STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2496

)

IRVIN BELL, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ft. Lauderdale, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R.

1. Carpenter, on November 13, 1981. The parties were represented by:

   
   

   APPEARANCES

   
   

   For Petitioner: Harold M. Braxton, Esquire

   45 Southwest 36th Court Miami, Florida 33135

   
   

   For Respondent: Richard R. Michelson, Esquire

   5460 North State Road 7, Suite 220 Ft. Lauderdale, Florida 33319

   
   

   This matter arose on Petitioner's Administrative Complaint which alleges that Respondent, in the course of his business as a licensed real estate broker, forged five checks totalling $4,000. Petitioner seeks to discipline Respondent under Section 475.25(1)(b), Florida Statutes (1979), on the basis of these allegations.

   
   

   Respondent denied the charges and moved to dismiss the proceedings on jurisdictional and due process grounds. These motions are discussed in the Conclusions of Law section below. The parties submitted proposed findings of fact which are incorporated herein to the extent they are relevant and supported by the evidence.

   
   

   Petitioner's evidence was presented through the testimony of eight witnesses and nine exhibits. Petitioner's witnesses included the four salespersons who were the purported payees of the checks, Respondent's former secretary, his ex-partner, Petitioner's investigator and Respondent (adversely). Respondent called four character witnesses and introduced two exhibits into evidence.

   FINDINGS OF FACT

   
   

   1. Respondent is a registered real estate broker and was so licensed at all times relevant to this proceeding. At the time of the alleged forgeries, Respondent was an officer of John F. Ring Realty, Inc., and was the manager of that firm's office at 201 North University Drive, Ft. Lauderdale, Florida.

      
      

   2. On June 25, 1980, Respondent wrote two checks on the account of John F. Ring Realty, Inc., payable to Phyllis Cohen in the sum of $425, and to Ann Sanders in the sum of $550. On July 10, 1980, and on the same account, Respondent wrote a second check to Phyllis Cohen in the amount of $1,000. On September 19, 1980, on the same account, Respondent wrote a check payable to Dan Dickerhoff in the sum of $1,210. Respondent wrote a fifth check on this account on September 26, 1980, payable to Rose Friedman, in the sum of $815.

      
      

   3. All of these checks were purportedly written to cover sales commissions. Each check bore an endorsement which was purportedly that of the payee, and was endorsed by Respondent. Each named payee testified that the endorsement was not his or her signature, that he or she was not entitled to the funds represented by the checks, and never received the check or the funds.

      Each identified the signature of Respondent as the drawer.

      
      

   4. Respondent admitted to his ex-partner, Petitioner's investigator and Phyllis Cohen that he had endorsed and cashed these checks. Respondent also apologized to Ann Sanders when she confronted him with the forgery. These were statements against interest and are therefore admissible as hearsay exceptions. 1/

      
      

   5. Respondent's character witnesses established that he has a good reputation in the realtors community. These witnesses have found Respondent to be honest and reliable, and would continue doing business with him regardless of any adverse findings here.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The evidence established that Respondent wrote five checks payable to ether persons, forged their signatures, uttered the checks and thereby obtained

      $4,000 to which he was not entitled. These were fraudulent and dishonest acts intended to injure the corporation of which he was an officer.

      
      

   7. Section 475.25, Florida Statutes (1979), provides in part:

      
      

      1. The board may deny an appli- cation for licensure or renewal, may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administrative fine not to exceed $1,000 for each count or separate offense, or, may issue a reprimand, if it finds that the licensee or applicant has:

         1. Violated any provision of s. 475.42 or of s. 455.227(1);

         2. Been guilty of fraud, mis- representation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device,

            culpable negligence, or breach of trust in any business transaction in this state or any other state, nation, or territory; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real

            estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and

            in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and has committed an overt act in furtherance of such intent, design, or scheme.

            It shall be immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the miscon- duct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee, or was an identified mem- ber of the general public [.]

            
            

   8. Because the intended victim was not a member of the general public, Respondent moved to dismiss the proceedings, citing Cannon v. Florida Real Estate Commission, 221 So.2d 240 (Fla. 4th DCA 1969), the Court in the cited case held that a dispute between broker and his salesperson regarding payment of commissions was a contractual matter and not a proper subject for discipline under Section 475.25, Florida Statutes. However, the Court further stated that "enforcement of rights thereunder (Section 475.25), absent fraud, concealment or dishonest acts, should be by a court of proper jurisdiction rather than by an administrative agency." 2/ Here, fraudulent and dishonest conduct was involved and Petitioner's jurisdiction was properly invoked. The motion to dismiss is therefore denied.

      
      

   9. Respondent also moved to dismiss on due process grounds, challenging the constitutionality of Chapter 120 and Subsection 475.25(1)b, Florida Statutes (1979). Such constitutional issues cannot be resolved in an administrative proceeding, 3/ and this motion is likewise denied.

      
      

   10. Petitioner seeks revocation of Respondent's license. This penalty is appropriate in view of the serious nature of the misconduct, Respondent's commission of five corrupt acts over a three-month period and the absence of mitigating circumstances.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of allegations set forth in the

Administrative Complaint. It is further

RECOMMENDED that Respondent's license as a real estate broker be revoked.

DONE AND ENTERED this 28th day of December, 1981, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1981.

ENDNOTES

1/ Subsections 90.804(2)(c) and 120.58(1)(a), Florida Statutes (1979).

2/ Id. at page 242. See also McKnight v. Florida Real Estate Commission, 202 So.2d 199, 200 (Fla. 2nd DCA 1967); and Brod v. Jernigan, 188 So.2d 575, 582 (Fla. 2nd DCA 1966).

3/ Dependable Air-Cond. v. Office of Treasurer, 400 So.2d 117, 120 (Fla. 4th DCA 1981).

COPIES FURNISHED:

Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

Richard R. Michelson, Esquire

5460 North State Road 7, Suite 220 Ft. Lauderdale, Florida 33319

Docket for Case No: 81-002496

Orders for Case No: 81-002496