STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4755

)

LAWRENCE R. DENNIS and )

DENNIS & ASSOCIATES, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 6, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Janine B. Myrick, Esquire

Senior Attorney

Department of Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32803

For Respondents: Lawrence R. Dennis, pro se

4141 North Miami Avenue, Suite 300

Miami, Florida 33127 STATEMENT OF THE ISSUE

Whether Respondents committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent, Lawrence R. Dennis, is a licensed real estate broker and Respondent, Dennis & Associates, Inc., is the real estate company owned and operated by Mr. Dennis. The Administrative Complaint 1/ filed against Respondents contained certain factual allegations and asserted that Respondents were guilty of multiple violations of certain rules and statutes regulating real estate professionals in the State of Florida.

Counts I and II of the Administrative Complaint charged Respondents with misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a

business transaction (with the Carters) in violation of Section 475.25(1)(b), Florida Statutes.

Counts III and IV of the Administrative Complaint charged Respondents with failing to maintain escrow account and to make records available to Petitioner in violation of Section 475.25(1)(b), Florida Statutes.

Counts V and VI of the Administrative Complaint charged Respondents with failing to maintain an office sign as required by Section 475.22, Florida Statutes, and by Rule 21V-10.024, Florida Administrative Code, and therefore in violation of Section 475.25(1)(e), Florida Statutes.

Counts VII and VIII of the Administrative Complaint charged Respondents with failing to preserve and to make available to the Petitioner, all books, records, and supporting documents and failing to keep an accurate account of all trust fund transactions in violation of Rule 21V-14.012(1), Florida Administrative Code, and therefore in violation of Section 475.25(1)(e), Florida Statutes.

Counts IX and X of the Administrative Complaint charged Respondents with failing to comply with a subpoena in violation of Section 475.25(1)(e), Florida Statutes.

Counts XI and XII of the Administrative Complaint charged Respondents with failing to maintain a proper office as required by Rule 21V-10.022, Florida Administrative Code, and therefore in violation of Section 475.25(1)(e), Florida Statutes.

Counts XIII and XIV(A) of the Administrative Complaint charged Respondents with failing to prepare the required monthly reconciliation statements in violation of Rule 21V-14.012(2) and (3), Florida Administrative Code, and therefore in violation of Section 475.25(1)(e), Florida Statutes.

Counts XIV(B) and XV of the Administrative Complaint charged Respondents with misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction (with the Greenidges) in violation of Section 475.25(1)(b), Florida Statutes.

Counts XVI and XVII of the Administrative Complaint charged Respondents with repeated misconduct in violation of Section 475.25(1)(o), Florida Statutes.

Respondents disputed the material facts of the administrative complaints and the conclusions based thereon. During the course of the formal hearing, Respondents admitted the material facts contained in paragraphs 32 through 38 of the Administrative Complaint, inclusive. Consequently, those facts, dealing with the Greenidge transaction, are not in dispute.

Petitioner presented the testimony of Kenneth Rehm, Janet Carter, and Joycelyn Greenidge. Mr. Rehm is an investigator employed by Petitioner. Ms. Carter and Ms. Greenidge are individuals who had business dealings with Respondents. Respondent Lawrence Dennis testified and Respondents presented the additional testimony of Nathaniel Greenidge and of Jerry Kelleher. Mr.

Greenidge is the husband of Joycelyn Greenidge. Mr. Kelleher is an acquaintance of Mr. Dennis. Petitioner's Exhibits 1-10 and 12 were accepted into evidence.

Respondents Exhibits 1-7 were accepted into evidence.

A transcript of the proceedings has been filed. Rulings on the Petitioner's proposed findings of fact may be found in the Appendix to this Recommended Order. Respondents did not file a post-hearing submittal.

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, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. Respondent, Lawrence R. Dennis is now and was at all times pertinent hereto a licensed real estate broker in the State of Florida having been issued license number 0148366 in accordance with Chapter 475, Florida Statutes. The last license issued was a broker, c/o Dennis & Associates, Inc., 4141 North Miami Avenue, #300, Miami, Florida 33127-2847.

