accepted by the Court, the Respondent notified the

Florida Real Estate Commission of the court's judgment and sentence by letter on

May 3, 1989.

Mitigation

5. In mitigation, the Hearing Officer finds that the Respondent has never

had a complaint filed against him during the eleven years he has been licensed

and actively engaged in the sale of real estate in Florida.

6. The Respondent realizes that his interest in pornography is prurient,

and he is sincerely involved in the sexual therapeutic program.

7. The Respondent has a supportive family which is anxious to assist him

in overcoming his problem.

8. The charges filed against the Respondent in the Information were based

upon one criminal episode which involved eleven pornographic films or tapes.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

10. Section 475.25(1)(f), Florida Statutes, empowers the Florida Real

Estate Commission to revoke, suspend, or otherwise discipline the real estate

license of the Respondent if he "has been convicted or found guilty, regardless

of adjudication, of a crime ... which ... involves moral turpitude..."

11. A plea of guilty is considered a conviction for purposes of this

statute, and the Florida Real Estate Commission is permitted to use the

authenticated records of the court as prima facie evidence of such guilt for

purposes of these proceedings. Bruner v. Board of Real Estate, Department of

Professional Regulation, 399 So.2d 4 (Fla. 5th DCA 1981).

12. The legal issue which must be determined in these proceedings is

whether the knowing possession of the pornographic materials and the intent to

show, sell or distribute some of them, is moral turpitude.

13. The case of State ex rel. Tullidge v. Hollingsworth, 146 So. 666 (Fla.

1933), defines "moral turpitude" as follows:

Moral turpitude involves the idea of inherent

baseness or depravity in the private social

relations or duties owed by man to man or man

to society.

* * *

It has also been defined as anything done

contrary to justice, honesty, principle or

good morals...

14. As stated previously, Counts I through IV of the Information charged

the Respondent with unlawful and knowing possession of four motion pictures

containing sexual conduct by children. Although there are no Florida cases

which describe the possession of such materials as "moral turpitude," Section

827.071(5), Florida Statutes, makes it clear that knowing possession of such

materials is a crime. If individuals do not attempt to procure such materials,

it is reasonable to conclude that fewer children will be subjected to such

exploitation and mistreatment. Adults owe a duty to children not to debauch

them by placing them in pornographic films. The support of the child

pornography market is morally despicable or abhorrent, and meets Florida's

definition of "moral turpitude."

15. In the Matter of Wolff, 490 A.2d 1118 (Wash. D.C. App. 1985), the

Federal District Court determined that the sale of photographs depicting minors

in sexual acts by an attorney to an undercover police officer was moral

turpitude. The court looked to the specific facts of the case and found that

"... his distribution of the photographs and the surrounding circumstances

constituted conduct contrary to justice, modesty, and good morals." Because the

findings of the court in Wolff meet a definition of "moral turpitude" which is

similar to the standard that has been established in Florida for fifty-seven

years, it is reasonable to conclude that Respondent Rosenberg committed a crime

involving moral turpitude when he knowingly procured the movies containing

sexual conduct by children.

16. The allegations set forth in the Information which state that the

Respondent intended to sell, show, or distribute the obscene materials described

in Counts V-XI, do not make him guilty of moral turpitude. It was alleged that

these films or videotapes lacked serious literary, artistic, political, or

scientific value, and they are considered to be obscene materials in Florida.

The Florida definition of "moral turpitude" involves ethical values and a

general conformity to the principles of right and wrong. Respondent's intent to

show, sell, or distribute these obscene materials in violation of the obscenity

laws makes the possession of the films and videotapes described in Counts V-XI

of the Information crimes of moral turpitude for the purposes of this

proceeding.

17. Chapter 21V-24, Florida Administrative Code, set forth the

disciplinary guidelines which are applied to discipline cases. The minimum

penalty for a violation of Section 475.25(1)(f), Florida Statutes, is a

reprimand and/or a fine up to $1,000.00 per count. The maximum penalty is up to

7 years suspension or revocation.

RECOMMENDATION

Based upon the foregoing, and having reviewed the mitigating factors

presented by Respondent at hearing, it is recommended:

1. That Respondent David Rosenberg be found guilty of having violated

Section 475.25(1)(f), Florida Statutes, as set forth in the Administrative

Complaint.

2. That the Respondent's real estate broker's license be suspended for a

period of four years in accordance with the guidelines set forth in Rule 21V-

24.001, Florida Administrative Code. This recommendation aligns itself with the

sentence of the circuit court judge who has given Respondent the opportunity to

be placed in a community control program with probation over a five-year period

in order to receive sexual therapy and repay his debt to society for having

committed crimes which violate Florida's obscenity laws. As one year of the

sentence imposed by the court has passed, the recommended four-year suspension

would run concurrently with the remaining term of the Respondent's sentence.

RECOMMENDED this 7th day of May, 1990, in Tallahassee, Leon County,

Florida.

__________________________________

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of May, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5858

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted.

2. Accepted. See HO #1.

3. Accepted. See HO #2.

4. Accepted. See HO #2 and #3.

5. Rejected. Irrelevant.

Respondent's proposed findings of fact are addressed as follows:

1. Rejected. Improper legal conclusion and irrelevant.

2. Rejected. Immaterial and Irrelevant.

3. Rejected. Irrelevant. A collateral attack on Respondent's

plea is improper as this is not the proper forum for such

review.

4. Rejected. Irrelevant.

5. Accept that adjudication was withheld on all but Counts V-

VIII in the Information. See HO #3. Accept that

Respondent will be receiving therapy. See HO #3.

Accept that Respondent has no prior arrests. The state of

Respondent's future record once he successfully completes

his sentence is irrelevant and is rejected as irrelevant.

The assertion that child pornography is a victimless crime is

rejected as contrary to fact.

6. Accept subparagraphs 6(a) - (d). See HO #4 and HO #5.

Reject subparagraph 6(e). Contrary to fact. See HO #2 and

HO #3.

COPIES FURNISHED:

Steven W. Johnson, Esquire

Department of Professional

Regulation

Division of Real Estate

Post Office Box 1990

Orlando, Florida 32801

Peter L. Rosenberg

Qualified Representative

1224 Southeast 23rd Place

Cape Coral, Florida 33990

Darlene F. Keller, Executive Director

DPR - Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32801

Kenneth E. Easley, Esquire

General Counsel

Department of Professional

Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792