vs. ) CASE NO. 89-4826
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on June 14, 1990, by telephone conference in Tallahassee, Florida.
For Petitioner: Steven W. Johnson, Esquire
For Respondent: Gregory J. Gore, P.A.
An administrative complaint dated June 22, 1989, alleges that Respondents violated Sections 475.25(1)(e), 475.25(1)(o), 475.42(1)(a) and 475.42(1)(e), F.S., by failing to pay an administrative fine and by operating as a broker without a valid current license.
The issue in this proceeding is whether those violations occurred, and, if so, what discipline is appropriate.
Respondents, through counsel, responded to the administrative complaint with an answer and request for formal hearing.
After referral to the Division of Administrative Hearings, the hearing was set for January 12, 1990, but was continued several times for good cause.
Ultimately, the parties agreed to conduct the formal hearing by telephone conference, as it appeared that the issues and number of witnesses and exhibits
would be limited. Arrangements were made for the parties, their witnesses and the court reporter to assemble in the chambers of Circuit Judge John Antoon, in the Melbourne Branch of the Brevard County Courthouse. The hearing officer participated by conference telephone from her office in Tallahassee. The court reporter administered the oath to witnesses and marked exhibits. When an objection was made to the admissibility of various documents, ruling was taken under advisement pending an opportunity for the hearing officer to view the documents.
By agreement, the exhibits, with the exception of Respondents' exhibit #1, were forwarded to the hearing officer by the court reporter. Respondents' exhibit #1 was provided by their counsel by mail on July 13, 1990.
Petitioner presented the testimony of a single witness and offered thirteen exhibits, all of which are now received in evidence.
Respondent, Jeffrey Robert Horne, testified in his own behalf, and submitted two exhibits, both received in evidence.
No transcript of the hearing was filed. Petitioner filed a proposed recommended order on July 16, 1990. Petitioner's proposed findings of fact are substantially adopted herein, with the exception of paragraphs #5 and 11, which are unsupported by the evidence. (See paragraphs #4 and 11, below)
Respondent, Jeffrey Robert Horne, is currently licensed as a real estate broker in the State of Florida, having been issued license number 0433763 in accordance with Chapter 475, F.S.
Respondent, the People's Realty, Inc., is now and was at all times material hereto, a corporation registered as a real estate broker in the State of Florida having been issued license number 0253302 in accordance with Chapter 475, F.S.
Jeffrey Robert Horne is licensed and operating as the qualifying broker for The People's Realty, Inc., at 1125 U.S. Highway One, Sebastian, Florida 32958.
On December 6, 1988, the Florida Real Estate Commission issued its Final Order in Department of Professional Regulation, Division of Real Estate v. Jeffrey Robert Horne, Case #0156666, DOAH #88-2547, finding Respondent Horne guilty of violations of Section 475.25(1)(a), (b) and (k), F.S., reprimanding him, and assessing a fine of $500.00 for each of the three violations, for a total of $1,500.00.
The order was filed, and was sent to counsel for Respondent, on December 13, 1988.
The order does not, on its face, designate a deadline for payment of the fine.
Jeffrey Horne sent a check dated 1/26/88 to the Department of Professional Regulation, (DPR) in the amount of $500.00, for one-third of his fine.
The check was dishonored for insufficient funds and was returned to DPR.
A form letter was sent to Jeffrey Horne notifying him of the nonpayment and assessing a $25.00 service charge.
On or about April 7, 1989, Jeffrey Horne submitted a cashier's check to DPR in the amount of $525.00.
Jeffrey Horne's April 7, 1989, submittal immediately followed his receipt of this form letter:
(Note: some portions of letter are handwritten)
Records Section
4-5-89
Jeffrey R. Horne
414 Quarry Lane Sebastian FL 32958
Dear
I refer you to D. KELLER'S letter dated 2-24-89 ,
a copy of which is enclosed for your convenience, regarding your check(s) in the amount(s) of $500_ being dishonored by your bank, said check(s) being applicable to your request(s) for fine by Real Estate Commission.
Since you have not complied with the above, this is to advise that I have cancelled your ( )salesman, (X)broker, (X)corporate license(s) No.(s) 0433763 & 0253302 effective 1-26-89 , and request the immediate return of said license(s) to this office.
Accordingly, if you are operating as a ( )salesman, (X)broker, and/or (X)corporation, you are doing so without being the holder of valid license(s) and in violation of Chapter 475, of the Florida Statutes.
For your information, the above license(s) cannot be reacti-
vated unless the required amounts of $500 and $25 service charge are submitted by certified check or money order and license applied for on proper form to the undersigned.