   
   

3. Respondent, Dennis & Associates, Inc., is now and was at all times pertinent hereto a corporation registered as a real estate broker in the State of Florida having been issued license number 0236428 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 4141 North Miami Avenue, #300, Miami, Florida 33127-2847.

   
   

4. Sometime in September or October 1990 Janet Carter saw an advertisement in the Miami Times newspaper for a home for sale by Dennis and Associates, Inc. Mrs. Carter called the telephone number listed in the ad and talked with Mr. Dennis.

   
   

5. After speaking with Mr. Dennis about the advertised property Mrs. Carter and her husband viewed the property and ultimately executed a contract to purchase the property which was owned by Dennis and Associates, Inc. Mrs. Carter knew that Mr. Dennis was a licensed real estate broker and felt that she was dealing with him in his capacity as a broker. Mrs. Carter understood that Mr. Dennis's corporation (Dennis & Associates, Inc.) was the owner and seller of the property. Mr. Dennis did not live in the home that the Carters were interested in buying and at all times the Carters were under the assumption that they were negotiating the purchase of a home through a licensed broker. There was, however, insufficient evidence to establish that Mr. Dennis misled the Carters into believing that he was acting in any capacity other than as the president of the corporation that owned the subject property.

   
   

6. On or about October 22, 1990, Ms. Carter and her husband, Ruben, executed a Purchase and Sale Contract and Receipt for Deposit for property located at 2001 Northwest 53rd Street, Miami, Florida (Carter contract). The seller of the property was Dennis and Associates, Inc.

   
   

7. In the first paragraph of the Carter contract, the receipt of the sum of $500.00 from the buyers as a deposit on account of the purchase price is acknowledged by the seller. The form language in that paragraph referring to the deposit being held in escrow is crossed out. The crossed out language is not signed or initialed by any of the parties to the transaction. 2/ On the second page of the Carter contract, the following provision was not altered by the parties: "Deposit check will be deposited, and the funds held in an escrow account until the sale has been closed." The $500.00 deposit was not paid by the Carters until November 19, 1990.

8. Mrs. Carter believed the earnest money deposit was to be held in an escrow account.

   
   

9. After signing the Purchase and Sale Contract and Receipt for Deposit the Carters took the contract to attorney Keith Levarity who prepared a two page Modification of Contract and attached it to the original contract.

   
   

10. The Modification of Contract allowed the Carters, at their expense, to obtain a roof and termite inspection. The parties to the transaction agreed to that modification of the contract.

    
    

11. Another provision in the Modification of Contract agreement provided that the earnest money deposit in the amount of $500.00 would be held in Mr. Levarity's trust account. Respondents did not agree to that modification and that provision was deleted from the Modification of Contract agreement. The Carters agreed to allow Mr. Dennis to hold the earnest money deposit in his escrow account and that portion of the Modification of Contract that referred to Mr. Levarity holding the earnest money deposit was crossed out, initialed by the Carters and by Mr. Dennis, and dated November 19, 1990. The Modification of Contract also provided that if defects were noted by the inspections, repairs to the house would be made by the sellers prior to the closing of the transaction.

    
    

12. On November 19, 1990, Janet Carter gave Respondent Lawrence Dennis check number 541 in the amount of $500.00 as an earnest money deposit for the purchase of the property located at 2001 Northwest 53rd Street, Miami, Florida.

    
    

13. The transaction never closed because certain repairs to the property were never made by the Respondents as agreed.

    
    

14. On January 14, 1991, Mr. and Mrs. Carter advised Mr. Dennis by letter that they wished to cancel their contract and wanted a full refund of the

    $500.00 deposit. In addition to the letter of January 14, 1991, Mrs. Carter verbally told Mr. Dennis that the contract was cancelled and that she wanted her

    $500.00 earnest money deposit refunded.

