STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BANKING AND FINANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0328

)

TERRY E. CHRISTENSEN, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was scheduled to be held in Orlando, on May 13, 1986. However, the parties agreed to submit the case for entry of a recommended order on stipulated facts, and the final hearing was cancelled. The parties' Stipulation was filed on May 19, 1986. The parties asked for and received until May 23, 1986, in which to file proposed recommended orders.

For Petitioner. John B. Root, III, Esquire

Orlando, Florida

For Respondent. Gorham Rutter, Jr., Esquire

Orlando, Florida

The issue in this case is whether Petitioner, Department of Banking and Finance (Department), should suspend mortgage broker license number HB15055 held by Respondent, Terry E. Christensen (Christensen), for having a real estate broker license currently under suspension based on fraud, misrepresentation, or deceit in violation of Section 494.05(1)(k), Florida Statutes (1985).

PROCEDURAL BACKGROUND

Initially, Petitioner, Department of Banking and Finance (Department), gave notice of intent to suspend the mortgage broker license held by Respondent, Terry E. Christensen, upon the allegations of an administrative complaint arising out of entry of a final judgment in a civil action. The charge was that the final judgment had held "as a matter of law, that the conduct of Terry E. Christensen in dealing with plaintiffs and in failing to supervise the employees of TEC Realty, Inc., constitutes culpable negligence in a business transaction, as described in Section 475.25(1)(b), Florida Statutes." The administrative complaint also alleged other violations by TEC Realty, Inc., the company for which Christensen was real estate broker.

In petitioning for a formal hearing, Christensen disputed that he was responsible for the proper conduct of the business of TEC Realty, Inc., disputed that TEC Realty, Inc. was his agent, and disputed that the final judgment was entered against him based upon any grounds referred to in Section 494.05(1)(a)(d), or (e), Florida Statutes (1985), as alleged in the administrative complaint.

Later, on or about March 4, 1986, the Department amended the administrative complaint to add the allegations:

1. On or about December 8, 1982, the Department of Professional Regulation filed a three-count Administrative Complaint against TEC Realty, Inc. and Terry E. Christensen alleging, among other matters, fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, breach of trust, conversion, failing to account or deliver monies which belong to another, and issuing worthless bank checks. Exhibit 2.

2. On or about December 14, 1982, the Department of Professional Regulation filed a three-count Administrative Complaint against Terry E. Christensen alleging, among other matters, dishonest dealing by trick, scheme or device, culpable negligence, breach of trust

   in a business transaction, and failure

   to account or deliver monies which belong to another. Exhibit 3.

3. On or about June 9, 1983, Terry E. Christensen, individually and as officer and broker of TEC Realty, Inc. entered into Stipulated Facts and Conclusions of Law in Cases 0024293, 0021931. Exhibit 4.

4. On or about June 21, 1983, a Final Order was issued in DOAH Case 83-346

   (DPR Case 0024293) and DOAH Case 83-345

   (DPR Case No. 0021931). Exhibit 5.

5. Terry E. Christensen's real estate license was suspended for five (5) years on or about July 30, 1983."

(No exhibits were attached to the Amended Notice of Intention To Suspend Or Revoke And Administrative Charges And Complaint.) The Department took the position that the additional charges stated a violation of Section 494.05(1)(k), Florida Statutes (1985).

Christensen did not answer the amended complaint. However, on or about May 5, 1986, he served Respondent's Pre-Trial Statement. In Respondent's Pre-Trial Statement, Christensen stated the nature of the controversy between the parties to be that the Department was seeking to suspend his mortgage broker license "and the Respondent denies the applicability of all asserted grounds for his suspension." (Emphasis added.) Christensen also stated his position to be:

". . . . It is the position of the Respondent that the provisions of Florida Statutes, Section 494.05 and Section 494.093 are not applicable to any acts allegedly committed

by Respondent. In particular, Florida Statutes, Section 494.05(1)(k) is not

applicable inasmuch as the enforcement of same against Respondent would be retro- spective in nature and ex post facto in operation."

Thereafter, the parties entered into their Stipulation on the facts which forms the basis of paragraphs 1 through 7 of the Findings Of Fact.

FINDINGS OF FACT

1. In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage Solicitor until July 15, 1984.

   
   

2. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055.

   
   

3. That in August 1984 and August 1985 the Mortgage Broker's License of the Respondent was renewed by the Department of Banking and Finance.

   
   

4. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00.

   
   

5. That to the knowledge of the Respondent, no complaints have been made to the Department of Banking and Finance concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker.

   
   

6. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family.

   
   

7. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years.

   Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request For Judicial Notice filed in this cause and dated April 24, 1986.

   
   

8. Christensen's Stipulation which was confirmed by the Final Order of the Florida Real Estate Commission recites that Christensen was "served with the Administrative Complaint, copy attached," charging Christensen with violating certain provisions of Chapter 475, Florida Statutes, and admits that the Administrative Complaint contains no disputed issues of material fact. But the Administrative Complaint itself apparently is not attached to the Stipulation approved by the Florida Real Estate Commission. It is not attached to the Stipulation filed in this case and is not found anywhere in the evidentiary or official record of this case. The Stipulation filed by the parties in this case does not state whether the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit.

