STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-2272

)

KEVIN S. HAWKINS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on October 25, 1988, in Vero Beach, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings, substituting for Hearing Officer Joyous D. Parrish, to whom the case was originally assigned.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

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

For Respondent: John Joseph McHugh, Esquire

333 17th Street, Suite U Vero Beach, Florida 32960

ISSUE

By a four count Administrative Complaint, Petitioner alleges that Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Section 475.25(1)(b), F.S.; guilty of having failed to account and deliver advance fees in violation of Section 475.452, F.S. and therefore in violation of Section 475.25(1)(e), F.S.; guilty of having failed to maintain trust funds ($22,066.25) in the trust account or some other proper depository until disbursement thereof was properly authorized in violation of Section 475.25(1)(k), F.S.; and having violated the provisions of a prior Final Order of the Florida Real Estate Commission in violation of Section 475.25(1)(e), F.S.

BACKGROUND, PROCEDURE, AND PRELIMINARY STATEMENT

All of the allegations of the Administrative Complaint herein arise from Respondent's performance under a prior settlement Stipulation and resultant Final Order of the Florida Real Estate Commission, requiring, among other matters, restitution by Kevin S. Hawkins, Respondent herein.

Although the Department of Professional Regulation (DPR) initiated the instant proceeding by the above-referenced four count Administrative Complaint which had been referred to the Division of Administrative Hearings for evidentiary hearing pursuant to Section 120.57(1), F.S., DPR then moved to relinquish jurisdiction to the Florida Real Estate Commission upon grounds that the Stipulation in the prior case covered the contingency of non-performance of the required restitution and further provided, under such circumstances, for Respondent's appearance by informal hearing before the Commission. The prior Hearing Officer on the case denied that motion by an order entered June 2, 1988.

At formal hearing, DPR renewed its motion to relinquish jurisdiction which the undersigned took under advisement for resolution within this Recommended Order. The motion is here denied and the reasons there for are addressed within the Conclusions of Law, infra.

At formal hearing, Respondent's responses to Petitioner's Request for Admissions were recognized without objection. In anticipation that there might be no transcript, these admissions were admitted as Petitioner's Exhibit 1, for clarity of the record.

Petitioner presented the oral testimony of Respondent Kevin S. Hawkins, James Mitchell, and Frederick Wilsen, and had eight exhibits admitted into evidence. Respondent presented the oral testimony of Margaret Tripp and Grant Bartells and testified on his own behalf. Respondent had four exhibits marked for identification, none of which were admitted in evidence.

A transcript of the proceedings has been provided, and each party has submitted proposed findings of fact and conclusions of law outside the 10 day period stipulated/imposed at formal hearing. Because each party's proposals were late-filed and since each party filed formal proposals prior to completion of this Recommended Order, the respective proposals have been considered by the undersigned and the findings of fact therein are ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), F.S. Likewise, the undersigned has not sua sponte struck Petitioner's proposals due to their submittal on the wrong size paper, in violation of Rule 22I-6.003(8), F.A.C.

FINDINGS OF FACT

1. Petitioner Department of Professional Regulation, Division of Real Estate is the state 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 and Chapters 120, 455, and 475, F.S., 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 0200419 in accordance with Chapter 475, F.S.

   
   

3. The last license issued to Respondent was issued as a nonactive broker with a home address of P.O. Box 650488, Vero Beach, Florida 32965.

   
   

4. The Florida Real Estate Commission rendered a Final Order filed April 24, 1987 which adopted a Stipulation entered into by the Respondent and the Commission.

5. The Stipulation was drafted by Respondent's prior attorney and Mr. Mitchell, who at that time was the attorney for the Department of Professional Regulation, Division of Real Estate (DPR). The Stipulation terminated prosecution of Respondent on several cases by the DPR. Mr. Mitchell acknowledged that as DPR attorney he was the prime draftsman of the Stipulation, and that the restitution contemplated therein was a pro rata return of all time share auction monies held by Respondent or Resort Condominium Resales, a company owned and controlled by the Respondent, which company had also been named as a Respondent in the previous cases resulting in the Stipulation, but that full repayment to each investor of all monies invested by him/her with Respondent or with Respondent's company was never contemplated by the terms of the Stipulation.

   
   

6. The Stipulation, in pertinent part being paragraph 7 provided as follows:

   
   

   Respondents agree to make restitution to all owners entitled to restitution of those advance fees being maintained by the Respondents.

   
   

   The Respondents shall make restitution within six (6) months of the filing of the Final Order of the Stipulation.

