STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 85-3519

) (DPR# 0150381)

IRA L. COR, t/a SUNSHINE )

EXPRESS REALTY, )

)

Respondent. )

)

RECOMMENDED ORDER

This is a license discipline case in which the Department of Professional Regulation, Division of Real Estate, by Administrative complaint filed August 30, 1985, has charged the Respondent, Ira L. Cor, with violations of Sections 475.25(1)(b) and 475.25(1)(f), Florida Statutes. On June 4, 1986, a formal hearing was conducted in Fort Lauderdale, Florida, before Michael

1. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. All parties were represented by counsel at the hearing.

   
   

   APPEARANCES

   
   

   For Petitioner: Susan Hartmann, Esquire

   Florida Real Estate Commission

   400 West Robinson Street Orlando, Florida 32801

   
   

   For Respondent: James Curran, Esquire

   901 South Federal Highway Suite 203

   Fort Lauderdale, Florida 33316

   
   

   At the hearing the Petitioner offered several exhibits into evidence, but did not call any witnesses. The Respondent called several witnesses to testify on his behalf. A transcript of the hearing was filed on June 26, 1986, and the parties were granted leave through July 28, 1986, within which to file their proposed recommended orders. Both parties filed timely proposed recommended orders. By agreement of the parties, the parties

   were also granted leave to file reply briefs in this case. The Petitioner elected not to file a reply brief. The Respondent filed a reply brief on August 26, 1986.

   
   

   The parties' post-hearing documents have been given careful consideration in the preparation of this Recommended Order. A specific ruling on each proposed finding of fact submitted by each party is contained in the Appendix which is attached to and incorporated into this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact.

   
   

   1. Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the state of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto.

      
      

   2. Respondent is now and was at all times material hereto a licensed real estate broker in the state of Florida having been issued license number 0223671 in accordance with Chapter 475, Florida Statutes.

      
      

   3. The last license issued was as a broker, t/a Sunshine Express Realty, 300 S. Pine Road 262, Fort Lauderdale, Florida 33324.

      
      

   4. On or about November 22, 1983, an information was filed in the Circuit Court of the 17th Judicial Circuit, Broward County, Florida, charging Respondent with one count of insurance fraud by false or fraudulent claim in violation of Section 817.234, Florida Statutes; and two counts of grand theft in the first degree, in violation of Sections 812.014(1)(a), 812.014(1)(b), and 812.014(2)(a), Florida Statutes.

      
      

   5. On March 27, 1985, a verdict was rendered which found Respondent guilty of one count of insurance fraud by false or fraudulent claim, and two counts of grand theft in the first degree. The Court adjudged Respondent guilty of one count of insurance fraud by false or fraudulent claim in violation of Section 817.234, Florida Statutes, and two counts of grand theft in the first degree in violation of Section 812.014(1)(a), Florida Statutes. The Court thereupon sentenced Respondent to a prison term of eighteen months in state prison to be followed by a term of five years of probation.

   6. The Respondent does not appear to be possessed of the mental skills necessary to be the master-mind behind a complex fraud scheme, nor has he demonstrated a tendency to be devious, shrewd, calculating, or cunning. To the contrary, the Respondent appears to be gullible and vulnerable to being taken advantage of, which tendencies may account for the circumstances which led to his conviction.

      
      

   7. The Respondent enjoys an excellent reputation in spite of his criminal convictions and probably would not be a danger to the real estate community if he were allowed to keep his license. The quality of the Respondent's reputation is reflected by the fact that in spite of his convictions, he is currently employed in another broker's real estate company and holds the positions of vice president and head of the commercial department. With the exception of the incident which led to his convictions, the Respondent appears to have demonstrated a high degree of honesty and integrity in his personal and business dealings.

      
      

   8. The Respondent has excellent teaching skills in the field of real estate and is probably one of the better technicians in the field of real estate.

CONCLUSIONS OF LAW

1. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. See Sec. 120.57, Fla. Stat.

   
   

3. Section 475.25(1)(b)and(f),Florida Statutes reads as follows, in pertinent part:

   
   

   1. The Commission . . . may suspend a license or permit for a period not exceeding ten years; may revoke a license or permit; may impose an administrative fine not to exceed Sl,OOO.OO for each count or separate offense; and may issue a reprimand, or any or all of the foregoing, if it finds that the licensee, permittee, or applicant:

* * *

(b) Has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, device, culpable negligence, or breach of trust in any business transaction in this state . . . .

(f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the activities of a licensed broker or salesman .

. . or involves moral turpitude or fraudulent or dishonest dealing.* * * The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be admissible as prima facie evidence of such guilt.

(emphasis added)

(l)(a) Any person who, with the intent to injure, defraud, or deceive any insurance`, company . . . .

1. Presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim; or

   
   

2. Prepares or makes any written or oral statement that is intended to be represented·to any insurance company in connection with, or in support of, any claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

1. Section 812.014(1)(a), Florida Statutes, reads as follows, in pertinent part:

   1. A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit therefrom.

      
      

2. As noted in LaRossa and DuPont Realty Investment Corporation v. Department of Professional Regulation, 474 So. 2d

   322 (Fla. 3rd DCA 1985):

   
   

   A registered real estate broker may be disciplined not only for dishonest conduct in transactions in which his only interest is a a broker, but also for such conduct in his own personal business affairs. Sec.

