STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-0476

) P.D. 3308

EVERETT A. HARPER, ) Seminole County

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a hearing officer with the Division of Administrative Hearings, in the Conference Room, Chamber of Commerce Building, 400 East First Street, Sanford, Florida, at 10:15 A.M., June 6, 1978. John Huskins, Esquire, Staff Attorney for the Florida Real Estate Commission, 400 West Robinson Street, Post Office Box 1900, Orlando, Florida 32802, appeared for the Petitioner. Although the Respondent had received proper notice of the hearing and of the pending administrative complaint, he did not attend the hearing.

ISSUES

Whether or not on or about February 17, 1969, the Respondent, Everett A. Harper, caused to be issued to Florida Pallet Corporation, by the Employers' Fire Insurance Company, a policy covering the business vehicles of Florida Pallet Corporation for which Harper received premiums from the insured on a monthly basis. Further, whether or not Harper failed to deliver or transmit the premiums to the insurer, resulting in the policy being cancelled flat for non- payment of premiums. Whether or not Harper failed to inform the insured of the cancellation of the policy, but nevertheless continued to receive the insured's premium payments monthly, without causing to be issued insurance coverage for Florida Pallet Corporation with another insurer. Finally, whether or not in July, 1969, a truck of the insured, Florida Pallet Corporation, was involved in an accident in which a claim was filed and in which Harper failed to advise the insured of the policy cancellation that had occurred a few months prior to the accident, and until February, 1970, continued receiving and accepting premiums.

These acts are alleged to have been accepting premiums. Section 475.25(1)(a), Florida Statutes, as being acts which show the Respondent to be guilty of fraud, misrepresentation, concealment, dishonest dealing, trick, scheme or device and/or breach of trust in the business transaction.

The acts also have allegedly constituted a violation of Section 475.25(1)(c), Florida Statutes, as being acts which show the Respondent to be guilty of failing to account for or deliver moneys which have come into his hands, which were not his, and which he was not entitled to retain, under the circumstances; thereby constituting conversion of those moneys.

The Petitioner has an additional contention under Section 475.25(3), Florida Statutes, to the effect that the acts as alleged constitute a course of conduct in violation of the purpose and intent of the section immediately referenced.

FINDINGS OF FACT

1. The Respondent, Everett A. Harper, is a Registered Real Estate Broker, who presently holds a non-active certificate of registration, giving an address of P. O. Box 1238, Sanford, Florida 32771. This non-active certificate of registration is held with the Petitioner, Florida Real Estate Commission.

   
   

2. From October 1, 1968, until April 29, 1970, which includes the time of the alleged acts of misconduct, the Respondent was the holds of a broker's certificate as a individual broker under the trade name "Harper-Gentry Real Estate," with office at 2465 South Park Avenue, Sanford, Florida 32771.

   
   

3. In that same period the Respondent, Everett A. Harper, was the holder of a General Lines Insurance Agent's license held with the Treasurer's Office of the State of Florida. While operating the insurance business, in February, 1969, the Respondent entered into an agreement with the Florida Pallet Corporation to obtain insurance coverage for the motor vehicles which were owned by the corporation. The arrangement between Harper and the corporation was to have the corporation pay an initial installment to activate that policy and to make monthly premiums in the future. The initial payment was made and Harper contacted the Employers' Commercial Union Companies, specifically the Employers' Fire Insurance Company, for purposes of having those companies insure that Florida Pallet Corporation for its automobile liability, in addition to Workmen's Compensation and general liability. (These latter two categories were apparently at the request of the Florida Pallet Corporation, although no testimony by their former president was presented from the representative of the insurance company, who testified in the course of the hearing.)

   
   

4. The facts further revealed that once the Orlando branch of the Employers' Commercial Union Companies had received the request for insurance, they declined coverage on the Workmen's Compensation and general liability portions of the request, but issued an automobile liability policy, subject to background checks on the prospective drivers' records and engineering reports. The automobile policy was issued to the Respondent's insurance agency. Within ten days to two weeks of the date of the issuance, the insurance company asked the Harper agency to return the automobile policy for cancellation because the background check had led the insurance company to decline the coverage. This request was honored by Everett A. Harper when he returned the policy with the indication "cancelled flat." This form of cancellation was allowed because no claim had been filed against the policy prior to the date of the cancellation.

