STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-3727

)

RICHARD B. ABEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was conducted before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings on November 2, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire, Senior Attorney Department of Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 (407) 423-6134

For Respondent: Richard B. Abel, Pro Se

2478 Inagua Avenue

Miami, Florida 33133

(305) 856-7476

STATEMENT OF THE ISSUES

The ultimate issue for determination at the formal hearing was whether disciplinary action should be taken against Respondent's real estate broker's license for failing to obey a lawful order of the Florida Real Estate Commission.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on May 19, 1989, alleging inter alia that Respondent failed to obey a lawful order of the Florida Real Estate Commission in violation of Section 475.25(1)(e), Florida Statutes. Respondent requested a formal hearing on or about July 6, 1989, and the matter was referred to the Division of Administrative Hearings on July 11, 1989, for assignment of a hearing officer. A formal hearing was held on November 2, 1989, pursuant to an Amended Notice of Hearing issued on September 19, 1989.

At the formal hearing, Petitioner submitted Petitioner's Exhibits 1-6 which were admitted without objection. Petitioner presented the testimony of Mark Freeman, real estate broker, Ft. Myers, Florida. Respondent adopted Petitioner's exhibits except for Petitioner's Exhibit 6. Respondent testified in his own behalf and cross examined Petitioner's witness.

No transcript was ordered in these proceedings. Proposed Findings of Fact and Conclusions of Law were due on November 13, 1989. Petitioner's Proposed Findings of Fact and Conclusion of Law were timely filed. Respondent has not filed his Proposed Findings of Fact and Conclusions of Law as of the date of this Order. Petitioner's Proposed Findings of Fact are addressed in the Appendix to this Order.

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida.

   
   

2. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida.

   
   

3. A Final Judgment was entered against Richard B. Abel, P.A., in the case of Mark Freeman v. Richard B. Abel, P.A., Case No 85-5678CA-JRT, on August 17, 1986, in the Circuit Court of the Twentieth Judicial Circuit, Lee County, Florida. The Final Judgment was for an amount of $6,839 representing real estate commissions owed by Richard B. Abel, P.A. to Mark Freeman, plus interest and attorney's fees.

   
   

4. A two count Administrative Complaint was filed by the Florida Department of Professional Regulation, Division of Real Estate, against Respondent on June 27, 1988. The Complaint alleged inter alia that Respondent:

   (a) failed to satisfy a Final Judgment in Circuit Court for the payment of a real estate commission; and (b) failed to maintain trust funds in his real estate brokerage trust account or some other proper depository until disbursement in violation of Section 475.25(1)(d), (k), Florida Statutes.

   
   

5. A Final Order was entered by the Florida Real Estate Commission (the "Commission") on December 6, 1988, accepting a Stipulation between Respondent and the Commission in settlement of the Administrative Complaint filed on June 27, 1988 (the "Final Order").

   
   

6. The terms of the Final Order provided that:

   
   

   1. Richard B. Abel, P.A., was reprimanded for failing to pay the Final Judgment entered against it in Circuit Court and was required to pay the amount due Mark Freeman within 45 days from the entry of the Final Order;

      
      

   2. Respondent, in his individual capacity, personally guaranteed the amount owed by Richard B. Abel, P.A., to Mark Freeman, and further agreed not to violate any provision of Chapters 455 and 475, Florida Statutes; and

      
      

   3. Respondent waived his right to contest the validity and enforcement of either the Final Order or Stipulation accepted in the Final Order.

7. Neither Richard B. Abel, P.A., nor Respondent has paid the sums due pursuant to the terms of the Final Order entered by the Commission on December 6, 1988.

   
   

8. The evidence submitted by Petitioner was uncontroverted. Respondent admitted that he placed the monies owed by Richard B. Abel, P.A., to Mark Freeman in the escrow account of Richard B. Abel, P.A., and disbursed the funds to himself, the sole owner, operator, director and officer. Respondent stated that he fully intended to pay Mr. Freeman when Respondent was able to do so. Respondent's sole defense was that the original debt was that of a corporation rather than a personal debt of Respondent.

   
   

9. Respondent is in violation of the Final Order of the Comission entered on December 6, 1988.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The burden of proof is on Petitioner to prove the allegations in the Administrative Complaint by clear and convincing evidence.

    
    

12. Respondent violated Section 475.25(1)(e) when he failed to pay an amount due from Richard B. Abel, P.A., to Mark Freeman in violation of a Final Order entered on December 6, 1988, accepting a Stipulation between Respondent and the Florida Real Estate Commission.

    
    

13. The minimum penalty for violations of Section 475.25(1)(e), Florida Statutes, is a reprimand and/or fine of $1,000 per count. The maximum penalty is suspension for up to 8 years.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of failing to obey a lawful

order of the Florida Real Estate Commission in violation of Section

475.25(1)(e), Florida Statutes, fined $1,000, and placed on probation for a period not to exceed 5 years. The conditions of probation may include any of those prescribe in Florida Administrative Code Rule 21V-24.001(2)(a) except those prescribing re-examination or being placed on broker-salesman status. In the event Respondent fails to pay in full any fine imposed on Respondent or to complete the terms of any probation imposed on Respondent, it is recommended that Respondent's license be suspended for 8 years.

DONE and ENTERED this 4th day of December, 1989, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 4th day of December, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3727

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Respondent did not submit proposed findings of fact.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Included in Finding 1

2. Included in Finding 2

3. Included in Finding 4

4. Included in Finding 5

5-6 Included in Finding 6

7-8 Included in Finding 7

9 Included in Finding 9

COPIES FURNISHED:

James H. Gillis, Esquire Departmen of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

Mr. Richard B. Abel 2478 Inagua Avenue

Miami, Florida 33133

Docket for Case No: 89-003727

Orders for Case No: 89-003727