   
   

   Should restitution not be made as agreed herein, the Respondent shall appear before the Florida Real Estate Commission at a Section 120.57(2), F.S. informal hearing for the violation of failing to abide by a lawful order of the Commission pursuant to Section 475.25(1)(e), F.S.

   
   

7. The Stipulation contained no mention of any specific amount of restitution to be made and the DPR staff in general had no prior experience with the handling of time share auction cases of similar nature, so in order to facilitate and ensure the Respondent's compliance with the Stipulation/Final Order, DPR provided an investigator, Grant Bartells, to monitor the Respondent's efforts at compliance.

   
   

8. DPR and its several attorneys interpreted the Stipulation/Final Order to require that a bank account of several commingled funds totalling upwards of

   $300,000 should be reduced to a zero balance by October 25, 1987. Contrariwise, Respondent and the DPR investigator, Bartells, interpreted it to mean that by that date all restitution checks should be mailed out to those persons who had been determined by Respondent and Bartells to be owed any restitution.

   
   

9. Mr. Bartells and an associate travelled to Respondent's office in Vero Beach and spent several days going over his books. Respondent provided Margaret Tripp to assist them in their review of his affairs. Approximately, May 31, 1987, the sum of $211,357.81 was agreed between Bartells and his associate and Respondent to be the opening or beginning balance of funds available from auction proceeds for purposes of the agreed pro rata restitution of advance fees. In reaching this amount, Bartells subtracted the amounts owed by Respondent for the expenses attendant upon holding two time share auctions he had held previously. The Administrative Complaint herein does not address this use of the funds, and, indeed, Mr. Mitchell and Mr. Wilsen conceded that it was

   appropriate for Bartells and the Respondent to have made such a deduction before commencing the restitution process.

   
   

10. The Respondent issued or caused to be issued between June 22, 1987 and July 28, 1987 approximately 715 checks as pro rata restitution to investors. Before this was done, the DPR investigators checked, reviewed, and audited the amounts. Although this check, review, and audit were not of the same quality as a certified public accountant might have performed, and although Mr. Bartells relied in large part on the cooperation and candor of Respondent and Miss Tripp to show him the account these monies were from and to explain the amounts, nature, and sources of those monies, Bartells' methods were in accord with DPR standard operating procedure for analogous cases.

    
    

11. On or about June 22, 1987, the Respondent also issued or caused to be issued and delivered check #1136 in the amount of $21,647.25 made payable to Resort Condominium Resales. On or about June 26, 1987, the Respondent also issued or caused to be issued and delivered check #1137 in the amount of $419.00 also made payable to Resort Condominium Resales. Before making these payments/withdrawals against the $211,357.81 res established by consent and cooperation between the DPR investigators and Respondent, the Respondent represented orally to Mr. Bartells that the amounts reflected in the two checks were earned commissions and asked what he should do with them. It was Respondent's position that these amounts had been inadvertently and improperly commingled in the restitution account as part of the $211,357.81 when they should not have been because they were never part of the time share auction deposit proceeds (advance monies).

    
    

12. Mr. Bartells responded, "If you had a deal and a contract and it is completed; both parties are satisfied, I don't see how anybody can tell you you can't take your commissions but you never should have put them in there." Mr. Bartells readily admitted that he had no actual, explicit authority delegated by DPR or the Commission to render legal opinions, but every element of this case bespeaks his apparent authority to bind the agency in all matters regarding the restitution process. In reliance on Mr. Bartells' statement and apparent authority, Respondent paid to his company the two checks totalling $22,066.25.

    
    

13. Except for the testimony of Mr. Mitchell that in drafting the original Stipulation he did not contemplate that any monies would be taken out of the escrow account or otherwise retained for Respondent's use, there is no record evidence to suggest that the total $22,066.25 was not earned commissions as represented by Respondent. At the time of entering into the Stipulation, no one totalled what was in the Respondent's existing account which started at upwards of $600,000, and in the course of drafting the Stipulation, there was never any discussion as to the amount of money remaining in the account. In the course of the restitution process, the monitor for DPR, Mr. Bartells, relied largely on Respondent's representations, and no one from DPR reviewed any underlying documentation of the amounts and accounts voluntarily offered up by Respondent. No one at DPR seems to have questioned how $600,000 became $300,000, and the further reduction to a starting figure of $211,357.81 was both contemplated by the original Stipulation and was retroactively authorized by Mitchell's and Wilsen's testimony at formal hearing. Although Mr. Mitchell conceded that the Respondent would be entitled to any commissions the Respondent had earned, Mitchell did not find the Respondent's representations to be credible. Because the prior cases against Respondent which had been settled by the Stipulation/Final Order had included counts involving failure to account for funds, Mitchell did not believe that the two check amounts Respondent paid to his company were, in fact, Respondent's earned commissions on purchase money.