   
   

   CONCLUSIONS OF LAW

   
   

9. Although as a result of the parties' Stipulation this proceeding no longer involves a disputed issue of material fact, the parties have agreed to

   the continued jurisdiction of the Division of Administrative Hearings and to entry of a recommended order in this case. See Section 120.57, Florida Statutes (1985).

   
   

10. The stipulated facts relate only to Section 494.05(1)(k), Florida Statutes (1985), which provides:

    
    

    "(1) The department may, upon its motion, or upon the verified complaint in writing of any person, investigate the actions

    of any person engaged in the business or acting in the capacity of a licensee under this act, within this state. The license of a licensee may be suspended for a period not exceeding 2 years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the licensee has been guilty of

    any of the following:

    * * *

    (k) Having currently under suspension or revocation a license as a real estate broker or salesman, securities dealer

    or salesman, or insurance agent or having currently under suspension or revocation any other license which is required for any other profession or occupation which is regulated by this state, other states, or the government of the United States for the protection of the public, which suspension or revocation is based on fraud, misrepresentation, or deceit.

    
    

    (Emphasis added.) Under the statute, suspension of a real estate broker's license does not constitute grounds for suspending a mortgage broker license unless the basis of the suspension of the real estate broker license is fraud, misrepresentation, or deceit.

    
    

11. In this case, Petitioner, Department of Banking and Finance (Department), has not established in the evidentiary record or anywhere else in the official record of this case that the real estate broker license of Respondent, Terry E. Christensen (Christensen), was suspended based on fraud, misrepresentation, or deceit. As seen in the Procedural Background, Christensen sufficiently generally placed in issue whether suspension of his real estate broker's license was based on fraud, misrepresentation, or deceit. The Department did not succeed in pre-hearing procedures to specifically eliminate the issue. The facts stipulated by the parties are not sufficient to prove that the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit. Although a copy of the Administrative Complaint in the Florida Real Estate Commission case was referred to in the copy of the Florida Real Estate Commission Stipulation that was filed in this case, it was not attached to the Stipulation or otherwise made part of the evidentiary or official record in this case. This Hearing Officer is therefore given no choice but to conclude that the Department has not proven its case.

12. Having concluded that the Department has not proven its case, there is no need to address the question whether Section 494.05(1)(k), Florida Statutes (1985), should be interpreted to apply retroactively to Christensen. Cf. Larson vs. Independent Life & Accident Insurance Co., et al., 29 So.2d 448 (Fla. 1947); Hubbard vs. State, 411 So.2d 1312 (Fla. 1st DCA 1982); Heberle vs. P.R.O. Liquidating Co., 186 So.2d 280 (Fla. 1st DCA 1966).

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Banking and Finance, enter a final order dismissing the Amended Notice Of Intention To Suspend Or Revoke And Administrative Charges And Complaint against Respondent, Terry E. Christensen, in this case.

RECOMMENDED this 10th day of June, 1986, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 10th day of June, 1986.

COPIES FURNISHED:

John B. Root, III Assistant General Counsel Office of the Comptroller

400 West Robinson Street Suite 501

Orlando, Florida 32801

Gorham Rutter, Jr., Esquire Gorham Rutter, Jr., P.A.

338 N. Magnolia Avenue, Suite D Orlando, Florida 32801

Honorable Gerald Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32301

EXHIBIT 1

STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE

DEPARTMENT OF BANKING AND FINANCE,

Petitioner

vs. CASE No. 86-0328

TERRY E. CHRISTENSEN,

Respondent.

/

S T I P U L A T I O N

The Petitioner, DEPARTMENT OF BANKING AND FINANCE, by and through its undersigned counsel, and the Respondent, TERRY E. CHRISTENSEN, hereby stipulate and agree as to the following facts upon which the parties respectfully request the Hearing Officer herein to render his decision:

1. In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage solicitor until July 15, 1984.

   
   

2. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055.

   
   

3. That in August, 1984 and August, 1985 the Mortgage Broker's License of the Respondent was renewed by the DEPARTMENT OF BANKING AND FINANCE.

   
   

4. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00.

   
   

5. That to the knowledge of the Respondent, no complaints have been made to the DEPARTMENT OF BANKING AND FINANCE concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker.

   
   

6. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family.

   
   

7. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years.

   Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request for Judicial Notice filed in this cause and dated April 24, 1986.

8. The parties respectfully request the Hearing Officer to render his decision in this matter based upon the foregoing stipulated facts and in lieu of an evidentiary hearing.

DATED this 13th day of May, 1986.

JOHN B. ROOT, III, ESQUIRE GORHAM RUTTER, JR., ESQUIRE

Office of the Comptroller GORHAM RUTTER, JR., P.A.

