STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF BUSINESS ) AND PROFESSIONAL REGULATION )

)

Petitioner, )

)

vs. ) CASE NO. 95-2720

)

LEE SCOTT MAROSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, held a formal hearing in this case on August 11, 1995 in Tampa, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson,, Esquire

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900 For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent's Florida real estate license should be revoked or otherwise disciplined for violations of Sections 475.25(1)(b), 475.25(1)(e), and 475.25(1)(k), Florida Statutes.

PRELIMINARY STATEMENT

On January 23, 1995, Petitioner, Department of Business and Professional Regulation, Division of Real Estate, filed an Administrative Complaint against Respondent, Lee Scott Marose, alleging violations of provisions of Chapter 475, Florida Statutes. The Administrative Complaint was served on Respondent at his address of 18950 U.S. Highway 441, #133, Mount Dora, Florida 32757. Respondent elected an informal hearing pursuant to Section 120.57(2) Florida Statutes.

Respondent appeared before the Florida Real Estate Commission at its meeting of April 18, 1995. Respondent at that time indicated that he disputed material facts of the Administrative Complaint. Accordingly, on May 30, 1995, Petitioner, pursuant to Section 120.57(1), Florida Statutes, filed its request for formal hearing with the Division of Administrative Hearings (DOAH).

On June 1, 1995, an Initial Order was entered directing the parties to comply with certain prehearing procedures. On July 3, 1995, the Notice of Hearing setting this matter for formal hearing was entered. The Initial Order and Notice of Hearing were sent to Respondent at the above-referenced address.

There is no indication in the record that Respondent did not receive the Initial Order and Notice of Hearing, nor did Respondent notify DOAH of a change of address.

Pursuant to notice, a formal hearing was held on August 11, 1995, in the Hillsborough County Courthouse in Tampa, Florida. Respondent did not appear at hearing; however, John A. Barfield, Respondent's former employer and a witness in this case, observed Respondent in the courthouse prior to the hearing.

Before commencing the hearing, the hearing officer directed Petitioner's counsel to attempt to locate Respondent, but Respondent apparently had left the area.

In the absence of Respondent, Petitioner presented a prima facie case including the testimony of three witnesses, Mrs. Kim Fry, John A. Barfield, and Al Shevy. Petitioner also presented five exhibits which were received in evidence.

Subsequent to hearing, an Order to Show Cause was entered on August 14, 1995, affording Respondent an opportunity to explain his failure to appear at hearing. Respondent did not respond to the Order to Show Cause.

On August 24, 1995, Petitioner filed a Proposed Recommended Order.

Separate rulings on the proposed findings are set forth in the Appendix attached hereto.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, Division of Real Estate, is the state licensing and regulatory agency charged with the responsibility and duty to enforce the provisions of Chapter 475, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. At all material times, Respondent, Lee Scott Marose, was a licensed real estate salesperson in the State of Florida, having been issued license No. 0584225, pursuant to Chapter 475, Florida Statutes.

   
   

3. From December 10, 1993 to June 6, 1994, Respondent was employed as a real estate salesperson with Tam-Bay Realty, Inc., in Hillsborough County, Florida.

   
   

4. On or about February 1, 1994, Respondent solicited and obtained a residential lease between Richard Akers, Sr. (Owner), and R. Dugan Fry (Tenant) for property located at 1731 Staysail Drive, Valrico, Florida. The lease provided for rental payments of $850.00 per month.

   
   

5. On or about May 1, 1994, in accordance with the lease, the Tenant sent Respondent a check in the amount of $850.00 payable to Tam-Bay Realty.

   
   

6. Respondent did not deliver the May 1, 1994 check to Tam-Bay Realty, but instead caused the Tenant to issue another check dated May 9, 1994, in the amount of $850.00 payable to Respondent.

   
   

7. Respondent received the May 9, 1994 check, cashed the check, and diverted the funds to his own use.

   
   

8. Due to Respondent's actions, Tam-Bay Realty refunded the money to the Owner, and dismissed Respondent from its employment.

   
   

9. During the investigation of this matter by Petitioner, Respondent admitted to Petitioner's investigator the conversion of the rental check, but

   explained that his actions were an attempt to shorten the "turn-around" time on the rental check, and that he had been unable to replace the funds because money had been stolen from his personal checking account.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

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

    
    

12. In licensure disciplinary proceedings Petitioner has the burden of proving the material allegations of the Administrative Complaint by clear and convincing evidence. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

13. "Clear and convincing evidence" requires evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking in confusion as to facts in issue; evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

    
    

14. Sections 475.25(1)(b),(e), and (k) provide:

    
    

    1. The commission may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, 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, registrant, permittee, or applicant:

       (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, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design,

       or scheme. 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 or loss has been settled and paid after 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 of rule made or issued under the provisions of this chapter or chapter 455.

       * * *

       (k) Has failed, if a broker, to immediately place, upon receipt, any money, fund, deposit, check, or draft entrusted to him by any person dealing with him as a broker in escrow with a title company, banking institution, credit union, or savings and loan association located and doing business in this state, or to deposit such funds in a trust or escrow account maintained by him with some bank, credit union, or savings and loan association located and doing business in this state, wherein the funds shall be kept until disbursement thereof is properly authorized; or has failed, if a salesperson, to immediately place with his registered employer any money, fund, deposit, check, or draft entrusted to him by any person dealing with him as agent of his registered employer. The commission shall establish rules to provide for records to be maintained by the broker

       and the manner in which such deposits shall be made.

       
       

15. As a real estate licensee in Florida, the Respondent occupies a status under law with recognized privileges and responsibilities. Zichlin v. Dill, 25 So.2d 4 (Fla 2nd DCA 1946); United Homes, Inc. vs. Moss, 54 So.2d 351 (Fla 2nd DCA 1963).

    
    

16. Inasmuch as a real estate licensee in Florida belongs to a privileged class, the State has prescribed a high standard of qualifications. Zichlin, supra. "The law specifically requires that a person, in order to hold a real estate license, must make it appear that he is...trustworthy, ... and that he bears a good reputation for fair dealing." McKnight v. Florida Real Estate Commission, 209 So.2d 199, (Fla. 2nd DCA 1967).

    
    

17. The evidence is clear and convincing that Respondent's acts with regard to the conversion of funds as alleged in the Administrative Complaint constitute a failure to fulfill the above requirements and violate the provisions of Sections 475.25(1)(b), (e), and (k), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Respondent be found in violation of the above-cited statutory provisions, and that Respondent's Florida real estate license be revoked.

RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of September, 1995.

RICHARD HIXSON

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 8th day of September, 1995.

APPENDIX

As to Petitioner's proposed findings: 1.-9. Accepted and incorporated.

COPIES FURNISHED:

Steven W. Johnson,, Esquire Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Lee Scott Marose

18950 U.S. Highway 144, #133

Mount Dora, Florida 32757

Darlene F. Keller, Division Director

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

Lynda L. Goodgame, 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 the 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 consult with the agency that will issue the Final Order in this case concerning their 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: 95-002720

Orders for Case No: 95-002720