STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2616

)

BRIAN D. RIST )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, on November 30, 1983, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Frederick H. Wilsen, Esquire

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802 For Respondent: No Appearance

This matter arose on Petitioner's Administrative Complaint charging Respondent with wrongfully depositing checks into his personal account which were the property of his employer. Petitioner filed proposed findings of fact which have been substantially adopted and incorporated herein.

FINDINGS OF FACT

1. Respondent is a licensed real estate salesman having been issued license number 0200291. He was licensed as a real estate salesman in the employ of broker John Wesley Bridwell at all times material to these proceedings.

   
   

2. In early 1982, Respondent came into possession of bank checks totaling

   $1,275 belonging to his employing broker John Bridwell and which appeared to carry the signature of Bridwell as payor. Respondent deposited these checks in various bank accounts opened and maintained by Respondent.

   
   

3. Respondent knew the checks were stolen at the time be deposited the checks into his bank accounts.

   
   

4. On August 11, 1982, Respondent was arrested by the Seminole County Sheriff's Department, Sanford, Florida, on the charge of depositing stolen checks with intent to defraud.

5. Respondent confessed to this charge, and on April 15, 1983, adjudication was withheld in the Circuit Court, Seminoles County, Florida, Case No. 32-1250 CFA.

   
   

6. Respondent was sentenced to thirty days confinement followed by ten weekends of confinement in the Seminole County Jail, ordered to make restitution of the $1,275, pay fines exceeding $1,500, and perform 200 hours of community service work.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 475.25, Florida Statutes (1981) , provides in part:

   
   

   1. The commission may....suspend a

license or permit for a period not exceeding

10 years, may revoke a license or permit, 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, permittee or applicant has:

* * *

(b) Has been guilty of fraud, misrepre- sentation, concealment, false promise, 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 mis- conduct 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, or design or scheme. It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sus- tained no damage or loss; that the damage

or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee, or was an identified member of the general public.

* * *

(f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which crime directly re- lates to the activities of a licensed broker or salesman or involves moral turpitude

or fraudulent or dishonest dealing. Any plea of nolo contendre shall be considered a conviction for purposes of this paragraph. The record of a conviction certified or

authenticated in such form as to be admis- sible in evidence under the laws of the state shall be admissible as prima facie evidence of such guilt . . .

Based on the evidence presented at hearing and stipulation of the parties, Respondent engaged in fraud and dishonest dealing in violation of Subsection 475.25(1)(b) F.S., above by obtaining money via depositing checks into his personal accounts which he knew to he stolen from his former employer.

Respondent's state conviction directly relates to his activities as a real estate salesman and involves fraudulent and dishonest dealing in violation of Subsection 475.25(1)(f) F. S., above.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order finding Respondent guilty as charged in the three counts of the Administrative Complaint, and revoking his real estate license.

DONE and ENTERED this 18th day of January, 1984, 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 18th day of January, 1984.

COPIES FURNISHED:

Frederick H. Wilson, Esquire Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Brian D. Rist 3181 Harbado's Ct.

Apopka, Florida 32803

Harold Huff, Director Division of Real Estate Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Fred M. Roche, Secretary Department of professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002616

Orders for Case No: 83-002616