STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE )

COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-990

) P.D. NO. 3186

HERBERT F. MICHAELIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on September 23, 1977 at Gainesville, Florida.

APPEARANCES

For Petitioner: Bruce I. Kamelhair, Esquire

Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Herbert F. Michaelis

1521 S.E. 25th Avenue Gainesville, Florida 32601

1. By Administrative Complaint filed April 7, 1977, FREC seeks to revoke, suspend, or otherwise discipline the real estate salesman's license of Herbert

   F. Michaelis. As grounds therefore it is alleged that Respondent was guilty of fraud, misrepresentation, concealment, dishonest dealing, and breach of trust in a business transaction involving his purchasing of property on which another broker had an exclusive listing and attempting to defraud the broker of his commission. Michaelis stipulated that at all times involved in the Administrative Complaint he was a registered real estate salesman with FREC.

   
   

2. After one witness testified and two exhibits were admitted into evidence, Respondent stated he realizes what he did was wrong and he wanted to save the time of everybody present and plead guilty to the charges. After the undersigned Hearing Officer explained the effect of such a plea to Respondent he persisted therein and thereafter made a statement indicating why he did what he had done.

FINDINGS OF FACT

1. Farouk Abdulla executed an agreement giving Trend Realty of Gainesville, Inc. an exclusive listing to sell his residence in Gainesville. Thereafter the property was listed in Multiple Listing Service.

2. Herbert F. Michaelis, a salesman working for Wayne D. Mason & Company, Inc., a corporate broker, learned the Abdulla home was for sale and prepared an offer, with the assistance of Mason, which he took to Trend Realty to be presented to Abdulla. The listing salesman was not happy with the offer, and after Michaelis had waited over an hour for the listing salesman to go with him to present the offer to Abdulla, the salesman told Michaelis to present the offer himself.

   
   

3. When he discussed the offer with Abdulla, Michaelis realized the terms of his offer were unacceptable to Abdulla as the latter needed quick cash to visit a dying mother in Iraq. They then arranged a different deal whereby Michaelis paid Abdulla $3,000 in cash and the transaction was closed.

   
   

4. Later Michaelis told Trend Realty that he had leased the property. Thereafter Michaelis told his employer what he had done and he was fired. When Trend Realty learned that Abdulla had sold the house they asked him for the commission. He paid $100 and later Michaelis paid the balance of the commission owed to Trend.

   
   

5. Michaelis placed his license in an inactive status and had been out of the real estate field for more than a year at the time of the hearing.

   
   

   CONCLUSIONS OF LAW

   
   

6. A plea of guilty made with the full knowledge of the effects of such a plea is proof of guilt of the highest order. 9 FLA. JUR. CRIM. LAW Section 358. Tolar v. State, 196 So.2d 1 (Fla. App. 1967). A guilty plea is also a plea in mitigation. It acknowledges the commission of the acts alleged and serves to express contrition therefor. Here Respondent freely acknowledged that he was wrong, that he realized immediately after the event that what he had done was wrong and he confessed to his employer. He has voluntarily suspended his license for more than one year and the maximum punishment authorized for the offense of which Michaelis pleaded guilty is suspension of his registration for two years.

   
   

7. From the foregoing, it is concluded that Herbert F. Michaelis is guilty as alleged. It is further concluded that he is truly repentant for having committed the offense and this, coupled with his plea of guilty, are mitigating factors in determining an appropriate punishment. It is therefore,

RECOMMENDED that the registration of Herbert F. Michaelis be suspended for a period of six months commencing upon the date of the order the Commission entered herein.

DONE and ENTERED this 7th day of October, 1977, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

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

COPIES FURNISHED:

Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Herbert F. Michaelis 1522 S.E. 25th Avenue

Gainesville, Florida 32601

Docket for Case No: 77-000990

Orders for Case No: 77-000990