   475.25(1)(b), Fla. Stat. (1981); Sellers v. Florida Real Estate Commission, 380 So. 2d 1052 (Fla. 1st DCA), review denied, 389 So. 2d 1114 (Fla. 1980); McKnight vs. Florida Rea1 Estate Commission, 202 So. 2d 199 (Fla. 2d DCA 1967), cert. denied, 209 So. 2d 672

   (Fla. 1968).

   
   

3. with regard to the alleged violation of Section 475.25(1)(b), Florida Statutes, there is no serious dispute as to whether the Respondent's conviction of insurance fraud by false or fraudulent claim constitutes at least "fraud" or "misrepresentation" within the meaning of the last-cited statutory provision. However, an essential element to the establishment of a violation of the subject statutory provision is proof that the conduct complained of occurred in a "business transaction," and the Respondent argues there is no such proof in this case. The argument is without merit. An insurance company is a business and a significant business function of an insurance company consists of the payment of claims. The presentation of a claim to an insurance company is obviously a business transaction, and where the claim presented is false or fraudulent, the act of making the claim constitutes fraud or misrepresentation in a business transaction within the meaning of Section 475.25(l)(b), Florida Statutes. Accordingly, the Respondent is guilty of a violation of Section 475.25(1)(b)' Florida Statutes, as charged in Count I of the Administrative Complaint.

4. There is no question that the evidence in this case is sufficient to establish the violation of Section 475.25(1)(f), Florida Statutes, which is charged in Count II of the Administrative Complaint. The evidence clearly establishes the

   Respondent's conviction of the crimes of insurance fraud by false or fraudulent claim and grand theft in the first degree, and it cannot be doubted that these are crimes which involve H fraudulent or dishonest dealing." These crimes also involve moral turpitude. See, Generally, Pearl v. Florida Board of Real Estate, 394 So. 2d 189 (Fla. 3d DCA 1981). And the evidence in this case does not contain any of the mitigating factors which were present in Reid v. Florida Real Estate Commission, 188 So.

   2d 846 (Fla. 2d DCA 1966).

   
   

5. Although the crimes for which- the Respondent has been convicted are serious crimes which in some circumstances would warrant license revocation, it appears from the evidence regarding the Respondent's character that such criminal conduct was an aberrant incident not likely to be repeated by the Respondent. In this regard it is significant that even one of the Petitioner's fraud investigators testified favorably in support of the Respondent's good character. In view of the Respondent's reputation for honesty and integrity and in view of the trust and confidence which others involved in the real estate business presently have in him, I am persuaded that the penalty in this case should be mitigated. Accordingly, it is

RECOMMENDED:

That the Florida Real Estate Commission enter a Fina1 Order to the following effect:

1. Finding the Respondent guilty of a violation of Section 475.25(1)(b), Florida Statutes, as charged in Count I;

   
   

2. Finding the Respondent guilty of a violation of Section 475.25(1)(f), Florida Statutes, as charged in Count II;

   
   

3. Imposing an administrative fine in the amount of $1,000.00 for each of the above violations, i.e., a total of S2,000-00 in administrative fines; and

   
   

4. Suspending the Respondent's license for a period of six (6) months.

DONE AND ENTERED this 25th day of September, 1986, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1986.

COPIES FURNISHED:

Susan Hartmann, Esquire Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

James Curran, Esquire

901 South Federal Highway Suite 203

Fort Lauderdale, Florida 33316

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

Regulation

400 West Robinson Street Orlando, Florida 32801

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

APPENDIX

The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties.

Findings proposed by Petitioner

All of the findings proposed by the Petitioner are accepted and have been incorporated into the findings of fact in this Recommended Order.

Findings proposed by Respondent Paragraph 1: Accepted in substance.

Paragraphs 2 and 3: Rejected as irrelevant and unnecessary commentary on the evidence and not proper findings of

Paragraph 4: Rejected as constituting subordinate, irrelevant, and unnecessary details.

Paragraph 5: Accepted in substance with unnecessary details deleted.

Paragraph 6: Rejected in part as constituting subordinate, irrelevant, and unnecessary details. Penultimate and antepenultimate lines accepted in substance. Last line rejected as not supported by persuasive competent substantial evidence.

Paragraph 7: First sentence accepted in substance. Second sentence rejected as unnecessary details.

Paragraph 8: Rejected as incomplete.

Paragraph 9: Accepted in substance with unnecessary details deleted.

Paragraphs 10 and 11: Rejected as subordinate irrelevant, and unnecessary details and as not supported by persuasive evidence because Mr. Molinari was not shown to be knowledgeable in the field of real estate schools.

Paragraph 12: Rejected as subordinate, irrelevant, and unnecessary details.

Paragraph 13: Accepted in substance with unnecessary details deleted.

Paragraph 14: Rejected as subordinate, irrelevant, and unnecessary details.

Paragraph 15: Accepted in substance with unnecessary details deleted.

Paragraph 16: Rejected as constituting argument.

Paragraph 17: Accepted in substance with unnecessary details deleted.

Paragraph 18: Rejected as subordinate, irrelevant, and unnecessary details.

Paragraph 19: Accepted in substance with unnecessary. Paragraph 20: Accepted in substance.

Docket for Case No: 85-003519

Orders for Case No: 85-003519