    However, Respondent's testimony that he created the $211,357.81 reimbursement account in question after the Stipulation/Final Order was entered into and accidently commingled the funds then in his haste to comply with the Stipulation/Final Order is credible and unrefuted. The foregoing finding in no way reflects unfavorably on Mr. Mitchell's credibility, but never having audited or had hands-on experience with the specific monies, as did Bartells and Respondent, Mitchell's impressions alone cannot refute the fact evidence of the other witnesses. Mitchell merely felt that these amounts constituted advance monies which were covered by the restitution Stipulation, but there is no clear, affirmative proof that such is, in fact, the case.

    
    

14. At some point before or after October 24, 1987 (six months after the Final Order), Respondent learned that some of the checks which he had sent to parties who had been determined to be entitled to pro rata restitution had not cleared the bank. Some checks were returned to Respondent as unclaimed mail; some were not returned but nonetheless never were cashed. As of February 23, 1988, the balance in the account established for restitution remained at

    $10,079.33, so Respondent, in responding to DPR inquiries, requested the assistance of the DPR by two letters of that date.

    
    

15. The tone of these letters suggests nothing other than an effort on Respondent's part to comply with the spirit of the Stipulation and Final Order. For instance, in one letter he states:

    Please find my statement regarding compliance with paragraph 7e.

    
    

    Current balance is 10,079.33. I'll await directions as how you want me to handle these funds.

    
    

    Enclosed you'll find the restitution records your [sic] asked for.

    
    

16. In the other letter, the Respondent states:

    
    

    All checks were mailed & some did not get delivered. I complied with the stipulation to the best of my ability. I would like to turn the remaining funds over to the state and be done with this matter, as I am know [sic] longer acting as a salesman or broker, and have found employment elsewhere.

    
    

17. The Stipulation is silent as to what Respondent should do under the circumstances. Mr. Mitchell acknowledged that no discussions preliminary to the drafting of the Stipulation either covered or anticipated that mailed checks might be returned to the Respondent.

    
    

18. Respondent telephoned the Commission requesting information as to what to do with the $10,079.33 and was given no definitive answer.

    
    

19. Respondent did not request an informal hearing before the Commission because he believed he had made complete pro rata restitution under the terms of the Stipulation/Final Order (see Findings of Fact 6-8, supra), and because he feared that under the terms of the Stipulation/Final Order making a request for an informal hearing before the Commission would constitute an admission that he

    had "violated" the Stipulation by "failing to abide by a lawful order of the Commission."

    
    

20. Frederick Wilsen, Senior DPR attorney, described himself as "in a quandary" over what to do when he received the Respondent's letters since an informal hearing before the Commission had not been requested and since the account was not reduced to zero. Therefore, the Administrative Complaint herein was initiated.

CONCLUSIONS OF LAW

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

   
   

2. The Motion to Relinquish Jurisdiction has been denied. That motion, and the instant Administrative Complaint, must ultimately rise or fall upon interpretation of the terms of the Stipulation/Final Order, because the parties have arrived at different understandings of the word "restitution" as used therein, different understandings of the time for restitution as contemplated therein, and different understandings as to the conditions under which the Respondent must submit to an informal hearing before the Commission so as not to be in violation of the Stipulation/Final Order.

   
   

3. It is an ancient maxim of the law that the terms of an agreement must be construed most strongly against the party who has drafted it. This is particularly so where there is ambiguity, be it latent or patent ambiguity. See, Finberg v. Herald Fire Ins. Co., 455 So.2d 462 (Fla. 3d DCA 1984), Finlayson v. Broward County, 471 So.2d 67 (Fla. 4th DCA 1985), Belen School, Inc. v. Higgins, 462 So.2d 1151 (Fla. 4th DCA 1984), Bonar v. Barnett Bank of

