STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-4788

)

ROBERT R. HAMBLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 24, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: Arthur R. Shell, Jr., Senior Attorney

Department of Professional Regulation Legal Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

For Respondent: Robert R. Hambley, Pro Se

8404 Annwood Road

Largo, Florida 34647 STATEMENT OF THE ISSUES

The issue presented herein is whether or not Respondent's license should be disciplined because, as alleged, he failed to notify the Federal Housing Authority and a title company that sales commissions were being "kicked back" to non-licensed personnel; that a broker's business that Respondent was qualifier for was being operated contrary to statute and rules in that escrow funds were not placed in escrow accounts; and, in other instances, unlicensed persons were in complete control of the escrow and operating accounts of the broker's business and that real estate commissions were paid to unregistered real estate salesmen in violation of Subsections 475.25(1)(b) and (h), Florida Statutes (1987).

PRELIMINARY STATEMENT

By its Administrative Complaint filed September 28, 1987, Petitioner, Department of Professional Regulation, Division of Real Estate, charged Respondent in a 6-count Administrative Complaint with two violations of Subsection 475.25(1)(b) and (h), Florida Statutes. Thereafter, Respondent denied the allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Thereafter, the matter was set for hearing on

several occasions by Hearing Officers Diane Grubbs and K. N. Ayers based on on- going settlement negotiations between the parties which resulted in a rejection of a stipulation which was presented to the Commission by Order dated August 16, 1988. Petitioner again requested an abeyance in an effort to amicably resolve this matter before the Commission and an Order of Abeyance was entered by K. N. Ayers, Hearing Officer, on November 30, 1988, abating administrative proceedings herein through January 15, 1989. On January 26, 1989, an amended Notice of Hearing was forwarded to the parties scheduling this matter for hearing on March 24, 1989, and the hearing was held as scheduled. The parties were afforded leave through May 12, 1989, to submit proposed recommended orders which were filed and considered in preparation of this Recommended Order. Proposed findings not incorporated herein are the subject of specific rulings in an Appendix.

Based on my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings:

FINDINGS OF FACT

1. Respondent, Robert R. Hambley, is now and was at all times material hereto, a licensed real estate broker in Florida having been issued license number 0200892. The last license issued was as a broker, c/o Real Pro Associates, Inc., 10863 74th Avenue, North, Seminole, Florida 35542.

   
   

2. During times material, Respondent was an officer of and qualifying broker for Real Pro Associates, Inc. (Real Pro).

   
   

3. During 1987, it came to Petitioner's attention that Respondent was paying commissions to unlicensed salesmen through Real Pro Associates; that Respondent was not placing escrow and trust monies into escrow or other satisfactory depository accounts and that Respondent was failing to disclose to the purchasers, the Federal Housing Authority and the title and trust companies that escrow deposits were not made as set forth in sales contracts as required. Based on that information, Petitioner's Investigator, Edward J. P. Shea served a subpoena upon Stewart Fidelity Title Company and obtained the documentation of the last five sales transactions by Paul George (George), the owner of Real Pro. Stewart Fidelity Title Company also provided Investigator Shea with the sales contracts consummated by Paul George and the following sellers: William G. Summer, Harold G. Johnson, Windy J. Domke, Charles Stephens, Jr., and Ernest G. Sanchez. George is not licensed by Petitioner as a real estate salesman.

   
   

4. Each of the subpoenaed contracts represented that a $500 escrow deposit had been received and that the deposits were being held in Real Pro's escrow account. Real Pro's bank records revealed that no such deposits had either been received or placed in Real Pro's escrow account.

   
   

5. At the closing of each transaction, Respondent did not inform or otherwise disclose to Stewart Fidelity Title Company, which handled the closing for each transaction, that the stated $500 escrow deposits were never placed into an escrow account as stated in the purchase and sales contracts. Likewise, Respondent did not advise the Federal Housing Authority or Stewart Fidelity Company that Paul George was receiving more than 100% financing for each of the properties involved in the above-referred transactions. This information is significant because it alerts the lender that the purchaser has no equity position in the purchase in the form of a downpayment.