    
    

15. In December 1990, Respondents ordered a roof inspection to determine the extent of the repairs that would be needed. This inspection cost Respondents the sum of $50.00. Under the terms of the Carter contract as modified, the Respondents were to bear the cost of paying for that roof inspection. The Carters never ordered a roof inspection and were not, under the terms of their written contract, obligated to pay for the roof inspection ordered by Mr. Dennis.

    
    

16. On or about February 25, 1991, Janet and Ruben Carter signed a release on deposit receipt provided by Mr. Dennis. The release on deposit provided that Mr. Dennis would return $450.00 of the $500.00 earnest money deposit made by the Carters. Mr. Dennis insisted on retaining the sum of $50.00 to pay for the roof inspection that he had ordered. Although the Carters believed they were entitled to the return of all of their earnest money deposit, they agreed to accept the sum of $450.00 on the advice of their attorney.

    
    

17. On or about March 8, 1991, Janet Carter filed a complaint against Respondents with the Department of Professional Regulation. As of the time of the formal hearing, the Respondents had not repaid the Carters any portion of the $500.00 earnest money deposit they had made.

18. Kenneth George Rehm is an experienced real estate investigator who had been employed by the Department of Professional Regulation for the ten years preceding the formal hearing. In March or April of 1991 Mr. Rehm went to the registered location of the office of Respondents to talk with Mr. Dennis about the complaint filed with the Department of Professional Regulation by Mrs. Carter. There was no sign indicating that the premises was a real estate office or that Lawrence Dennis was the broker of a real estate office either on the primary entry to the office or on the lobby directory. When Mr. Rehm brought the lack of a proper sign to Mr. Dennis's attention he put up a piece of paper with his name and the name of the company. Respondents established that at one time they had signs on the outside of Mr. Dennis's office suite and on the lobby directory, but that both signs had been stolen. It was not established when the thefts occurred or whether these thefts were the reason there were no signs in March or April 1991. Respondents had replaced their signs by the time of the formal hearing.

    
    

19. Mr. Rehm interviewed Mr. Dennis about the Carter transaction on April 8, 1991. When Mr. Rehm asked to review the escrow account, Mr. Dennis told him that the Respondents did not have an escrow account and that, consequently, the Carter deposit was not being held in escrow.

    
    

20. When informed by Respondent that there was no escrow account Mr. Rehm asked to review the operating account. Mr. Dennis refused to permit Mr. Rehm review of the operating account. Mr. Dennis telephoned Frederick H. Wilsen, Petitioner's Chief Staff Attorney, and inquired as to whether he had to give the operating account records to Mr. Rehm. After talking with Mr. Wilsen, Mr. Dennis agreed to allow Mr. Rehm review of the records for the operating account.

    
    

21. On April 9, 1991, Mr. Rehm prepared a subpoena duces tecum directing Mr. Dennis as broker for Dennis and Associates, Inc., to produce at Petitioner's offices in Miami on April 15, 1991, all monthly bank statements, bank deposit slips, and cancelled checks for operating accounts and/or escrow accounts for the period of April 1, 1990, to the time of service of the subpoena on April 9, 1991. During Mr. Rehm's initial interview of Mr. Dennis he was told by Mr. Dennis that he could bring the subpoena to Respondents's office the following day at approximately 10:00. Mr. Rehm attempted to serve the subpoena at that time but Mr. Dennis was not at the office. Mr. Rehm contacted Mr. Dennis who indicated he would be at his office at approximately noon. Mr. Rehm was at Respondents's office at noon and Mr. Dennis was not there. Mr. Rehm returned to Respondents's office a third time in the afternoon and successfully served the subpoena duces tecum on Mr. Dennis.

    
    

22. Mr. Dennis came to Mr. Rehm's office on April 15, 1991, but did not produce all the documents outlined in the subpoena duces tecum. On April 15, 1991, Mr. Rehm asked Mr. Dennis to produce cancelled checks and a bank statement for March of 1991. Mr. Dennis never complied with that request. The request for these records was within the scope of the subpoena.

