vs. ) CASE NO. 86-3602
ROBERT K. HUNTER and )
Respondents. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on January 9, 1987 in Jacksonville, Florida. The transcript was filed on January 21, 1987, and the parties requested 30 days thereafter to submit proposed findings of fact and conclusions of law. These were received and have been considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
For Petitioner: James R. Mitchell, Esquire
By Administrative Complaint filed on April 8, 1986, the Respondents are charged with violating Section 475.25(1)(b), Florida Statutes, prohibiting fraudulent, dishonest, or culpably negligent practices, or breach of trust in business transactions. Specifically, the complaint charges that the Respondents:
house by misrepresentation without any conveyance of title to the Gooderhams.
At the hearing, the Petitioner called as witnesses Roy Pitts, Ruby Pitts, Carole Ann Gooderham, Adria Hart and Allen Poucher. Petitioner's Exhibits 1-18 were received in evidence. The Respondents presented no witnesses and offered no exhibits in evidence.
At all times pertinent to the charges, Respondent Robert K. Hunter (hereinafter referred to as Respondent Hunter) was a licensed real estate broker in the State of Florida, holding license number 0135423, and Respondent Hunter was the owner, president and qualifying broker for Respondent Hunter Real Estate, Inc., a corporation registered as a real estate broker, holding license number 0157660.
Hunter Enterprises, Inc., is a corporation organized under the laws of the State of Florida. In 1982 and 1983, the principal officer was Respondent Hunter as president/director, In 1984 and 1985, Respondent Hunter was president, secretary and director. No other officers or directors are listed for the years 1984 and 1985. No annual reports have been filed for the year 1986.
In 1982, Roy Pitts went to Respondent Hunter for the purpose of investing some money with Respondent Hunter. Mr. Pitts was seeking a higher return on his money than he was currently receiving from a Federal Credit Union.
On or about April 22, 1982, Roy Pitts gave to Respondent Hunter the sum of $1,000. This $1,000 was to be invested in a program called Buy/Renovate.
Mr. Pitts received from Respondent Hunter a memorandum dated April 22, 1982, acknowledging receipt of the $1,000 from Mr. Pitts. Although this memorandum is on the stationery of Hunter Enterprises, Inc., Respondent Hunter signed it in his individual capacity.
The Buy/Renovate program was an investment program whereby a house would be purchased, renovated, and then sold. Mr. Pitts was to receive back his original investment plus half of the net profit from the sale of the house.
On or about April 30, 1982, Roy Pitts gave to Respondent Hunter the sum of $4,000 to be invested in the Buy/Renovate program. Mr. Pitts received from Respondent Hunter a memorandum dated April 30, 1982, acknowledging receipt of the $4,000 from Mr. Pitts. Although this memorandum is also on the stationery of Hunter Enterprises, Inc., Respondent Hunter signed it in his individual capacity.
On or about May 3, 1982, Roy Pitts gave to Respondent Hunter the sum of
$9,687.70 to be invested in the Buy/Renovate program. The total sum to be invested was $10,000, but because Mr. Pitts withdrew the money early from his credit union he sustained an early withdrawal penalty. The balance of the
$10,000 was to be made up by Respondent Hunter. Mr. Hunter received from Respondent Hunter a memorandum dated May 3, 1982, acknowledging receipt of
$10,000 from Mr. Pitts, and detailing the Buy/Renovate program.
On or about May 3, 1982, Roy Pitts also gave to Respondent Hunter the sum of $9,687.70 to be invested in an interest only investment program. Again, the total sum to be invested was $10,000, but due to the early withdrawal of the
money from his credit union Mr. Pitts sustained another penalty. The balance of this $10,000 was also to be made up by Respondent Hunter. Mr. Pitts received from Respondent Hunter another memorandum dated May 3, 1982, acknowledging receipt of this $10,000 from Mr. Pitts, and detailing the interest only program.
The interest only program involved the investment of funds in a program which would yield interest daily at the rate of 18 percent per year.
Pursuant to a request by Mr. Pitts, Respondent Hunter reported to Mr. Pitts in an accounting statement that as of August 15, 1984, the investment profit was $9,294.66.
The interest only program was to terminate and the principal plus interest was to be paid to Mr. Pitts at his request.
The investment in the Buy/Renovate program was to last 90-120 days.
Mr. Pitts allowed the Buy/Renovate program to run beyond the 90-120 days, but in the first part of 1985 Mr. Pitts requested that Respondent Hunter return to him the total he had invested, amounting to $25,000, plus his interest or profits. Respondent Hunter told Mr. Pitts that he would deliver to Mr. Pitts his money by May 5, 1985.
Respondent Hunter did not return any money to Mr. Pitts by May 5, 1985, as promised.
Subsequent to May 5, 1985, but still in 1985, Mrs. Pitts also requested that Respondent Hunter return the money. Respondent Hunter told Mrs. Pitts he would return the money in three weeks. Respondent Hunter failed to deliver any money to the Pitts.
Finally, in June, 1985, Mr. Pitts retained attorney Allen Poucher for the purpose of seeking the return of his money from Respondent Hunter.
On behalf of Mr. Pitts, attorney Poucher has made a demand on Respondent Hunter for the return of the money, and has filed a civil suit against Respondent Hunter seeking to recover the funds.
To date, Respondent Hunter has not delivered to Mr. Pitts any of his
$25,000 investment, or any of the interest or profits from the investment, nor has Respondent Hunter made any accounting to Mr. Pitts since the accounting which was made as of August 15, 1984, detailing an investment profit of
$9,294.66.
