STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4352

)

JOHN R. MAXFIELD, )

)

Respondent. )

) DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4353

)

JOHN R. MAXFIELD, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above consolidated action was held on January 14, 1988, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: No appearance

BACKGROUND AND PROCEDURAL MATTERS

This proceeding involves two administrative complaints against Respondent, filed on June 22, 1987, and July 27, 1987. After the Respondent requested a formal hearing for both complaints, the cases were forwarded to the Division of Administrative Hearings and were consolidated in a sua sponte order entered on October 13, 1987.

After failing to respond to interrogatories and requests for admission, Respondent failed also to appear at the final hearing. Nevertheless,

Petitioner's motion to deem admitted and motion to relinquish jurisdiction were denied. During the pendency of the case, there was never an indication that Respondent was represented by counsel. Further, under the principle established in State ex rel Vining v. Florida Real Estate Commission, 281 So.2nd 487 (Fla.

1973) Respondent has the right to refuse to respond to admissions related to the elements of the charges and to require that Petitioner prove its case. While failure to appear at hearing could be deemed waiver of a formal proceeding, the better practice, in the absence of rules or other appropriate notice to licensees in disciplinary cases, is to require the agency to proceed with its proof of a prima facie case.

At the hearing, Department of Professional Regulation (DPR) presented the testimony of eleven witnesses and introduced twelve exhibits.

After hearing, no transcript was provided, but counsel for DPR submitted a proposed recommended order. The proposed findings of fact are substantially adopted herein, with the exception of dates in paragraph 4 and 6. However, the proposed order lists certain witnesses, who were not called to testify. Those individuals are: Carl Ossorio, Richard Davis and Marilyn Jones. It is apparent that their testimony would have been cumulative, but it is important to insure that the record is corrected.

On January 27, 1988, I received a message that John Maxfield had called with an inquiry as to the procedure for the next steps of the proceeding. I returned the call and told him that the time for presenting evidence had passed, but that he could present a written legal argument, with copy to opposing counsel. He was also told that he would receive a copy of my recommended order and the next step would be before the Board. He gave his mailing address as the same in the case file and did not argue that he never received notice; rather, he claimed to have put the hearing on the wrong date on his calendar.

To date, nothing in writing and no further telephone communications have been received.

ISSUE

The administrative complaints allege that John Maxfield failed to pay an appraiser for his work, he failed to maintain an office and sign at the address listed with the Florida Division of Real Estate, he failed to maintain trust funds in an escrow account, and he failed to release security deposits of tenants, in violation of Chapter 475, Florida Statutes and rules of the Florida Real Estate Commission.

The issue for determination is whether these violations occurred and, if so, what disciplinary action against Maxfield's license is appropriate.

FINDINGS OF FACT

1. At all times relevant to the complaint, John R. Maxfield, was licensed by the State of Florida as a real estate broker-salesman, with license number 0130663.

   
   

2. Michael Chambers is a real estate appraiser in Winter Park, Florida. Around August 1986, he was retained by Maxfield to conduct appraisals of some apartment complexes and a duplex. An associate of Maxfield's met Chambers at the property to give him access for the appraisals. After the appraisals were done, Maxfield failed to pick them up as he had agreed. Chambers went by the

   office listed on the business card given to him by Maxfield's associate, but could not find the office. He later found the office, but Maxfield's secretary did not have the payment for him. To date, Maxfield still has not paid the

   $600.00 appraisal fee, in spite of Chambers' several demands.

   
   

3. From 1983 or 1984, until October 1986, Maxfield was the trustee of a land trust with several investor beneficiaries. Hideaway Delaney Apartments in Orlando, Florida is a property owned by the trust.

   
   

   Maxfield was the manager of the property until October 1986. He was relieved of his duties when the beneficiaries learned that other trust property was being foreclosed.

   
   

4. While manager of the property, Maxfield received tenants' deposits through his agents, various resident managers.

   
   

   He never released those deposits to the trust beneficiaries, to the successor manager, John Capone Realty, or to the tenants, after he ceased serving as manager.

   
   

5. The total amount of unaccounted for security deposits is $2245.00.

   
   

6. In March 1987, in an interview with Maureen Harvey, a Division of Real Estate investigator, Maxfield admitted that he used the deposit money to off-set his own expenses.

   
   

   Earlier, in a civil action brought by some tenants seeking their deposits, Maxfield admitted that he owed the money and agreed to pay it.