    
    

23. In response to the subpoena, Mr. Dennis gave Mr. Rehm a copy of two of the monthly bank statements for an escrow account (account number 20300562106) in the name of Dennis and Associates, Inc., at Eagle National Bank. The monthly statement for the period ending November 30, 1989, reflected that an overdraft in the amount of $8.91 existed in the account resulting from a bank service charge. The monthly statement for the period ending January 10, 1990, reflected a zero balance. There was no evidence of any activity in the escrow account subsequent to January 10, 1990.

24. Mr. Dennis asserted the position that he did not have to provide records for an escrow account because Respondents did not have an active escrow account. That position is rejected. The evidence establishes that Respondents had, as of January 10, 1990, an escrow account at Eagle National Bank, and there was no persuasive evidence that this account had ever been closed. The documentary evidence introduced in this proceeding establishes that, as of January 10, 1990, the escrow account had a zero balance, but it does not establish that the account was closed. Mr. Dennis's testimony that he had asked that the account be closed is insufficient to establish that the account was closed, nor did it establish that Respondents were relieved of their duty to provide documentation in response to the subpoena that would enable Mr. Rehm to either audit the escrow account or verify that the account had been closed.

    
    

25. When Mr. Rehm discussed the Carter contract with Mr. Dennis in late March 1991, Mr. Dennis stated he would return $450.00 of the $500.00 earnest money deposit to the Carters in the first week of April 1991. As of the date of the formal hearing Respondents had not refunded any of the earnest money deposit to the Carters.

    
    

26. On or about November 30, 1990, a Final Judgment in case #90-2559-SP020 in the County Court in and for Dade County, Florida, was entered against Respondent Lawrence R. Dennis d/b/a Dennis & Associates, Inc., in favor of Nathaniel A. Greenidge and Joycelyn B. Greenidge. The award of the Final Judgment was for the principal sum of $3,200.00, prejudgment interest of $44.80, costs of $70.50 and attorneys' fees of $200.00 for a total of $3,515.30. The Final Judgment obtained by the Greenidges was a result of Respondents's refusal to refund an earnest money deposit taken by Respondents in conjunction with a real estate transaction involving Respondents as the seller of the property.

    
    

27. Respondents refused to honor said Final Judgment, so the Greenidges had to levy on the subject real property and set it for Sheriff's sale on April 3, 1991. In an effort to obtain the debt owed by Respondents, the Greenidges entered into an agreement to cancel the Sheriff's sale in exchange for receipt of $3,500.00 from a third party purchasing the property. The agreement set a closing on or before 30 days from the date of the agreement. Respondents did not timely pay the Greenidges.

    
    

28. On or about March 27, 1992, Respondents paid the Greenidges approximately $3,000.00, which they accepted in satisfaction of the final judgment.

    
    

29. On or about October 16, 1990, the Respondents were issued a letter of guidance from the Florida Real Estate Commission for a violation of Section 475.25(1)(d), Florida Statutes, and Rule 21V-10.032, Florida Administrative Code.

    
    

30. On or about February 19, 1991, a Final Order was issued by the Florida Real Estate Commission in DOAH Case No. 90-5124 (DPR Case Nos. 0148366 and 0236428) incorporating a stipulation disciplining Respondent for breach of trust in a business transaction, failure to account and deliver a deposit and failure to notify the Florida Real Estate Commission of a deposit dispute. That proceeding pertained to dealings between Respondents and Gwendolyn King and Roxie Ann King.

    
    

31. On or about August 26, 1991, Mr. Wilsen, sent a letter to Respondents in reply to a letter sent to Mr. Wilsen by Respondents on or about July 31, 1991. Mr. Wilsen's letter stated, in pertinent part:

    It is a matter of private agreement as to who will hold the deposit and where the account will be maintained.

    As the property owner, you may hold the funds so long as you have the mutual prior knowledge and consent of the parties you are dealing with in the transaction."