Mr. and Mrs. Gooderham entered into an agreement with Respondent Hunter whereby the Gooderhams would exchange their house with a house owned by Respondent Hunter. The Gooderhams were to receive title to Respondent Hunter's house, and Respondent Hunter was to receive title to the house owned by the Gooderhams.
Pursuant to this agreement, Respondent Hunter tendered to the Gooderhams a check for $10,000. At the same time, Respondent Hunter had the Gooderhams execute what the Gooderhams believed to be a receipt for this money. Instead, it was a deed to their house.
Recorded in the official records of Clay County is a warranty deed at Official Record Book 812, pages 328 & 329, conveying the property owned by the
Gooderhams, to Respondent Hunter. Mrs. Gooderham did not intend to sign a deed conveying her property to Respondent Hunter until she and her husband could exchange deeds to both of the properties with Respondent Hunter. Mrs. Gooderham recognizes the bottom portion of the warranty deed conveying her property to Respondent Hunter, and this bottom portion is what she believed to be her receipt for the money paid to her by Respondent Hunter.
Following their receipt of the $10,000 from Respondent Hunter, the Gooderhams moved into the property owned by Respondent Hunter as agreed.
Although the Gooderhams have deeded their house to Respondent Hunter, apparently without their knowledge, Respondent Hunter has failed to convey to the Gooderhams his house pursuant to the terms of their agreement for exchange of properties. Instead, by deed executed on September 1, 1985, Respondent Hunter conveyed his house to Doctors Investment Service, Inc.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes.
Section 475.25(1), Florida Statutes, authorized the Florida Real Estate Commission to suspend a real estate license for a period not exceeding 10 years, revoke a license, impose an administrative fine not to exceed $1,000 for each count or separate offense, and issue a reprimand, if it finds a licensee:
(b) Has been guilty of fraud, mis- representation, concealment, false promises, false pretenses, dis- honest dealing by trick, scheme, or device, culpable negligence,
or breach of trust in any business transaction.
The findings detailed above demonstrate that Roy Pitts entrusted to Respondent Hunter a total of $25,000, of which $15,000 was to be invested in a Buy/Renovate program and $10,000 in an interest only program. Mr. Pitts has made numerous demands on Respondent Hunter for the return of his $25,000, plus interest or profits, and, Respondent Hunter has promised to return this money on at least two separate occasions. However, respondent Hunter has not repaid any money to Mr. Pitts, although the Buy/Renovate program was to expire in 90-120 days, and the money invested in the interest only program was due upon demand.
The findings detailed above further demonstrate that Respondent Hunter entered into an agreement to convey a house he owned to Mr. and Mrs. Gooderham in exchange for the conveyance by the Gooderhams of their house to Respondent Hunter. Mr. and Mrs. Gooderham have conveyed their house to Respondent Hunter, but to date Respondent Hunter has failed to convey his house to the Gooderhams as he agreed.
Respondent Hunter contends that he was not dealing with Roy Pitts or with Mr. and Mrs. Gooderham as a licensed broker, but as president of Hunter Enterprises, Inc., which does not hold any real estate license. However, the exhibits in evidence reflect that Respondent Hunter did not act as an officer of Hunter Enterprises, Inc., in his dealings with the Pitts and the Gooderhams, but that he acted in his own individual capacity instead. Moreover, it is evident
that both Mr. Pitts and the Gooderhams were dealing with Respondent Hunter in his individual capacity and not as a real estate broker or as an officer of Hunter Enterprises, Inc. Nevertheless, a registered real estate broker may be disciplined not only for dishonest conduct in transactions in which his only interest is as a broker, but also for such conduct in his own personal business affairs. LaRossa v. Department of Professional Regulation, Division of Real Estate, 474 So.2d 322 (Fla. 3d DCA 1985); Sellars v. Florida Real Estate Commission, 380 So.2d 1052 (Fla. 1st DCA 1980).
The conduct of Respondent Hunter in the transactions with Roy Pitts and with Mr. and Mrs. Gooderham, as detailed above, constitutes fraud, misrepresentation, false promises, dishonest dealing by trick, scheme or device, and breach of trust in these business transactions. Therefore, Respondent Hunter should be found guilty as charged in the Administrative Complaint.
However, none of the findings detailed above were within the scope of activities of Respondent Hunter Real Estate, Inc., and there was no evidence presented against this corporate broker. Thus, the charges in the Administrative Complaint against Hunter Real Estate, Inc., should be dismissed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that license number 0135423 held by the Respondent Robert K.
Hunter, be revoked, and the charges against Respondent Hunter Real Estate, Inc., be dismissed.
THIS RECOMMENDED ORDER entered this 10th day of March, 1987 in Tallahassee, Leon County, Florida.
WILLIAM B. THOMAS
Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3602
The following constitute rulings on the proposed findings of fact submitted by' the parties.
Proposed findings of fact submitted by Petitioner: 1-23. Accepted and incorporated herein.
24. First sentence accepted and incorporated herein.
Second sentence accepted as proved, but is unnecessary to a decision.
1-2. Accepted and incorporated herein.
7-9. Rejected because contrary to the weight of the evidence.
James R. Mitchell, Esquire Post Office Box 1900 Orlando, Florida 32802
Lacy Mahon, Jr., Esquire 1120 Blackstone Bldg.
Wings S. Benton, Esquire
Harold R. Huff Director