   
   

7. The deposit money remains unpaid.

   
   

8. The administrative complaints allege that between October 1986 and March 1987, Maxfield failed to maintain an office and entrance sign at the business address he had registered with the Department of Professional Regulation. One complaint alleges the address as 103 Lucerne Circle, Orlando. The other complaint alleges the address as 203 Lucerne Circle, Suite 500, Orlando. Maxfield's license renewal forms indicate the address was 203 N. Lucerne Circle, Suite 500, Orlando.

   
   

   Assuming that the one complaint contained a typographical error, the testimony by DPR's witnesses did not clearly establish the dates they visited the premises and failed to find an office or sign. The investigator visited the address in April 1987, after the period alleged in the administrative complaints. Michael Chambers took photographs of the buildings on the site, much earlier in August 1986.

   
   

   As of June 1987, Maxfield's license renewal form lists his business address as Vistana Resort Development, Inc., 13500 State Road 535, Orlando, Florida.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding, pursuant to Sections 120.57(1) and 455.425(4), Florida Statutes.

   
   

10. Section 475.25, Florida Statutes provides that the Florida Real Estate Commission may suspend or revoke a license or impose an administrative fine for

    violations described within that section. The administrative complaints allege violations of subsections 475.25(1)(b), (d), (e) and (k), Florida Statutes.

    
    

11. Subsections 475.25(1)(b), Florida Statutes proscribes fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, and breach of trust in a business transaction.

    
    

12. Subsection 475.25(1)(d), Florida Statutes proscribes failure to account and deliver funds entrusted to a licensee.

    
    

13. Subsection 475.25(e), Florida Statutes and Rules 21V- 10.22 and 21V- 10.24, Florida Administrative Code, proscribe failure to maintain and office and sign at the business address registered with the Division of Real Estate.

    
    

14. Subsection 475.25(1)(k), Florida Statutes proscribes failure to maintain trust funds in an escrow bank account or other proper depository until disbursement is properly authorized.

    
    

15. With the exception of the charge relating to maintenance of an office and sign, the Department has met its burden of proving, by clear and convincing evidence, the charges of the administrative complaints.

    
    

16. Maxfield breached the trust of John Chambers in failing to pay for work which he requested and for which he was obligated.

    
    

17. Maxfield's mishandling of tenants' security deposits constituted clear violations of subsections, 475.25(1)(b), (d), and (k), Florida Statutes.

    
    

18. His admissions in court and to the agency investigator are competent evidence as well-established exceptions to the hearsay rule. See subsections 90.803(18), and 90.804(2)(c), Florida Statutes.

RECOMMENDATION

Based upon the foregoing, it is hereby

RECOMMENDED: that a Final Order be entered, finding John R. Maxfield guilty of violations of Sections 475.25(1)(b), (d), and (k), Florida Statutes, suspending his real estate license for three (3) years, and thereafter placing him on probation for a period of two (2) years, under appropriate conditions to be established by the board.

DONE AND RECOMMENDED this 26th day of February, 1988, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this day of February, 1988.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Professional

Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

John R. Maxfield

9100 Meadowcreek Drive #648

Orlando, Florida 32821

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Darlene F. Keller Executive Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE

Petitioner,

vs. CASE NO. 0154346

0154420

JOHN R. MAXFIELD DOAH NO. 87-4352 87-4353

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on May 17, 1988 to issue a Final Order. Hearing Officer Mary Clark of the Division of Administrative Hearings presided over a formal hearing on January 14, 1908. On February 26, 1988, she issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact and Conclusions of Law. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

The Exceptions filed by the Petitioner are accepted and are attached hereto as Exhibit B.

However, upon a complete review of the record, the Florida Real Estate Commission finds that the Recommended Penalty should be rejected for the following reasons: The penalty recommended is not within the guidelines of Chapter 475, Florida Statutes; and the penalty recommended is too mild for the severe and blatant violations of the Real Estate License Law, as further set forth in the Petitioner's Exceptions.

Therefore, for the reasons cited above, the Commission ORDERS that the real estate license of the Respondent be revoked.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Building 3O9, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 17th day of May 1988 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: John R. Maxfield, 9100 Meadowcreek Drive #648, Orlando, FL 32821; to Hearing Officer Mary Clark, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, FL 32399-1550; and to Steven Johnson, Esquire, DPR, Post Office Box 1900, Orlando, FL 32802, this 26th day of May, 1988.

Darlene F. Keller, Director

Docket for Case No: 87-004352

Orders for Case No: 87-004352