    
    

32. The King, Greenidge, and Carter transactions all occurred prior to Respondents's July 31, 1991, letter to Mr. Wilsen. Mr. Dennis did not rely on Mr. Wilsen's reply in his dealings with the Kings, the Carters, or the Greenidges.

    
    

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

34. Section 475.25, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The commission may ... suspend a license ... for a period not exceeding 10 years; may revoke a license ...

       ; may impose an administrative fine not to exceed $1000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee ... :

       * * *

       (b) Has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state or any other state, nation, or territory; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied ... . It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage of loss has been settled and paid after the discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public.

       * * *

       (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.

35. Section 475.22, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. ... Each active broker shall maintain a sign on or about the entrance of his principal office and each branch office, which sign may be easily observed and read by any person about to enter such office and shall be of such form and minimum dimensions as shall be prescribed by the commission.

       
       

36. Rule 21V-10.024, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    All licensed real estate brokers, holding an active license, shall erect and maintain a sign on or about the entrance of their principal office and all branch offices, which sign may be easily observed and read by persons about to enter the office. The signs shall be placed in one of two locations as follows: a) on the exterior of the office entrance, in which case the sign shall be easily observable by persons about to enter the office; or b) on the interior of the office, in which case the sign shall be easily observable by persons as they are entering the office. Every such sign shall contain, in letters not less than one inch in height for exterior signs or one-half inch in height for interior signs, the name of the broker, together with his trade name, if any. The words "Licensed Real Estate Broker" (or Lic. Real Estate Broker) are to be on all signs. ...

    
    

37. Rule 21V-14.008(1)(a), Florida Administrative Code, defines the term "deposit", in pertinent part, as follows:

    
    

    (1)(a) A "deposit" is a sum of money, or its equivalent, delivered to a real estate broker or salesman, as earnest money, or a payment, in connection with any real estate transaction named or described in Section 475.01(1)(c), Florida Statutes, or for the purpose of obtaining satisfaction, release, or assignment of mortgages, or quit claim or other deeds deemed necessary or desirable in acquiring or perfecting the title to real estate, or assembling interest therein, or such sum delivered in escrow, trust or on condition, in connection with any transaction conducted, or being conducted, by such broker or salesman within the purview of Chapter 475, Florida Statutes.

    
    

38. Rule 21V-14.012, Florida Administrative Code, provides detailed regulations of the type records that a broker must maintain for an escrow account and provides that the Department of Professional Regulation shall have access to those records.

    
    

39. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondents. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer

    Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v.

    Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

40. Petitioner has the authority to conduct investigations which includes the right to subpoena and inspect records of licensees. See generally, Section 455.223, Florida Statutes.

    
    

41. Petitioner established by clear and convincing evidence that Respondents failed to fully comply with the subpoena lawfully issued by the Department and served by Mr. Rehm. Consequently, Petitioner established that Respondents violated the provisions of Section 475.25(1)(e), Florida Statutes, by failing to comply with a lawful order of the Department as alleged in Counts IX and X of the Administrative Complaint.

    
    

42. Petitioner established by clear and convincing evidence that Respondents failed to maintain a sign as required by Rule 21V-10.24, Florida Administrative Code. Although Respondents offered evidence that their signs had been stolen, Respondents did not establish when the theft took place or that the theft was the reason Respondents were not in compliance with Rule 21V-10.24, Florida Administrative Code. Consequently, Petitioner established that Respondents violated the provisions of Section 475.25(1)(e), Florida Statutes, by failing to comply with a rule of the Department, as alleged by Counts V and VI of the Administrative Complaint.

    
    

43. The funds received by Respondents pertaining to the Carter transaction and to the Greenidge transaction were received as the seller of the respective properties, not as a real estate broker. The rights of the Carters and the Greenidges are contractual rights which were undoubtedly breached by Respondents. Nevertheless, Respondents's violations of these private contractual rights and the failure to place those funds in an escrow account do not subject Respondents to discipline by Petitioner unless it is concluded that those violations constitute a violation of Section 475.25(1)(b), Florida Statutes. See, Felischman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3rd DCA 1983), and LaRossa v. Department of Professional Regulation,

    474 So.2d 322 (Fla. 3rd DCA 1985). An analysis of the definition of the term "deposit" in Rule 21V-14.008(1)(a), Florida Administrative Code, and the type transactions described in Section 475.01(c), Florida Statutes, leads to the same conclusions reached by the courts in both Fleischman, supra, and LaRossa, supra.