   Jacksonville, 488 F.Supp. 365 (Fla. 1980), Hurt v. Leatherby Ins. Co., 380 So.2d

   432 (Fla. 1980), Sol Walker & Co. v. Seaboard Coast Line R. Co., 362 So.2d 45 (Fla. 2d DCA 1978), MacIntyre v. Green's Pool Service, Inc., 347 So.2d 1081 (Fla. 3d DCA 1972), American Agronomics Corp. v. Ross, 309 So.2d 582 (Fla. 3d DCA 1975), Tannen v. Equitable Life Ins. Co. of Washington D.C., 303 So.2d 352 (Fla. 3d DCA 1974), Bouden v. Walker, 266 So.2d 353 (Fla. 2d DCA 1972), Gilbert

   v. American Cas. Co. of Reading Pa., 219 So. 84 (Fla. 3d DCA 1969), Travelers Indem. Co. v. Washington Federal Sav. & Loan Ass'n of Miami Beach, 214 So.2d 492 (Fla. 3d DCA 1968), Watson v. Poe, 203 So.2d 14 (Fla. 4th DCA 1967), Niagara Therapy Mfg. Corp. v. Niagara Cyclo Massage of Miami Inc., 196 So.2d 474 (Fla. 3d DCA 1967), Storz Broadcasting Co. v. Courtney, 178 So.2d 40 (Fla. 3d DCA 1965), Allegheny Mut. Cas. Co. v. State, 176 So.2d 362 (Fla. 2d DCA 1965), Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964), Bacon v. Karr, 139 So.2d 166 (Fla. 2d DCA 1962), Florida State Turnpike Authority v. Industrial Const. Co., 133 So.2d 115 (Fla. 2d DCA 1961), Lindquist v. Burklew, 123 So.2d 261 (Fla. 2d DCA 1960), Greenfield v. Millman,

   111 So.2d 480 (Fla. 3d DCA 1959), State ex rel Guardian Credit Indem. Corp. v. Harrison, 74 So.2d 371 (Fla. 1954), New York Life Ins. Co. v. Kincaid, 186 So. 675 (Fla. 1939).

   
   

4. In the instant case, the DPR's position that an informal hearing was mandated if restitution was not made for any reason, is not reflected in the specific language of the Stipulation itself. The time in which restitution was to be completed is also ambiguous because the word "restitution," as used in the Stipulation, is clearly subject to at least two interpretations. Even DPR's Senior Attorney was in a "quandary" as to how to proceed when there was no request for an informal proceeding before the Commission. Respondent's fear

   that by requesting an informal hearing he would be unable to assert his interpretation of the ambiguous term, "restitution" was entirely reasonable. Moreover, Respondent was reasonable in his failure to request an informal hearing before the Florida Real Estate Commission because he disputed the DPR's concept that he had violated the intent or direction of the Stipulation/Final Order. He therefore had no reason to submit himself to such a hearing on a stipulated "fact" of "violation." The Stipulation, totally adopted by the Final Order, may be interpreted as a contract. Peripherally, it may be noted that, "A phrase in a contract is 'ambiguous' when it is uncertain of meaning and must be determined as an issue of fact," Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982). Pursuant to the organic law of the statute, a request for a Section 120.57(2), F.S. informal hearing is inappropriate where material facts are in dispute.

   
   

5. As to the charges contained in the Administrative Complaint, Section 475.25(1), F.S. provides for discipline where it has been established that the Respondent has

   
   

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

   
   

   (e) Has violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455. (Emphasis supplied)

   
   

   (k) Has failed, if a broker, to immediately place, upon receipt, any money, fund, deposit, check, or draft entrusted to him

   by any person dealing with him as a broker in escrow with a title company, banking institution, or savings and loan association located and doing business in this state, or to deposit such funds in a trust or escrow account maintained by him with some bank or savings and loan association located and doing business in this state, wherein the funds shall be kept until disbursement thereof is properly authorized; or has failed, if a salesman, to immediately place with his registered employer any money, fund, deposit, check, or draft entrusted to him by any person dealing with him as agent of his registered employer. The commission shall establish rules to provide for records to be maintained by the broker and the manner in which such deposits shall be made.

   
   

6. Petitioner has twice charged Respondent with violations of Subsection 475.25(1)(e), once with regard to violating a Final Order and once by engrafting an alleged violation of Section 475.452 F.S. (a provision of Chapter 475 F.S.) thereon, which states, in pertinent part, as follows:

   1. It is unlawful for any broker to contract for or collect any advance fee for the listing of real property from any principal without depositing 75 percent of such amount, when collected, in a trust account with a bank or other recognized depository. Such funds shall be held as trust funds and may not be commingled with the funds of the broker who has collected the fee. Prior to the withdrawal of any fees from the trust account, the broker shall furnish a statement to the principal itemizing how the advance fees are to be expended and the amount thereof. Amounts may be withdrawn for the benefit of the broker only when actually expended for the benefit of the principal or 5 days after verified accounts have been mailed to the principal. If the listed property is not sold within the period of time specified in the broker's contract or within 18 months after the contract date, whichever period is shorter, any funds held by the broker in the trust account shall be refunded to the principal, together with a final accounting relating to any or all funds expended by the broker.