400 W. Robinson St., Suite 501 338 N. Magnolia Ave., Suite D Orlando, Florida 32801 Orlando, Florida 32801

ATTORNEY FOR PETITIONER ATTORNEY FOR RESPONDENT

Telephone: (305) 423-5116 Telephone: (305) 841-7667

TERRY E. CHRISTENSEN, Respondent

EXHIBIT 1 STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE,

Petitioner,

vs. CASE NO. 0024293

TERRY E. CHRISTENSEN,

Respondent.

/ DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF

REAL ESTATE,

Petitioner, CASE NO. 0021931

vs.

TEC REALTY, INC. AND TERRY E. CHRISTENSEN,

Respondent.

/

S T I P U L A T I O N

Terry E. Christensen; TEC Realty, Inc. and Terry E. Christensen, (Respondents), and Department of Professional Regulation, (Department), hereby stipulate and agree to the issuance of a Final Order by the Florida Real Estate Commission (FREC), adopting and incorporating the provisions of this Stipulation in reference to the above-styled case.

STIPULATED FACTS AND CONCLUSIONS OF LAW

1. Respondent Terry E. Christensen is now a broker-salesman, but at times material herein was a licensed real estate broker in the State of Florida having been issued license number 0174505.

   
   

   Respondent TEC Realty, Inc. was at times material herein a licensed corporate real estate broker in the State of Florida having been issued license number 0212593. Its registration is now in "limbo".

   
   

2. Respondents admit that they are subject to the provisions of Chapters

   455 and 475, Florida Statutes, and therefore, subject to the jurisdiction of the Department and of the FREC.

   
   

3. Respondents admit that they have been served with the Administrative Complaint, copy attached, which charges the Respondents with having violated certain provisions of Chapter 475, Florida Statutes, (and the rules enacted pursuant thereto).

   
   

4. Respondents admit that the Administrative Complaint contains no disputed issues of material fact.

   
   

5. Respondents admit that the stipulated facts contained in the Administrative Complaint support a finding of the Real Estate Practice Act.

   
   

   STIPULATED DISPOSITION

   
   

6. Respondents shall not in the future violate Chapters 455 or 475, Florida Statutes, or the rules enacted pursuant thereto.

   
   

7. The licenses of Respondents and of each of them, shall be suspended for five (5) years; and Respondents shall pay a total fine of $500 which fine shall be paid by cashier's check or money order made payable to the Department of Professional Regulation, Division of Real Estate within thirty (30) days of the filing of the Final Order.

   
   

8. The action taken as reflected in the Final Order shall be published in the FREC News and Report Quarterly.

   
   

9. It is expressly understood that this Stipulation is subject to the approval of the Department and of the FREC, and this Stipulation has no force and effect until a Final Order has been issued and filed.

   
   

10. This Stipulation is executed by the Respondents for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondents authorize the FREC to review and examine all investigative file materials concerning Respondents prior to or in conjunction with the consideration of this Stipulation. Furthermore, should this Stipulation not be approved by the FREC, it is agreed that presentation to and consideration of

    this Stipulation and other documents and matters by the FREC shall not unfairly or unlawfully prejudice the Department, the FREC or any of its members from further participation, consideration or resolution of these proceedings.

    
    

11. Respondents and the Department fully understand that this Stipulation and resulting Final Order adopting and incorporating the provisions of this Stipulation shall in no way preclude any other disciplinary proceedings by the Department or the FREC against the Respondent for acts or omissions not specifically set forth in the attached Administrative Complaint.

    
    

12. Respondents expressly waive all notice requirements and right to seek judicial review of or to otherwise challenge or contest the validity and enforcement of this Stipulation and resulting Final Order of the FREC adopting and incorporating this Stipulation.

SIGNED this day of , 1983. (filed document undated)

SWORN TO AND SUBSCRIBED Respondents

before me this 9th Terry E. Christensen, individually, day of June, 1983. and as broker and officer of TEC

Realty, Inc.

Notary Public

My Commission Expires: Notary Public, State of Florida

My Commission Expires June 26, 1986 Bonded Thru Troy Fain Insurance, Inc.

Approved this 21st day of June, 1983. John Huskins, Staff Attorney

Department of Professional Regulation Legal Section

400 West Robinson Street, 308 Post Office Box 1900

Orlando, Florida 32802

(305) 423-6134

Approved this 13th Fred Roche, Secretary

day of June, 1983. Department of Professional Regulation

JH/dm 6/6/83

EXHIBIT 2

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs. CASE NO. 0024293

DOAH NO. 83-346

TERRY E. CHRISTENSEN and

TEC REALTY INC. CASE NO. 0021931 DOAH NO. 83-345

Respondents

/

FINAL ORDER

The Florida Real Estate Commission heard this case on June 21, 1983 upon a Proposed Settlement Agreement.

After considering this Agreement and being fully advised in the premises, the Commission ORDERS that the Settlement be accepted. A copy of this Settlement Agreement is attached hereto as Exhibit A and made a part hereof.

This Order shall be effective thirty (30) days from the date of filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 21st day of June 1983 in Orlando, Florida.

Howard C. Babcock, Jr., Chairman Florida Real Estate Commission

Docket for Case No: 86-000328

Orders for Case No: 86-000328