    
    

44. While the business practices of the Respondents in dealing with both the Carters and the Greenidges are questionable, it cannot be concluded, based on clear and convincing evidence, that Respondents's conduct in asserting legal positions with little or no merit constitutes "... fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick,

    scheme, or device, culpable negligence, or breach of trust in any business transaction in this state ..." within the meaning of Section 475.25(1)(b), Florida Statutes. Consequently, if is concluded that Petitioner did not establish the violations alleged by Counts I, II, XIV(B), and XV of the Administrative Complaint.

    
    

45. The two bank statements pertaining to the escrow account did not establish how the escrow account was maintained by Respondents, other than that the account had reflected an overdraft from a bank service charge at the end of one month that was corrected the following month. Petitioner did not otherwise establish how those accounts were maintained due, in large part, to Respondents's failure to comply with the subpoena. The violations alleged in Counts III, IV, VII, VIII, XIII, and XIV(A) of the Administrative Complaint were not established, except to the extent that Respondents's failed to provide records to Petitioner. That failure, is more appropriately punished as a violation of the provisions of Section 475.25(1)(e), Florida Statutes, as alleged in Counts IX and X of the Administrative Complaint.

    
    

46. Respondents have repeatedly committed violations of the statutes and rules regulating real estate brokers in Florida. Petitioner established that Respondents engaged in a course of conduct in violation of Section 475.25(1)(o), Florida Statutes, as alleged in Counts XVI and XVII of the Administrative Complaint.

    
    

47. Rule 21V-24.001, Florida Administrative Code, provides disciplinary guidelines pertinent to this proceeding. The recommended penalty that follows is within the range of penalties provided by the guidelines.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of fact

contained herein and which suspends the licensure of both Respondents for a

period of one year and which assesses an administrative fine in the total amount of $500.00.

DONE AND ORDERED this 9th day of July, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 9th day of July, 1992.

ENDNOTES

1/ At the beginning of the formal hearing, Petitioner's motion to amend the administrative complaint to correct a scrivener's error was granted. The administrative complaint had two paragraphs numbered as Count XIV. Petitioner was permitted to amend the administrative complaint by re-numbering the first paragraph numbered XIV as XIV(A) and the second as XIV(B). All other paragraphs retained their initial numbering.

2/ It is typical for parties to a contract to sign or initial provision that have been deleted by mutual agreement. There was no satisfactory explanation as to why that stricken portion of the agreement had not been initialed.

APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 91-4755

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner (Petitioner's post-hearing submittal did not have a paragraph numbered 39).

36, 60 are rejected as being subordinate to the findings made.

1. The proposed findings of fact in paragraph 27 are rejected as being unnecessary to the conclusions reached since these proposed findings do not pertain to any of the alleged violations.

   
   

2. The proposed findings of fact in paragraphs 37 and 38 are rejected in part as being unsubstantiated by the evidence. While it was clearly agreed that Mr. Dennis would hold the funds, it was not clearly established by the evidence that Mr. Dennis said he would hold the funds in his escrow account. The proposed findings of fact in paragraphs 37 and 38 are otherwise adopted in material part by the Recommended Order.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondents. On June 26, 1992, Respondents submitted to the Division of Administrative Hearings a letter that contained certain attachments. Some of these attachments were introduced as exhibits at the formal hearing, but others were not. No attachment to the letter that was not admitted as an exhibit has been considered by the undersigned and should not be considered as part of the record of this proceeding. See, Section 120.57(1)(b)6, Florida Statutes. The letter submitted by Respondents consisted of unnumbered paragraphs. For ease of reference, those paragraphs will be referred to as if they had been sequentially numbered 1-58.