      
      

7. The burden of proof to establish these charges by clear and convincing evidence is upon the Petitioner in professional license disciplinary proceedings, Ferris v. Turlington, 410 So.2d 292 (Fla. 1987), Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977), Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla., 2d DCA 1966).

   
   

8. Fraud, misrepresentation, breach of trust, et cetera, pursuant to Section 475.25(1)(b), F.S. has not been established herein.

   
   

9. The Respondent fully cooperated with the DPR investigator and in fact timely mailed out all monies mutually determined to be due as advanced monies. The $22,066.25 taken by Respondent as commission monies was taken upon the apparent authority of a DPR agent, and DPR, Mr. Bartells' principal, is bound by its agent's acts in that it overtly established the agent's apparent authority in every possible way and further acquiesced in many of his acts.

   
   

10. Since it was not established that the $22,066.25 constituted "advanced fees," it naturally follows that Respondent cannot be found guilty of failure to account and deliver advance fees with regard to that amount. It is clear, however, based upon the Respondent's own testimony, that this amount was inadvertently commingled by him with advance fees, so the question arises of what type of accounting was required of Respondent, under the circumstances. Respondent sought guidance from Bartells, the agent for DPR, and followed his instructions with regard to disbursement of the real estate completed sale commissions. There is no proof the Respondent accounted to the principals for this amount, but there is no proof he did not. Assuming, but not deciding, for

    purposes of the instant order that he did not account to the principals, he nonetheless provided an accounting to DPR.

    
    

11. In Golub v. Department of Professional Regulation, 450 So.2d 229 (Fla. 5th DCA 1984), rev. den. 459 So.2d 1040 (Fla. 1984), the court indicated that the escape clause in Section 475.25(1)(d), F.S., requiring real estate licensees to account and deliver held property, which provision must be utilized to avoid accounting and delivery when the licensee is in doubt as to the entitlement of anyone demanding accounting or delivery, relates only to conflicting claims to escrowed property, not contested commission fees. This case is instructive, even though Respondent is charged under Sections 475.25(1)(e) and 475.452 and is not charged under Section 475.25(1)(d), F.S.

    
    

12. With regard to the $10,079.33 which by agreement constituted actual "advance fees" and which remains in the account at the present time, Respondent provided exhaustive accounting information to the DPR.

    
    

13. Accordingly, Respondent has not violated Sections 475.452 and 475.25(1)(e) or Section 475.25(1)(k), F.S.

    
    

14. Also, with regard to Section 475.25(1)(e), Respondent has not been proved to have violated a lawful order of the Commission.

    
    

15. On paper, Respondent's account zeroed out within six months as required by both parties' interpretation of the Stipulation/Final Order. At some point, Respondent became aware that $10,079.33 had not physically cleared the account due to factors beyond his control. From DPR's viewpoint, Respondent should have then admitted he still had money in the account and that simply having the money in the account, through no fault of his own, constituted failure to reimburse and thus a violation of the Final Order. Because the Stipulation was silent as to a definition of "reimbursement" that word and its time limits were subject to a variety of interpretations which necessitated a formal hearing. Because DPR and the Commission declined to advise Respondent what to do to effect "reimbursement" within their interpretation of that term and eventually contested the classification of the $22,066.25 as "earned commissions," Respondent was entitled to petition for formal evidentiary hearing pursuant to Section 120.57(1), F.S. Petitioner has failed to establish that Respondent violated the provisions of a Final Order of the Real Estate Commission either by failing to make restitution or by failing to request an informal hearing before the Commission.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a Final Order dismissing the four counts of the Administrative Complaint against Respondent and including an advisory paragraph, as is appropriate within its agency expertise, setting forth a method for Respondent to follow in disbursing the

$10,079.33 balance of the account.

DONE and RECOMMENDED this 19th day of December, 1988, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 19th day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2272

The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to Section 120.59(2), F.S.

Petitioner's PFOF

1-11 Accepted, but not necessarily adopted. Where not adopted, the proposals have been modified to eliminate subordinate and unnecessary material.

12-13 Address mixed questions of law and fact as set forth in the COL of the Recommended Order, and are rejected in part as conclusions of law (COL), not findings of ultimate fact. To the extent they may contain any assertion of fact over law they are rejected as not supported by the greater weight of the record evidence as a whole. See all FOF and COL.