6. Of five transactions involving Paul George as buyer and seller, William

   G. Sumner, Harold G. Johnson, Charles and Helen Stephens, Ernest and Jane Sanchez, George received commissions in the amounts of $9,900, $7,900, $8,804 and $1,900.38.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to this action pursuant to subsection 120.57(1), Florida Statutes.

   
   

8. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

9. The Petitioner's authority is derived from Chapter 475, Florida Statutes.

   
   

10. Subsection 475.25(1) authorizes the commission to suspend a license or permit for a period not exceeding 10 years; revoke a license or permit or impose an administrative fine not to exceed $1,000 for each count or separate offense and may issue a reprimand or any or all of the foregoing if its finds that the licensee, permittee or applicant has engaged in violations of Chapter 475.25, Florida Statutes.

    
    

11. Respondent, by paying a commission to Paul George, an unlicensed broker, broker-salesman, or salesman, engaged in proscribed conduct within the purview of subsection 475.25(1)(a), Florida Statutes.

    
    

12. Respondent, as qualifying agent for Real Pro, by having failed to collect escrow funds and to supervise and manage the escrow accounts and payments of commissions arising from the operation of Real Pro business operations, engaged in culpable negligence and breach of trust in a business transaction in violation of subsection 475.25(1)(b), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Petitioner enter a Final Order:

1. Imposing an administrative fine against Respondent in the amount of

   $1,000 payable to Petitioner within thirty days of entry of the Final Order herein, and

   
   

2. Placing Respondent's license number 0200892 on probation for a period of one (1) year.

DONE and ENTERED this 5th day of July, 1989, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1989.

COPIES FURNISHED:

Darlene F. Keller Division Director Division of Real Estate

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32802

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street, Ste. 60

Tallahassee, Florida 32399-0729

Arthur R. Shell, Jr.

Senior Attorney

Department of Professional Regulation -- Legal Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

Robert R. Hambley, Pro Se 8404 Annwood Road

Largo, Florida 34647

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

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. 0155508

DOAH CASE NO. 87-4788

ROBERT R. HAMBLEY,

Respondent.

/

FINAL ORDER

On August 15, 1989, the Florida Real Estate Commission heard this case to issue a Final Order. Hearing Officer James E. Bradwell of the Division of Administrative Hearings presided over a formal hearing on March 24, 1989. On July 5, 1989, he 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.

However, upon a complete review of the record, the Florid Real Estate Commission finds that the Recommended Penalty should be rejected for the following reasons: The penalty recommended, of an administrative fine of $1000, is too lenient, considering that the Hearing Officer found (and so stated in his Recommended Order) that the Respondent repeatedly, i.e., at least five times, committed the same violations, to wit: paid commissions to one not duly licensed either as a real estate broker, broker-salesman or salesman. Also, the Hearing Officer found that the Respondent failed to collect and deposit into escrow funds which the Respondent represented as having received in the transactions described in the Recommended Order.

The Commission finds that these facts, as supported by the evidence and the Hearing Officers findings, constitute aggravating circumstances which support and justify imposition of a more severe penalty.

Additionally, the penalty of probation, recommended by the Hearing Officer, was not statutorily authorized at the time the violations were committed by the Respondent.

Therefore, for the reasons cited above, the Commission ORDERS that the real estate broker 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 s. 120.68, Florida Statutes, and to 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, Suite 309, 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 15th day of August, 1989 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to Robert R. Hambley, 8404 Annwood Road, Largo, Fl 34647; to Hearing Officer James Bradwell, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Fl 32399-1550; and to James Gillis, Esquire, DPR, Post Office Box 1900, Orlando, Fl 32802, this 22nd day of August, 1989.

Director

Docket for Case No: 87-004788

Orders for Case No: 87-004788