1. The proposed findings of fact in paragraphs 1, 12, 13, 14, 16, 17, 18, 36, 41, 47, 48, 49, 50, 51, 52, 53, 54, and 55 are rejected as being argument and not proposed findings of fact. To the extent any of the argument is construed to be a proposed finding of fact, the proposed finding is rejected as being unnecessary to the conclusions reached or as being contrary to the conclusions reached.

2. The proposed findings of fact in paragraphs 2, 3, 4, 5, 8 9, 24, 44, 45, 56, 57, and 58 are rejected as being unsubstantiated by the evidence.

   
   

3. The proposed findings of fact in paragraphs 6, 21, 22, 23, and 46 are adopted in material part by the Recommended Order.

   
   

4. The proposed findings of fact in paragraphs 7, 11, 19, 20, 42, and 43 are rejected as being subordinate to the findings made.

   
   

5. The proposed findings of fact in paragraphs 10, 28, and 34 are rejected as being either subordinate to the findings made or as being unsubstantiated by the evidence.

   
   

6. The proposed findings of fact in paragraph 15 are rejected as being a conclusion of law.

   
   

7. The proposed findings of fact in paragraphs 25, 26, 27, 31, 32, and 38 are rejected as being contrary to the findings reached and to the conclusions made.

   
   

8. The proposed findings of fact in paragraph 29 are adopted in part by the Recommended Order and are rejected in part as being contrary to the findings made as to the records of the escrow account.

   
   

9. The proposed findings of fact in paragraphs 30, 33, 35, 37, and 39 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

Janine B. Myrick, Esquire Senior Attorney

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Lawrence R. Dennis Suite 300

4141 North Miami Avenue Miami, Florida 33127

Darlene F. Keller Division Director Division of Real Estate

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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

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 NOS. 9181336, 9182227

DOAH CASE NO. 91-4755

LAWRENCE R. DENNIS and DENNIS & ASSOCIATES, INC.

Respondents.

/

FINAL ORDER

On August 18, 1992, the Florida Real Estate Commission heard this case to issue a Final Order.

Hearing Officer Claude B. Arrington of the Division Of Administrative Hearings presided over a formal hearing On May 6, 1992. On July 9, 1992, he issued a Recommended Order, a copy of which is attached hereto as Exhibit A and made a part hereof.

The Petitioner filed Exceptions to the Recommended Order. A copy of said Exceptions is attached hereto as Exhibit B and made a part hereof.

The Petitioner took exception to the Hearing Officer's Recommended Penalty as too lenient, considering the Respondents' history of being disciplined, the status of the licensee and registrant at the time the offense was committed, and the degree of harm to the consumer or public.

After hearing arguments of counsel and upon a complete review of the record, the Commission adopts the Hearing Officer's Findings of Fact and Conclusions of Law and accepts the Petitioner's Exceptions to the Hearing Officer's Recommended Penalty.

The Commission finds that the Respondents were disciplined on two other dates (October 16, 1990 and February 19, 1991) for violations of Chapter 475, Florida Statutes, and that, at the time of the instant violation, the Respondents were on probation for a previous violation of Chapter 475, Florida Statutes. The Commission concludes that the Respondents' history demonstrates a disregard for the License Law and for safe practice toward the consumer.

The Florida Real Estate Commission therefore ORDERS that each Respondent pay a $2000 administrative fine and that the license and registration of the Respondents be suspended for a period of ten (10) years.

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 18th day of August 1992 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: Lawrence R. Dennis and Dennis & Associates, Inc., 4141 North Miami Avenue, Suite 300, Miami, Florida 33127; to Hearing Officer Claude B. Arrington, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and to Janine Myrick, Esquire, DPR, Post Office Box 1900, Orlando, Florida 32802, this 2nd day of September 1992.

Docket for Case No: 91-004755

Orders for Case No: 91-004755