STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

ex. rel, Thomas M. Murray, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1721

)

JOYCE H. CLEMENZ, )

)

Respondent. )

)

APPEARANCES

For Petitioner: Manual E. Oliver, Esquire

Florida Real Estate Commission 717 Ponce de Leon Boulevard Coral Gables, Florida 33134

For Respondent: Joyce H. Clemenz, pro se

Post Office Box 431539 South Miami, Florida 33143

RECOMMENDATION

This case cane before the undersigned Hearing Officer, Division of Administrative Hearings on the Administrative Complaint by the Florida Real Estate Commission against the Respondent, Joyce H. Clemenz, charging her with being guilty of dishonest dealing, trick, scheme, device or breach of trust in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. The charges in the Complaint stem out of allegations that the Respondent made personal long distance phone calls while employed as a real estate salesman.

This case was noticed for hearing at the Offices of the Florida Real Estate Conssion, Coral Gables, Florida, and was heard on May 26, 1976. At that hearing the Respondent appeared and stated that she had not received Notice of Hearing, however, she waived the objection she might have had to that and agreed to proceed with the hearing.

At that hearing the Real Estate Commission failed to present competent evidence which would support the statement of facts contained in the Information filed by the Real Estate Commission. One witness testified, Rose Marie George, an employee of the Magnuson Corporation, with whom the Respondent had been employee and to whom she is alleged to have charged these personal phone calls. Mrs. George stated that she receives the accounts payable for the Magnusom Corporation and that on several occasions makes note of unusually high telephone charges. She stated that she had been told that the Respondent had made some personal phone calls which were charged to the Magnusom Corporation. Mrs.

George did not testify as to whether the Respondent made these telephone calls without permission or whether she had reimbursed the corporation for those calls. Furthermore, Mrs. George's testimony, except for that part which relates to her own responsibilities, was pure, unsubstantiated hearsay and cannot be the

basis for any findings of fact relative thereto. See Subsection 120.58(1)(a), Florida Statutes.

The only other item of evidence which the Real Estate Commission attempted to submit was a certified copy of the Judgment of the County Court for Dade County relating to the same transactions as described in the Administrative Complaint. The above exhibit was marked Petitioner's Exhibit No. 2 and was not admitted by this Hearing Officer for the reason that a Judgment in a civil action is not admissible in another proceeding to establish the truth of the allegations therein inasmuch as the Real Estate Commission produced no other evidence relative to this matter, it is the finding of this Hearing Officer that there was a complete absence of any substantial evidence which might support the truth of the allegations in the information filed by the Real Estate Commission and it is, therefore,

RECOMMENDED that the Complaint issued in this matter be dismissed. DONE and ORDERED this 14th day of June, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Manuel E. Oliver, Esquire Florida Real Estate Commission 717 Ponce de Leon Boulevard Coral Gables, Florida 33134

Joyce H. Clemenz

Post Office Box 431539 South Miami, Florida 33143

Docket for Case No: 75-001721

Orders for Case No: 75-001721