   
   

5. The effect of the cancellation of the automobile policy was to cancel the policy from the date of inception. It also meant that the insurance company, to wit, the Employers' Commercial Union Companies, was not entitled to collect any moneys as premium payments, nor was Everett A. Harper entitled to keep those premium payments which he had received up to that moment or future premium payments which he might have received under the policy which has been alluded to. Harper could have placed a request for coverage with other companies if he had so desired. In fact, he did not make such a placement and kept the initial payment of premiums and continued to receive premiums over a period of the year 1969. The Florida Pallet Corporation was not notified of the cancellation of the policy or of Harper's failure to place their request for

   policy with another company, or the fact that Harper continued to receive the premium payments, which amounted to $1,270.00 a year for the automobile coverage. In addition, Harper neglected to advise the Florida Pallet Corporation that they were not covered by any insurance plan for their automobile liability needs.

   
   

6. Some six or eight months after the policy had been cancelled, one of the vehicles belonging to the Florida Pallet Corporation was in an accident, which necessitated protection under an insurance policy. Harper still failed to indicate the cancellation of the policy, the lack of placement of the coverage with a new company, and the fact that no coverage existed, when requested to protect the interests of the Florida Pallet Corporation. This request was made by the president of that corporation, Leo Voskan. Eventually, Voskan made an inquiry of the Employers' Commercial Union Companies in February, 1970, and was told that there was no coverage, in view of the fact that the policy had been cancelled at a time prior to any authorized claim being filed.

   
   

7. The claim arising from the automobile accident in 1969, involving the vehicle of the Florida Pallet Corporation, was paid by Harper, at a date beyond the time of the inquiry mentioned of February, 1970.

   
   

8. Under the facts as developed, Harper should have returned the premium payments to the Florida Pallet Corporation, indicating the fact of the lack of coverage by the Employers' Commercial Union Companies, or in the alternative, placed coverage with another insurance company. The failure to return those premium payments, or arrange for a policy with another company, and the failure to advise the Florida Pallet Corporation of their lack of coverage, show the Respondent, Everett A. Harper, to be guilty of fraud, misrepresentation, concealment, dishonest dealing, trick, scheme or device and/or breach of trust in a business transaction in violation of the provisions of Section 475.25(1)(a), Florida Statutes. It also shows that the Respondent, Everett A. Harper, is guilty of failing to account for or deliver moneys which have come into his hands, which were not his and which he was not entitled to retain, under the circumstances, of which he converted, in violation of Section 475.25(1)(c), Florida Statutes. Finally, these facts establish that the Respondent, Everett A. Harper, is guilty of a course of conduct or practice which shows that he is so dishonest and untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not be safely entrusted to him; in violation of Section 475.25(3), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

10. The facts as established show that the Respondent, Everett A. Harper, is guilty of a violation of Section 475.25(1)(a), Florida Statutes, and thereby subject to a penalties for such violation..

    
    

11. The facts as established show that the Respondent, Everett A. Harper, is guilty of a violation of Section 475.25(1)(c), Florida Statutes, and thereby subject to the penalties for such violation.

    
    

12. The facts as established show that the Respondent, Everett A. Harper, is guilty of a violation of Section 475.25(3), Florida Statutes, and thereby subject to the penalties for such violation.

RECOMMENDATION

Based upon a review of the facts as offered in this cause, it is, RECOMMENDED:

That the non-active real estate broker's registration of the Respondent, Everett A. Harper, be REVOKED.

DONE and ENTERED this 18th day of August, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

John Huskins, Esquire Staff Attorney

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Everett A. Harper Post Office Box 1238

Sanford, Florida 32771

Docket for Case No: 78-000476

Orders for Case No: 78-000476