If within 10 days from the date of this letter, you still have not complied, this matter will be turned over to our Investigation Section.
Sincerely,
P.S. Both licenses also expired 3-31-89. No renewal shows as processed
DJP:
Enclosure
D. Janet Puckey, Records Administrative Assistant II
cc: DPR-Tallahassee - Finance & Accounting People's Realty Inc., 9516 Fellsmere Hwy, Sebastian 329
(Petitioner's exhibit #10)
Nothing in the record of this proceeding explains how an effective date of 1/26/89 was established, or by what authority an Administrative Assistant II could cancel a license.
In anticipation of license expiration, Jeffrey Horne had sent two renewal fee checks, dated March 27, 1989 and March 28, 1989, in the amount of
$57.00 each, to DPR.
These checks were dishonored for insufficient funds.
Form letters dated April 26, 1989, were sent to Jeffrey Horne and to People's Realty, Inc., informing them that the checks were dishonored and requesting payment of the full amount, plus $10.00 service charge for each check. The letters also included this warning:
* * *
If you do not comply with the above, your license will be cancelled fifteen days from the receipt of this notice and immediate return of your license will be requested.
Accordingly, any real estate business conducted subsequent to the expiration of your old license will be in violation of Chapter 475, Florida Statute. Your license cannot be reactivated unless the dishonored check is paid in full and a $10.00 service charge is paid.
* * *
(Petitioner's Exhibit #5)
Jeffrey Horne received the notices approximately April 28, 1989, and on May 22, 1989, he sent a money order to DPR for $132.00, intending to cover the two $57.00 renewals and $10.00 service charges.
He was later informed that he was $2.00 short, and he eventually sent that amount.
Larry Whitten was an Investigative Specialist II, assigned to the Division of Real Estate Palm Beach office, between January 1988 and September 1989.
In response to a memo from Attorney Steven Johnson, Investigator Whitten contacted Jeffrey Horne to determine whether he was currently operating. Investigator Whitten cannot recall the exact dates of his one office and two telephone contacts, but they were sometime between May 24, 1989 (the date of the memo), and June 16, 1989. The telephone was answered, "People's Realty", and the office was open and staffed by Jeffrey Horne and another person.
On June 12, 1990, Darlene F. Keller, Director of the DPR Division of Real Estate, executed a "Certification of Absence of Public Record", stating:
I HEREBY CERTIFY that a search of the records of the Florida Real Estate Commission has revealed that as of June 19, 1989, $1,000.00 of the fine owed by Jeffrey Robert Horne had not been received, nor had the renewal fee of
$67.00 been paid.
The licenses of both Respondents were invalid from April 1, 1989 to June 14, 1989.
WITNESS my hand and seal this 12th day of June, 1990.
(Petitioner's Exhibit #6)
Paragraph 10 of the Administrative Complaint which initiated this proceeding states: "On or before June 14, 1989, Respondent made good the renewal fee checks previously returned NSF." This statement is consistent with Respondents' exhibit #1, which includes the DPR letters acknowledging payments.
However, this conflicts with the statement in paragraph 10, above, that as of June 19, 1989, the renewal fee of $67.00 had not been paid. The same claim is also repeated in paragraph 11 of the Administrative Complaint.
The complaint alleges that both Respondents are licensed, and that from January 13, 1989 to March 31, 1989, Respondent Horne was licensed and operating as the qualifying broker for the People's Realty, Inc., but that from April 1, 1989 to June 14, 1989, they were operating without valid and current licenses. (Paragraphs #1-4, Administrative Complaint dated June 22, 1989.)
It is apparent from the above that it is Petitioner's position that Respondents' licenses expired on March 31, 1989, for nonpayment of a renewal fee, and were reinstated on June 14, 1989, when (according to one version of DPR's account) the renewal fees were properly paid. The retroactive "cancellation" of Jeffrey Horne's license by D. Janet Puckey is either given no effect, or his license was retroactively reinstated when he sent the $525.00.
Jeffrey Horne has been licensed as a real estate broker since 1987. Prior to that he was licensed in Florida as a real estate salesman.
The incident which led to his discipline in 1988 occurred when he was a salesman and is his only infraction of record.
At the time that his checks were dishonored in 1989, he was in financial straits, having incurred legal expenses due to the disciplinary proceedings, and having recently started over with his own business. He does not consider his financial situation a threat to his clients as he refuses to accept or hold funds in escrow. Rather, he has an arrangement with a title company to maintain the escrow account.
When the DPR checks were written, he thought that they would be covered by commission checks he had deposited. When he was notified that the checks were bad, he provided restitution as soon as he could. The payment of
$132.00 rather than $134.00, to cover the two $57.00 renewal fees and $20.00 in service charges was a mathematical error.
