Judges: D. R. ALEXANDER
Agency: Department of Business and Professional Regulation
Latest Update: Nov. 01, 1982
Summary: Charge that realtor violated statute was sustained.
81-2929STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2929
)
OSWALD WELSH, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case by the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 21, 1982, in Miami, Florida.
APPEARANCES
For Petitioner: Frederick H. Wilsen, Esquire
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: William H. Davis, Esquire
111 Northwest 183rd Street Miami, Florida 33169
BACKGROUND
By Administrative Complaint filed on September 18, 1981, Petitioner, Department of Professional Regulation, Board of Real Estate, has charged that Respondent, Oswald S. Welsh, has violated Subsections 475.42(1)(a) and (k), Florida Statutes, for which disciplinary action against his real estate broker's license should be taken. In brief, Petitioner alleges that (1) Welsh opened his own real estate firm, Welsh International Realtors, Inc., on October 11, 1980, while still employed by another realty firm; that on October 13, 1980, Respondent told his regional manager he was resigning from the firm; that Respondent then sold a parcel of property through his newly formed firm, with the closing held on October 17, 1980; that Respondent received a commission from the seller; that Respondent did not hold a broker's license until November 17, 1980; and that accordingly, Respondent was operating as a broker without having a valid broker's license in violation of Subsection 475.42(1)(a), supra; and (2) Respondent applied for certification to become registered as Welsh International Realty, Inc. on October 22, 1980, and that said incorporation was approved on October 24, 1980; and that Respondent thereby violated Subsection 475.42(1)(k), supra, by operating under a trade name without registering the same with the Department and without being the holder of a valid and current registration certificate.
Respondent requested a formal bearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the charges. The matter was forwarded by Petitioner to the Division of Administrative Hearings on November 19, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated January 11, 1982 the final hearing was scheduled for April 2, 1982, in Miami, Florida. By request of the parties, the matter was rescheduled to June 21, 1982, at the same location.
At the final hearing, Petitioner presented no testimony. Respondent testified on his own behalf, presented the testimony of Alan V. Hargot and offered Respondent's Exhibits 1-3, each of which was received into evidence.
The transcript of hearing was filed on July 2, 1982. The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, they waived their right to do so.
At the outset of the hearing, Petitioner withdrew Count I of the complaint.
Remaining at issue is whether Respondent violated Subsections 475.25(1)(a) and 475.42(1)(k), Florida Statutes, by (a) operating under a trade name without causing the same to be noted in the records of the Board and (b) operating as a corporation without being the holder of a valid and current registration certificate.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
At all times relevant thereto, Respondent, Oswald S. Welsh, held real estate broker license number 0301189 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. He presently is broker for Welsh International Realty, Inc. located at 4684 Northwest 183rd Street, Carol City, Florida.
Prior to his involvement with Welsh International Realty, Inc., Respondent was employed as a salesman with Pedro Realty, Inc. until on or about September 15, 1980.
Respondent mailed the required papers to establish his own real estate firm to the Board of Real Estate in Orlando, Florida, shortly after he left Pedro Realty, Inc. He assumed that he was authorized to commence business as a broker once the papers were mailed. This assumption was based upon his understanding of the practice followed by other brokers in Dade County.
However, because the papers were mailed to Orlando rather than the Department of Professional Regulation in Tallahassee, his registration as a broker did not become effective until November 17, 1980.
Respondent engaged the services of an attorney in Hialeah, Florida, to incorporate his real estate firm. The articles of incorporation were sent to the Department of State by letter dated September 19, 1980. Because of an error in the papers, the application was returned to Welsh's attorney on October 1, 1980. The incorporation was ultimately approved on October 22, 1980.
Prior to the approval of the incorporation, a salesman for Respondent's firm negotiated a sale of real property on October 17, 1980. Welsh received no proceeds or other value from the closing.
Welsh is a native of Jamaica who has lived in the United States since 1963. He became a United States citizen in January, 1982. His real estate firm presently employs approximately twelve persons, of whom seven are full time.
Respondent did not intentionally violate the law but appeared to have relied upon the advice of his attorney as to when he could begin to operate his business in a legal manner. Because of errors in filing the papers, or paper not properly filled out by his attorney, he unintentionally began operating prior to approval by the State.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
There is no disagreement between the parties as to whether the illicit conduct occurred. Respondent concedes that it did, but properly contends that it was unintentional. The only remaining issue is the penalty to be imposed.
Respondent appeared to be a sincere and dedicated real estate broker. He readily acknowledged his error but points out he received no pecuniary rewards by prematurely opening his business before all papers were approved. Further, no member of the public was harmed. Under these circumstances, a public reprimand is a sufficient penalty.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Count II of the
Administrative Complaint and issued a public reprimand.
DONE and ENTERED this 8th day of July, 1982, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 8th day of July, 1982.
COPIES FURNISHED:
Frederick H. Wilsen, Esquire Department of Professional Regulation Board of Real Estate
130 North Monroe Street Tallahassee, Florida 32301
William H. Davis, Esquire
111 NW 183rd Street Miami, Florida 33169
Carlos B. Stafford Executive Director Board of Real Estate
400 West Robinson Street Orlando, Florida 32802
Docket for Case No: 81-002929
Orders for Case No: 81-002929
