STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELLIS STEWART SIMRING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0081

) FLORIDA REAL ESTATE COMMISSION, )

)

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 13, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Ellis Stewart Simring, pro se

3785 Westminister Street

Hollywood, Florida 33021

For Respondent: Manuel E. Oliver, Esquire

Assistant Attorney General Office of the Attorney General Suite 107 South Tower

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to licensure as a real estate salesperson.

PRELIMINARY STATEMENT

On October 19, 1993, Petitioner applied to Respondent for licensure as a real estate salesperson. Respondent denied Petitioner's application, and this proceeding followed.

At the formal hearing, Petitioner testified on his own behalf and offered eleven exhibits, four of which were accepted into evidence. Respondent presented no witnesses, but presented two exhibits, both of which were accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The proposed findings of fact submitted by Respondent are adopted in material part

by the Recommended Order. The Petitioner's post-hearing submittal, in the form of a letter addressed to the undersigned, consists of argument that is rejected as being contrary to the conclusions reached.

FINDINGS OF FACT

1. Respondent is the agency of the State of Florida responsible for the licensure of real estate professionals.

   
   

2. On October 19, 1993, Petitioner submitted to Respondent his application for licensure as a real estate salesperson.

   
   

3. In his application, Petitioner disclosed that he had been disbarred as a member of the Florida Bar by decision of the Florida Supreme Court.

   
   

4. The actions for which Petitioner was disbarred were described in detail by the Florida Supreme Court's decision in The Florid Bar v. Ellis S. Simring, 612 So.2d 561 (Fla. 1993). The Florida Supreme Court found that there was clear and convincing evidence that Petitioner had repeatedly and intentionally violated trust accounting procedures, had commingled trust and personal funds, and had misappropriated client funds for his personal use. The Florida Supreme Court further found that the Petitioner had violated the Court's order that temporarily suspended him from practice.

   
   

5. Petitioner denied that he misappropriated funds from any client, but he admits the other major violations found by the Supreme Court. Petitioner testified that he was suffering from chronic fatigue syndrome and flu-like symptoms when the trust account violations occurred during 1988 and 1989. As a result of a recommendation from an acquaintance, he took large doses of Vitamin C, which aggravated his hemorrhoidal condition and resulted in bleeding. Petitioner testified that his ability to practice law was limited by his medical condition and that his income from his practice suffered as a consequence.

   
   

6. Petitioner testified that his secretary acted as his administrative assistant during that period of time and that she was responsible for maintaining his trust account, but he did not attempt to blame her for the admitted deficiencies pertaining to his trust account.

   
   

7. Petitioner failed to keep or retain appropriate trust account records, caused the proceeds from the sale of his personal property and from loans he had taken out to be deposited in the trust account, and caused office expenses and personal expenses to be paid out of his trust account.

   
   

8. Petitioner settled a personal injury action in which he represented a minor child by the name of Barnett. The proceeds of the settlement in the amount of $45,000 was transferred from his trust account to that of another lawyer who was a non-practicing retired lawyer and friend of the Petitioner. The purpose of that transfer was to hide those funds from the Internal Revenue Service. The Florida Supreme Court found that Petitioner misappropriated a portion of these funds. Petitioner disputes that finding.

   
   

9. The misconduct to which Petitioner admitted at the formal hearing and his disbarment from the practice of law by the Florida Supreme Court create a presumption, pursuant to Section 475.17(1)(a), Florida Statutes, that he is not qualified for licensure as a real estate professional. Petitioner did not offer any competent, substantial evidence which would establish that he is honest,

   truthful, trustworthy, and of good character or that would otherwise rebut the presumption of disqualification.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the licensure he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet that burden.

    
    

12. Section 475.17(1)(a), Florida Statutes, pertains to the licensure of real estate professionals in the State of Florida and provides, in pertinent part, as follows:

    
    

    (1)(a) An applicant for licensure who is a natural person must be . . . honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing. An applicant for an active broker's or salesperson's license must be competent and qualified to make real estate transactions

    and conduct negotiations therefor with safety to investors and to those with whom he may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license or has been disbarred, or his registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, any nation, or any possession or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter, or if the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license under this chapter had the applicant then been registered, the applicant shall be deemed not to be qualified unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the commission that the interest of the public and investors will not likely be endangered by the granting of registration.

    
    

13. Petitioner's failure to keep and maintain trust account records, his commingling of trust account funds, his paying personal bills from his trust account, and his hiding trust funds are grounds for revoking or suspending a real estate license. See, Section 475.25,(1)(b),(k), and (i), Florida Statutes. Petitioner denies that he misappropriated clients' funds as found by the Florida

    Supreme Court. Even if Petitioner had been able to establish through competent evidence that he did not misappropriate clients' funds, the acts to which Petitioner admitted are sufficient to trigger the provision of Section 475.17(1)(a), Florida Statutes, by which Petitioner is deemed not to be qualified for licensure as a real estate professional.

    
    

14. Petitioner's disbarment from the practice of law is not a permanent bar to his licensure as a real estate professional.

    
    

15. Petitioner's disbarment triggered the statutory presumption set forth above thereby placing the burden on Petitioner to establish that he meets the qualifications required of real estate professionals notwithstanding his disbarment. In this proceeding, Petitioner did not present any proof of good conduct and reputation between the time of the acts that led to his disbarment and the time of the formal hearing as required by Section 475.17(1)(a), Florida Statutes. Consequently, there is no evidence upon which the commission can base a conclusion that the interest of the public will not likely be endangered by the granting of the registration. The pending application for licensure should, therefor, be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure as a real estate

salesperson should be denied.

DONE AND ENTERED this 6th day of September, 1994, 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 6th day of September, 1994.

COPIES FURNISHED:

Ellis Stewart Simring, pro se 3785 Westminister Street

Hollywood, Florida 33021

Manuel E. Oliver, Esquire Assistant Attorney General Office of the Attorney General Suite 107 South Tower

400 West Robinson Street Orlando, Florida 32801

Darlene F. Keller, Director Division of Real Estate

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

Jack McRay, Acting General Counsel Department of Business and

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 ten 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: 94-000081

Orders for Case No: 94-000081