STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE E. DODD, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 76-2188

)

JAMES F. ROBERTSON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in Suite 103, Southeastern Building, 3314 Henderson Boulevard, Tampa, Florida, at 10:30 A.M. on March 23, 1977 before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This matter came on to be heard on an Administrative Complaint filed by the Florida Real Estate Commission James F. Robertson alleging that he had signed an affidavit which was false in violation of Section 475.25(1)(a), Florida Statutes.

ISSUE

Whether James F. Robertson signed a false affidavit in violation of Section 475.25(1)(a), Florida Statutes.

APPEARANCES

For Petitioner: Richard J. R. Parkinson, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: James F. Robertson appeared and

represented himself FINDINGS OF FACT

1. The parties stipulated to the truth of the facts alleged in paragraphs l, 2, 3, 4, 5, 6, and 8 of the Administrative Complaint. The facts to which the parties stipulated are incorporated into and made a part of these findings of fact.

   
   

2. Lester H. Smith executed the Owner's Affidavit, Exhibit 4, based upon James F. Robertson's execution of the Contractor's Affidavit, Exhibit 2. The Contractor's Affidavit is the affidavit alleged to have been executed by Robertson with the knowledge that it was false.

3. Robertson executed the Contractor's Affidavit as a part of the transaction between Chelsea Title and Guaranty Co. and the Lester R. Smiths. Based upon Robertson's affidavit and Smith's affidavit, the final distribution of construction funds in the amount of Five Thousand Seven Hundred Two Dollars and Seventy-Eight Cents ($5,702.78) was made to Robertson. Robertson signed the affidavit knowing that all bills had not been paid or, in some cases, had probably not been presented for payment. However, he thought that he had sufficient funds to pay all bills related to construction of the Smith's residence and meet his other obligations. In fact, Robertson did not have sufficient funds to meet all his obligations. In an attempt to meet his various obligations, Robertson liquidated his corporate and his personal assets but was unable to satisfy the L & M Builder Supplies, Inc. account on the Smith's house. Robertson admitted that he realized what he had done was wrong, and that he was sorry about the situation which has resulted. Robertson had personally guaranteed his corporation's account with L & M even before the lien was filed against the Smith's residence, but, as of the date of the hearing, Robertson had been unable to satisfy that account.

   
   

   CONCLUSIONS OF LAW

   
   

4. James F. Robertson is charged with executing a false affidavit in violation of Section 475.25(1)(a), Florida Statutes. Section 475.25(1)(a), supra, provides in pertinent part that a registrant's registration may be suspended if he is found guilty of fraud, misrepresentation, concealment, false pretense, dishonest dealings, trick, scheme or device in a business transaction. The section is unclear whether the prohibited conduct is limited to real estate transactions or can be extended to cover any transaction. A thrust of Chapter

   475 is to regulate those persons engaging in real estate dealings and the Florida Real Estate Commission's powers to regulate its registrants is tied to real estate dealings. However, the personal honesty and integrity of a registrant under Chapter 475 is a criteria for initial registration and bears directly on a registrant's continued right to exercise the privileges of a registrant. If a registrant is found to have violated a trust placed in him, or is found to have dealt dishonestly or fraudulently in a non real estate transaction, a character flaw is revealed which has direct bearing upon the registrant's fitness for continued registration with the Florida Real Estate Commission.

   
   

5. Robertson acknowledged that his affidavit was not correct, and that he had not paid all the subcontractors and materialmen. Therefore, although Robertson executed the affidavit while intending to pay all subcontractors and materialmen and while he thought he had the ability to do so, it was a violation of Section 475.25(1)(a), supra.

RECOMMENDATION

In making a recommendation in this matter, the Hearing Officer considers the following factors relating to James F. Robertson's fitness to be a registrant of the Florida Real Estate Commission. Robertson admitted that he realizes that he executed a false affidavit. Robertson did not falsify the affidavit with the intent to defraud anyone because he intended to pay all the subcontractors and materialmen and thought that he had the ability to pay them. Robertson pledged his personal assets to the payment of the L & M account print to the lien which indicates his intent to make good the account. Robertson is apparently concerned about the Smith's problem but has not been able to settle the account with L & M.

Based on the foregoing findings of fact, conclusions of law, and facts in mitigation, the Hearing Officer would recommend that the registration as real estate broker of James F. Robertson be suspended two years; and further, that this suspension be suspended as long as Robertson makes regular payments on the debt to L & M Builder Supplies, Inc., such that the debt will be liquidated at the end of the two year period and the lien against the Smith's home satisfied.

DONE and ORDERED this 29th day of March, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32303 (904) 488-9675

COPIES FURNISHED:

Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

James F. Robertson

c/o Gernada Realty, Inc. 2007 Parsons Avenue, North Seffner, Florida 33584

Docket for Case No: 76-002188

Orders for Case No: 76-002188