STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-188

)

1. TOM MACON )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice an administrative hearing was held in the above styled cause before Delphene C. Strickland, assigned Hearing Officer of the Division of Administrative Hearings, on May 17, 1979, beginning at 2:30 p.m. in Room 341 of the Lee County Courthouse, 2115 Second Street in Fort Myers, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Kenneth M. Meer, Esquire

   Florida Real Estate Commission

   400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

   
   

   For Respondent: Harry A. Blair, Esquire

   Post Office Box 1467

   Fort Myers, Florida 33902

   
   

   ISSUE

   
   

   Whether the license of Respondent, O. Tom Macon, should be suspended, or whether other disciplinary action should be imposed.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, O. Tom Macon, is a registered real estate salesman residing in Fort Myers, Florida, who holds License number 0054554 as a real estate salesman.

      
      

   2. On April 20, 1978, an administrative complaint was filed against the Respondent alleging that he was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in a business transaction. The Respondent requested an administrative hearing.

      
      

   3. In January of 1974, Mr. James Fortiner, Dr. David Brown, and Respondent Macon purchased the Professional Arts Building in Fort Myers, Florida. The transaction was documented by a deed from the seller to the Respondent as trustee. Title was transferred to a corporation, Professional Arts Building of

      Fort Myers, Inc., in December of 1974. James Fortiner transferred his interest in the property to Respondent Macon, leaving the Respondent with a two-thirds interest in the property and Dr. Brown with a one-third interest. At a later date Respondent Macon obtained a $20,000.00 personal loan from a man by the name of Phil Elliott, secured by a second mortgage on the subject property. He did not secure Dr. Brown's permission to mortgage the property or tell him of the encumberance. Subsequently, Respondent Macon contracted to sell the Professional Arts Building to Jeanne L. Eveleth in February of 1976. At the closing in March of 1976, which Dr. Brown did not attend, a check for $33,433.42 was deposited to the account of the Professional Arts Building, Limited.

      Simultaneously, Respondent Macon paid his personal debt to Mr. Elliott out of the proceeds of the sale and satisfied the mortgage.

      
      

   4. A final statement established that Respondent Macon owed personal debts to the limited partnership in the amount of $6,972.45, and that the limited partnership owed Dr. Brown this amount of money. After the sale of the property and the payment of Respondent's personal debt out of the proceeds, there were no assets left in the corporation. When confronted with this situation, the Respondent promised Dr. Brown he would pay him the money the Respondent had used without authorization, but in November of 1976, the Respondent went into voluntary bankruptcy. At that time Respondent Macon still owed Dr. Brown the full amount due to Dr. Brown as a result of the sale of the subject property. Bankruptcy, however, has no effect on the authority of Petitioner to discipline.

      
      

   5. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction of this cause pursuant to Section 120.57, Florida Statutes.

      
      

   7. Section 475.25 Grounds for revocation or suspension provides as follows:

      
      

      1. The registration of a registrant may be suspended for a period not exceeding 2 years, or until compliance with a lawful order imposed in the final order of suspension,

         or both, upon a finding of facts showing that the registrant has:

         1. Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction...

            
            

   8. Respondent Macon is guilty of violating the foregoing statute, and is guilty of false promises, a scheme to pay his personal debts at the expense of his partner, and a breach of trust.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends suspension of Respondent O. Tom Macon's license until such time as he makes full restitution to Dr. Brown.

DONE and ORDERED this 7th day of July, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Kenneth M. Meer, Esquire Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Harry A. Blair, Esquire Post Office Box 1467

Fort Myers, Florida 33902

Docket for Case No: 79-000188

Orders for Case No: 79-000188