STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE )

COMMISSION (Formerly Board of ) Real Estate), )

)

Petitioner, )

)

vs. ) CASE NO. 81-3121

)

GREENE F. ISAACS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 13, 1982, in Tampa, Florida. The issue for determination at the hearing was whether respondent's license as a real estate broker should be revoked, suspended or otherwise disciplined for the reasons set forth in the Administrative Complaint dated December 9, 1981.

APPEARANCES

For Petitioner: Julie Gallagher

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: David F. Kern

516 Lakeview Road, Villa III Clearwater, Florida 33516

INTRODUCTION

By a one-count administrative complaint signed on December 9, 1981, the petitioner charged the respondent with violations of Sections 475.25(1)(g) and 475.25(1)(b), Florida Statutes. In summary form, the Complaint alleges that in 1976, respondent executed a contract with Daniel Diaz for the sale of real property in Kentucky, that title to the property was to pass upon payment in full and was to be free of all encumbrances, that respondent issued a general warranty deed to Diaz in September of 1978 which made no mention of encumbrances, that respondent had made two mortgages on that property in 1975, that respondent thereby violated the laws of the Commonwealth of Kentucky and that, as a result, the Kentucky Real Estate Commission revoked the respondent's real estate broker's license on June 25, 1980.

The only evidence offered at the hearing was petitioner's Exhibits 1 and 2. Exhibit 2 is a certified copy of the "Findings of Fact, Decision, and Order" of the Kentucky Real Estate Commission. Ruling as to its admissibility was reserved pending the submission of memoranda of law by the parties. Having considered the memoranda submitted by the parties, it is ruled that petitioner's Exhibit 2 constitutes an exception to the hearsay rule under Section 90.803(8), Florida Statutes, for the purpose of demonstrating that respondent's real estate license was revoked in Kentucky. For all other purposes, Exhibit 2 constitutes hearsay evidence which, standing alone, cannot be utilized to support a finding of fact in this proceeding.

The parties have also submitted proposed recommended orders. To the extent that the parties' proposed findings of fact are not contained in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the documentary evidence adduced at the hearing, the following relevant facts are found:

1. According to the files and records of the Florida Real Estate Commission, respondent Greene F. Isaacs received his initial salesman license on April 12, 1979 and his initial broker license on April 29, 1980. He is currently a licensed broker holding license number 0308665.

   
   

2. By an Order dated June 25, 1980, the Kentucky Real Estate Commission revoked the real estate broker's license of respondent Green F. Isaacs.

   
   

   CONCLUSIONS OF LAW

   
   

3. The petitioner has charged the respondent with violations of Sections 475.25(1)(b) and 475.25(1)(g), Florida Statutes, based upon certain allegations of fact which occurred in the Commonwealth of Kentucky in 1976, 1978 and 1980. As the sole support for these allegations of fact, petitioner offered into evidence the "Findings of Fact, Decision and Order" of the Kentucky Real Estate Commission. As noted in the Introduction, while this document is admissible as an exception to the hearsay rule pursuant to Section 90.803(8), Florida Statutes, for the purpose of demonstrating that the Kentucky Real Estate Commission did revoke the respondent's real estate broker's license in 1980, it constitutes hearsay evidence insofar as it is offered to prove the truth of the factual matters leading up to the revocation. While hearsay evidence may be utilized in an administrative proceeding to supplement or explain other admissible evidence, it may not be used alone to support a factual finding unless it would be admissible over objection in civil actions. Section 120.58(1)(a), Florida Statutes (1981). Petitioner having failed to adduce any other evidence to substantiate the allegations of paragraphs 5 through 9 of the Administrative Complaint with regard to the real estate transaction between respondent and Daniel Diaz, respondent cannot he found guilty of violating Section 475.25(1)(b), Florida Statutes.

   
   

4. The evidence does establish that respondent's real estate broker's license was revoked by an Order entered by the Kentucky Real Estate Commission. Respondent's challenge to the validity of that Order is not cognizable in this proceeding. Section 475.25(1)(g), Florida Statutes, provides that the petitioner may deny an application for licensure or renewal, may suspend or

revoke a license, may impose a fine or may issue a reprimand if it finds that a licensee has had a broker's license revoked by the real estate licensing agency of another state. The respondent having had his license revoked in Kentucky, he is subject to disciplinary action by the petitioner.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 475.25(1)(g), Florida Statutes, and that respondent's real estate broker's license number 0308665 be suspended for a period of one (1) year.

Respectfully submitted and entered this 22nd day of July, 1982 in Tallahassee, Florida.

DIANE D. TREMOR, 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 22nd day of July, 1982.

COPIES FURNISHED:

Julie Gallagher, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

David F. Kern, Esquire

516 Lakeview Road, Villa III Clearwater, Florida 33516

Mr. C. H. Stafford Fred Wilsen, Esquire

Executive Director Real Estate Commission

Real Estate Commission State Office Building

P. O. Box 1900 400 West Robinson Street

Orlando, Florida 32801 Orlando, Florida 32801

Docket for Case No: 81-003121

Orders for Case No: 81-003121