STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

W. WESLEY WALLACE, REPRESENTATIVE )

)

Petitioner, )

)

vs. ) CASE NO. 75-1409

)

CONSTANCE V. FLETCHER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 9:00

1. on November 5, 1975, at Suite 210, Las Olas Building, 305 S. Andrews Avenue, Ft. Lauderdale, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Mrs. Louis B. Guttman, III

   Staff Counsel

   Florida Real Estate Commission 2699 Lee Road

   Winter Park, Florida 32789

   
   

   For Respondent: Mr. Robert J. O' Toole

   Buckeye Building

   208 Southeast Sixth Street

   Ft. Lauderdale, Florida 33301 FINDINGS OF FACT

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following pertinent facts are found:

   
   

   1. At about 10:00 P.M. on July 3, 1973, Paul Fletcher, respondent's son, drove up to his home during a heavy rain in a Mazda automobile with his sister and a girl friend. He parked behind his mother's Cadillac, which was parked in front of the front patio. The two girls ran into the house and, within a few minutes, Paul was seen lying on the front porch with his teeth and face injured.

      
      

   2. The sister did not see the fall and Paul never did tell her what happened.

      
      

   3. The respondent's ex-husband, Paul's father, did not see the fall, and did not immediately go to the front door to see what had happened. He did testify that Paul later told him he had fallen on the patio.

   4. The respondent did not see the fall, but ran to the door when she heard a bang and helped her son into the kitchen. He was bleeding from the mouth and he was taken to the hospital. The son, Paul, later told respondent that when he got out of the Mazda, he went to respondent's Cadillac to get his school books and umbrella. He then caught his pants or his foot on the Cadillac seat molding and this threw him down on the front patio.

      
      

   5. The victim of the accident, Paul, testified that he went from the Mazda to the Cadillac in order to get his school books, caught his pantleg on a loose molding around the seat of the Cadillac, tried to put his foot out to catch himself and fell flat on his face on the patio. His mother came to help him, took him into the kitchen and then took him to the hospital.

      
      

   6. Respondent thereafter submitted a claim (for her son's medical bills) to the Traveler's Insurance Company, which was the insurance carrier for the Cadillac. Travelers sent respondent three or four checks totalling $1,038.00.

      
      

   7. The Fletcher family situation is not a happy one. Bruce Fletcher and respondent were separated not long after the incident in question, and are now divorced. There was strong evidence that Bruce Fletcher has pursued a course of conduct with regard to respondent which can be classified at the very least as pure harassment. The son, Paul, and Bruce do not get along at all.

      
      

   8. Respondent Connie Fletcher was charged by the Broward County Circuit Court with fraudulently filing an insurance claim. She pled nolo contendere to this charge, adjudication of guilt was withheld and no fines, costs or period of probation were imposed. She subsequently repaid all sums of money she received from Travelers to Travelers. Her reason for pleading no contest and returning the funds to Travelers was to free herself from her ex-husband's harassment, which had been continuing for a period of over two years.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The respondent is charged by the petitioner with submitting a false claim to Traveler's Insurance Company and thus being guilty of fraud, misrepresentation and breach of trust in a business transaction in violation of F.S. 475.25(1)(a).

      
      

   10. In disciplinary proceedings involving an individual's livelihood, the burden is upon the regulatory agency to prove, by clear and convincing evidence, the misconduct charged. Here, the charge that respondent submitted a false or fraudulent claim to Travelers with regard to her son's medical bills and the cause of the accident in question is simply not borne out by the record.

       
       

   11. The only eye witness to the occurrence was Paul, the victim of the accident. His testimony is that the accident occurred as reported in the claim submitted by respondent. There is absolutely no evidence that the accident occurred other than as described by him that he caught his pantleg on the loose seat molding of the Cadillac, the insured vehicle, which caused him to fall. The father's testimony does not dispute that testimony. He merely testified that his son told him he had fallen on the patio. The son admitted that he landed face down on the patio after his pantleg was caught on the seat molding. Thus, there is nothing in the record before the undersigned which would contradict or impeach the son's testimony or respondent's testimony regarding what her son had related to her as to the cause of the accident in question.

   12. Accordingly, it is concluded that the petitioner has failed to carry its burden of proof that respondent fraudulently or falsely asserted an insurance claim, and there is a lack of sufficient evidence that respondent is guilty of fraud, misrepresentation and breach of trust in a business transaction, as charged in the information.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the information filed against respondent be dismissed.

Respectfully submitted and entered this 18th day of December, 1975, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Louis B. Guttman, III Staff Counsel

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Mr. Robert J. O'Toole Buckeye Building

208 Southeast Sixth Street

Ft. Lauderdale, Florida 33301

Docket for Case No: 75-001409

Orders for Case No: 75-001409