Respondent's PFOF

1 Covered in the introductory material. 2-3 Accepted.

4-6 Accepted except where subordinate and unnecessary.

1. Addresses a mixed question of law and fact as set forth in the RO's COL, and is rejected in part as a COL, not a finding of ultimate fact. To the extent it contains assertions of fact over law, it is accepted as modified within the Recommended Order (RO) so as to conform to the greater weight of the credible record as a whole.

2. Accepted as modified in FOF 11 to reflect an ambiguity in the record.

3. Rejected as a COL or mere argument of counsel; also cumulative

4. Rejected as a COL; covered in the COL of the RO.

11-15, and 17-20 Except where accepted within the RO, these proposals are rejected as subordinate, unnecessary, and/or cumulative.

16 Accepted.

21-22 Rejected as merely argument of counsel or recitation of testimony.

COPIES FURNISHED:

Darlene F. Keller, Executive Director Florida Real Estate Commission

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

James H. Gillis, Esquire

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

John Joseph McHugh, Esquire 333-17th Street, Suite U Vero Beach, Florida 32960

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

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. 0157830

0157894

KEVIN S. HAWKINS, DOAH NO. 88-2272

Respondent.

/

FINAL ORDER

On April 18, 1989, the Florida Real Estate Commission heard this case to issue a Final Order.

Hearing Officer Ella Jane P. Davis of the Division of Administrative Hearings presided over a formal hearing on October 25, 1988. On December 19, 1988, she issued a Recommended Order. A copy of this Recommended Order is

attached hereto as Exhibit A and made a part hereof, The Petitioner filed Exceptions to the Recommended Order.

After hearing argument of counsel and being otherwise advised in the premises, the Commission ORDERS:

1. That Petitioner's Exceptions to the Hearing Officers Finding of Fact #17 and Conclusion of Law be rejected, as they are not supported by the evidence in the record which, on the other hand, clearly supports the Hearing Officers Findings and Conclusions.

   
   

2. That the Hearing Officers Findings of Fact, Conclusions of Law and Recommendation for the dismissal of all four counts of the Administrative Complaint be, and they are hereby, accepted and adopted by the Commission. Therefore, the Administrative Complaint is hereby dismissed.

   
   

3. That, pursuant to the Hearing Officers Recommendation and with the Respondents agreement and consent verbally manifested at the hearing, the following procedure will be followed by the Respondent concerning the funds amounting to $9,560.51 presently held by the Respondent in escrow, in connection with the instant case.

   
   

   1. The Respondent shall file with the Commission a statement reflecting the amounts of the checks and the names and addresses of the payees who purportedly have received the reimbursement checks but who have not yet collected on them, and a statement reflecting the names, addresses and amount on the reimbursement checks where delivery could not be made, along with the envelopes which have been returned as undeliverable for any reason.

      
      

   2. The Respondent shall continue holding in the subject account an amount of money equal to the total amount of money reflected on the checks which were mailed out to the payees/addressees and which have not been returned as undelivered.

      
      

   3. The Respondent shall contact the Department of Banking and Finance of the State of Florida and file the necessary application/petition seeking authorization for the Respondent to remit to said Department (pursuant to Chapter 717, Florida Statutes) a check totalling the sum of all the funds reflected on the checks which Respondent has issued and mailed to the parties entitled to those funds and which were returned to the Respondent because they could not be delivered to the payees/addressees.

      
      

   4. Respondent shall submit to the Commission quarterly reports which will reflect the balance of the subject account at the end of each quarter, and any transaction which may have transpired in that account relating to the payment of any of the still then outstanding checks.

      
      

   5. At the end of a 12-month period from the date this Order becomes effective, the Respondent shall follow the procedure set forth in Chapter 717, Florida Statutes, and shall disburse and remit to the Department of Banking and Finance the remaining balance of the funds at that time still uncollected and held in the subject account, and simultaneously shall submit to the Commission a final accounting of the disposition of said funds.

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 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 18th day of April 1989 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 Joseph McHugh Jr., Esquire, 333-17th Street, Suite U, Vero Beach, Fl 32960; to Hearing Officer Ella Jane Davis, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Fl, 32399-1550; and to James Gillis, Esquire DPR, P. O. Box 1900, Orlando, Fl 32802, this 28th day of April, 1989.

MO : pep Darlene F. Keller

Docket for Case No: 88-002272

Orders for Case No: 88-002272