STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE No. 92-4947

)

JOHN WILSON CLAFFEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on December 9, 1992, in Sarasota, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Senior Attorney

DPR - Division of Real Estate

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

For Respondent: John Wilson Claffey, pro se

312 Venice Avenue East, #126 Venice, Florida 34292

STATEMENT OF THE ISSUES

Whether Respondent engaged in acts and/or conduct amounting to fraud, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction for which his real estate license should be disciplined.

PRELIMINARY STATEMENT

By its Administrative Complaint filed herein on June 19, 1992, Petitioner, Department of Professional Regulation, Division of Real Estate, seeks to discipline Respondent's real estate license. Respondent has disputed the charges and requested a formal hearing pursuant to Section 120.57(1). Florida Statutes. Pursuant to notice, a formal hearing was held on December 9, 1992.

At the hearing, Petitioner called as witnesses Steven J. Chase, Esquire and Mary Lou Retty. Petitioner's Exhibits 1-4 were offered and received into evidence. Respondent testified on his behalf and called Lloyd Kelly as a witness.

Petitioner filed a proposed recommended order which is substantially incorporated herein in this Recommended Order.

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

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to, inter alia, Chapters 455 and 475, Florida Statutes and rules promulgated pursuant thereto.

   
   

2. Respondent, John Wilson Claffey, is now and was at times material hereto, a licensed real estate salesperson in Florida, having been issued licensed number 0419730. The last license issued was as a salesperson, c/o Venice Properties and Investments, Inc., 628 Cypress Avenue, Venice, Florida.

   
   

3. During 1985, Respondent and Mary Lou Retty (Retty), while Respondent was acting as the licensed general contractor in the employ of Venice Construction Management, Inc., entered into a verbal agreement to build five commercial structures (for Retty) in Venice, Florida.

   
   

4. The agreement provided that Respondent would charge Retty actual costs plus a supervisory fee for each building. Respondent built the first two buildings as agreed in keeping with the projections he provided Retty. However, a dispute later arose between Respondent and Retty during construction of the third building about some of the billings and other accounting practices with the end result that Retty suspected that Respondent was overcharging by falsifying invoices and purchasing materials which were used for other projects, but were charged to the building he was erecting for Retty.

   
   

5. During 1986, Retty filed a lawsuit in the Circuit Court of the Twelfth Judicial Circuit for Sarasota County, Florida. Retty's object was to recover monies that she suspected Respondent had misappropriated and wrongfully charged to her project. On April 25, 1990 and June 28, 1990, Retty obtained two final judgments. The first judgment ordered Respondent to pay Retty $40,263.47 and the second final judgment ordered him to pay her the sum of $10,263.47 for civil theft, attorney fees and court costs. The interest rate for both judgments was 12% per annum. (Petitioner's Exhibits 1-4.)

   
   

6. During counsel's preparation and discovery for trial, it became evident that Respondent altered several billing invoices which he sought to collect from Retty. Respondent submitted falsified invoices and charged Retty for materials that he used on other projects.

   
   

7. Respondent unsuccessfully appealed the final judgments. To date, Respondent has not paid any of the monies he was ordered to pay in the final judgments referenced herein.

   
   

   CONCLUSIONS OF LAW

   
   

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

9. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

   
   

10. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

    
    

11. Subsection 475.25, Florida Statutes (1991), provides in relevant part that the Commission may suspend a license for a period not exceeding seven (7) years; revoke a real estate license; impose an administrative fine not to exceed

    $1,000 for each count or separate offense; and may impose a reprimand or, any or all of the foregoing, if it finds that a licensee has violated Subsection 475.25(1)(b), Florida Statutes.

    
    

12. Petitioner has the burden of proof and the evidence must be clear and convincing.

    
    

13. Petitioner presented clear and convincing evidence that Respondent engaged in trickery, fraud, dishonest dealing, and breach of trust in the business transaction with Retty the purview of Subsection 475.25(1)(b), Florida Statutes. Respondent's behavior clearly evidences that he failed to live up to the standards expected of and required of licensed real estate professionals. Respondent's conduct, in his dealings with Retty, indicates a total disregard for the principles of fair dealing and professional standards of real estate licensees. For all of these reasons, it is found that Respondent is guilty of having engaged in conduct violative of Subsection 475.25(1)(b), Florida Statutes (1991).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Petitioner enter a Final Order finding that Respondent engaged in proscribed conduct as alleged and that his real estate license be suspended for seven (7) years. It is further RECOMMENDED that Respondent Claffey pay an administrative fine of $1,000.00 to Petitioner within thirty (30) days of the entry of its Final Order.

DONE and ORDERED this 29th day of January, 1993, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1993.

COPIES FURNISHED:

Steven W. Johnson, Esquire Senior Attorney

DPR- Division of Real Estate

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

John Wilson Claffey

312 Venice Avenue East #126 Venice, Florida 34292

Darlene F. Keller/Executive Director Florida Real Estate Commission Hurston Building-North Tower

400 West Robinson Street Orlando, Florida 32801 1772

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street 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.

Docket for Case No: 92-004947

Orders for Case No: 92-004947