Jeffrey Horne concedes that he continued to operate as a broker and to operate the People's Realty, without pause, during the relevant period. He denies that he was given a deadline for payment of his fine, and he was attempting to pay it in installments. Until he was contacted by the investigator, he did not believe that his license had been revoked and would have stopped operating if he had been clearly instructed.
He also attempted to pay his renewal fees and, until he was informed otherwise by DPR, he believed the fees were paid. The notice, described in paragraph 7, above, is ambiguous, but appears to provide a 15-day grace period when a check has been dishonored. Horne received the notices on April 28, 1989, but did not send the money order until May 22, 1989. He is guilty, at most, of knowingly practicing with an expired license for nine days (May 13th until May 22nd).
At the time of hearing, the entire $1,500.00 administrative fine had been paid, as had the renewal fees.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this case pursuant to Sections 120.57(1) and 455.225(4), F.S..
In license discipline cases such as this the agency must prove the alleged violations by evidence that is clear and convincing. Ferris v. Turlington, 510 So2d 292 (Fla 1987)
The Administrative Complaint alleges Respondents violated the following provisions of Chapter 475, F.S. governing the practice of real estate:
475.25 Discipline.--
The commission may deny an application for licensure, certification, registration, or permit, or renewal thereof; may place a licensee, certified appraiser, registrant, or permittee on probation; may suspend a license, certification, registration, or permit for a period not exceeding 10 years; may revoke a license, certification, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, certified appraiser, registrant, permittee, or applicant:
Has violated any provision of s. 475.42 or of s. 455.227(1).
* * *
(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.
* * *
(o) Has been found guilty, for a second time, of any misconduct that warrants his suspension or has been found guilty of a
course of conduct or practices which show that he is so incompetent, negligent, dishonest, or untruthful that the money, property, transactions, and rights of investors, or those with whom he may sustain a confidential relation, may not safely be entrusted to him.
* * *
475.42 Violations and penalties.--
(1) VIOLATIONS.--
(a) No person shall operate as a broker or salesman without being the holder of a valid and current license therefor.
* * *
(e) No person shall violate any lawful order or rule of the commission which is binding upon him.
As found above, the Final Order of the Florida Real Estate Commission does not provide a deadline or any instructions for payment.
Rule 21V-10.031, F.A.C. provides that when the Commission imposes a civil penalty for violation of Chapters 455 and 475, F.S., the penalty shall be paid within (30) days of its imposition by order of the Commission.
This rule is not cited in the Administrative Complaint. Respondent, Horne, was not charged with violation of that rule, nor, specifically, with violation of any rule. He cannot be found guilty of that with which he has not been charged. Willner v. Department of Professional Regulation, Board of Medicine, 15 FLW D1723 (Fla 1st DCA opinion filed June 26, 1990); Davis v. Department of Professional Regulation, 457 So2d 1074 (Fla 1st DCA 1984).
From the garbled statements, instructions, notices and the like, it is virtually impossible to determine when Respondents' licenses became invalid. It might be possible to claim that because of the twice bungled attempts to pay, the licenses became inactive on March 31, 1989, and were not reinstated until the full $134.00 was paid in June. Still, the evidence does not clearly establish that the Respondents knew, or should have known that their licenses had lapsed, and they were not on notice that professional activity should cease, except for the brief period addressed in finding of fact paragraph #15.
No evidence was presented by Petitioner regarding the safety of "money, property, transactions and rights of investors" in the hands of a broker who wrote three bad checks to his licensing authority, and who mis-computed
$67.00 plus $67.00. While it might be assumed that such gross carelessness pervades Respondents' practice, it just as well could be assumed, as Respondents argue, that the errors were temporary and were caused by the financial privations of a new business and attendant stress.
Without clear and convincing evidence, Petitioner's proof fails as to all but a technical violation of Section 475.42(1)(a), F.S..
Based on the foregoing, it is hereby, recommended that a Final Order be entered finding that Respondents violated Section 475.42(1)(a), F.S., reprimanding them, and assessing a fine of $100.00, to be paid in full 30 days from the date of the Final Order.
RECOMMENDED this 18th day of July, 1990, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1990.
Steven W. Johnson, Esquire DPR-Division of Real Estate
P.O. Box 1900 Orlando, FL 32802
Gregory J. Gore, P.A.
P.O. Box 780384 Sebastian, FL 32978-0384
Kenneth E. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60
Darlene F. Keller, Division Director DPR-Division of Real Estate
P.O. Box 1900 Orlando, FL 32801
