STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-631

)

MAXINE PORTER, )

)

Respondent. )

)

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this matter on June 20, 1980, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Frederick H. Wilsen

Tallahassee, Florida

For Respondent: Maxine Porter (appeared on her own behalf)

On or about October 27, 1978, the Petitioner, Florida Real Estate Commission 1/ , issued and filed an Administrative Complaint against the Respondents, George F. Rivello and Maxine Porter. The Respondent Porter requested a formal hearing with respect to the allegations of the Complaint. It does not appear that the Respondent Rivello made any such request. On or about March 16, 1979, the Real Estate Commission forwarded the Complaint to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. The final hearing was originally scheduled to be conducted on June 19, 1979. Copies of the Notices of Hearing that had been forwarded to the Respondents were returned as undeliverable by the

1. Postal Service. The Real Estate Commission accordingly requested a continuance of the final hearing in order that the Respondents could be served with copies of the Notice of Hearing. The Respondent Porter was ultimately served with a Notice of Hearing rescheduling the matter to be heard on May 16, 1980. She requested a continuance, and the final hearing with respect to her was rescheduled as set out above. It still does not appear that service of a Notice of Hearing has been accomplished with respect to the Respondent Rivello.

   
   

   At the final hearing, the Petitioner called the following witnesses: Andre Faucher, a business person who rented an office to the Respondents; and Bruce H. Butler, the Assistant Credit Manager for Gore Newspapers in Fort Lauderdale, Florida. Petitioner's Exhibits 1 and 2 were received into evidence.

   FINDINGS OF FACT

   
   

   1. The Respondent, Maxine Porter, has, at all times relevant to this proceeding, been registered with the Petitioner as a real estate saleswoman.

      
      

   2. From August until November, 1977, Maxine Porter, together with another individual, rented an office in Fort Lauderdale from a local businessman. They appeared to be conducting a real estate sales business in the office. In Count Two of the Administrative Complaint filed against Porter, it is alleged:

      
      

      1. That on or about the 2nd day of November, 1977, Maxine Porter, as maker, drew a check payable to the order of Andrea [sic] Faucher, in the amount of

         $416 for rent for the office which she was then occupying.

      2. That said check was subsequently dis honored for the reason that there were insufficient funds in the account for payment.

         
         

         Andre Faucher was subpoenaed as a witness at the final hearing and appeared. He was unable to find a copy of the check that was allegedly not honored. Faucher recalled that he received a check in payment for rent on the office, and that the check was dishonored. He did not recall who was the maker of the check.

         Although he recognized Maxine Porter, he did not recall whether the check was drawn on her account, or some other account. He did not recall whether she or someone else signed the check.

         
         

   3. Apparently, in connection with the real estate business, the Respondent placed several advertisements in local newspapers. In Count Three of the Administrative Complaint, it is charged:

      
      

      1. That on or about the 20th day of October, 1977, Maxine Porter, the defendant as maker, drew a check payable to the order of Gore Newspapers in the amount of $715.36.

      2. That said check was dishonored for the reason that there were insufficient funds in the account to make payment.

      
      

      Bruce H. Butler, the Assistant Credit Manager for Gore Newspapers in Fort Lauderdale, appeared as a witness at the hearing in accordance with a subpoena. He was able to find a record of various advertisements that were placed by a Winston Realty. It appeared from the records that he presented that proper payment was made for the advertisements. He was not able to find any dishonored check. Mr. Butler had no knowledge as to whether any check was issued to Gore Newspapers by the Respondent and subsequently dishonored. To his knowledge, proper payment was made for all of the advertisements.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Sections 120.57(1), and 120.60, Florida Statutes.

   5. Count One of the Administrative Complaint filed by the Petitioner does not relate to the Respondent, Maxine Porter.

      
      

   6. The Petitioner has failed to prove the allegations set out in Count Two of the Administrative Complaint. Neither the testimony nor any other evidence offered in the course of the hearing establishes that Maxine Porter issued any check that was dishonored. The evidence reveals that a businessman, who rented an office to a business at which Maxine Porter worked, received a check for rent for the office, and that the check was not honored by the bank. No nexus between the check and the Respondent Porter has been shown.

      
      

   7. The Petitioner has failed to establish the allegations set out in Count Three of the Administrative Complaint. The evidence with respect to Count Three does not reveal that any check was issued by Maxine Porter which was dishonored.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Board of Real Estate dismissing the Administrative Complaint with respect to the Respondent, Maxine Porter.

RECOMMENDED this 26th day of June, 1980, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1980.

ENDNOTE

1/ The Commission has been redesignated as the Florida Board of Real Estate. Chapter 79-239, Laws of Florida.

COPIES FURNISHED:

Salvatore A. Carino, Esquire Board of Real Estate

Department of Professional Regulation The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Ms. Maxine Porter

208 Sixth Street

Holly Hill, Florida 32017

Mr. C. B. Stafford Executive Director Board of Real Estate

Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 79-000631

Orders for Case No: 79-000631