STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE )

COMMISSION, )

)

Petitioner, )

vs. ) CASE NO. 78-1448

) P.D. NUMBER 3238

RAY SANS, Broker, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on November 20, 1978, in Miami, Florida.

APPEARANCES

For Plaintiff: Kenneth M. Meer, Esquire

Staff Counsel

Florida Real Estate Commission

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

For Defendant: Ray Sans

6820 Indian Creek Drive, Slip A Miami Beach, Florida 33141

The Florida Real Estate Commission ("Commission") issued an Administrative Complaint against the Defendant on August 25, 1977. Thereafter, on August 15, 1978, in accordance with the provisions of Section 120.57(1)(b), Florida Statutes, the Commission requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled for October 31, 1978, by Notice of Hearing dated September 18, 1978. Thereafter, on Motion for Continuance filed by the Commission, the hearing was rescheduled for November 20, 1978, by Amended Notice of Hearing dated November 2, 1978.

The initial Administrative Complaint filed against Defendant contained three counts. However, at the final hearing in this cause, the Commission voluntarily dismissed Counts 1 and 2 of the Administrative Complaint.

Accordingly, the final hearing proceeded on the allegations contained in Count 3 which, in essence, alleged that the Defendant falsely represented on his application for registration as a real estate broker that he had served an apprenticeship as a real estate salesman with a registered real estate broker in the State of Florida for twelve consecutive months within the five-year period prior to the date of that application. The Commission contends that the Defendant's answer was false, that he knew it to be false when made, that by reason thereof the Defendant did not possess the necessary qualifications to

register as a real estate broker, and that he obtained his registration by fraud, misrepresentation or concealment in violation of Chapter 475, Florida Statutes. At the final hearing, the Commission called the Defendant as its only witness, and the Defendant also testified in his own behalf. The Commission offered Plaintiff's Exhibits Nos. 1 and 2, both of which were received into evidence. The Defendant offered no documents into evidence.

FINDINGS OF FACT

1. Defendant, Ray Sans, is currently registered as a real estate broker in the State of Florida, holding Certificate No. 0077190.

   
   

2. On April 2, 1973, Defendant submitted a Requests for Registration Certificate as a registered real estate salesman in the employ of Southeast Land Corporation. The Defendant's application was also signed by Darien Kendall, a registered real estate broker in the State of Florida, who also served as Vice President of Southeast Land Corporation. The application form recites that the applicant was to be "exclusively connected" with Southeast Land Corporation, which indicated its willingness to carefully supervise the applicant in his activities as a registered real estate salesman.

   
   

3. On April 3, 1973, Defendant, Ray Sans, and Darien Kendall, as apprenticing broker, signed a Declaration of Employment for Apprenticeship Purposes, pursuant to Rule 21V-2.24, Florida Administrative Code, which was received by the Florida Real Estate Commission on April 9, 1973.

   
   

4. On May 21, 1973, Defendant, Ray Sans, submitted a second Request for Registration Certificate as a registered real estate salesman in the employ of Store Realty Corporation. This request was also signed by Robert Pepper, President of Store Realty Corporation, and a registered Florida real estate broker. The application form indicates that Defendant, Ray Sans, was to be "exclusively connected" as a real estate salesman with Store Realty Corporation.

   
   

5. On May 21, 1973, Defendant, Ray Sans, and Robert Pepper, as apprenticing broker, signed a Declaration of Employment for Apprenticeship Purposes, indicating that Defendant, Ray Sans, was to be employed as a real estate salesman with Store Realty Corporation, pursuant to the provisions of 21V-2.24, Florida Administrative Code. This declaration was received by the Florida Real Estate Commission on May 24, 1973.

   
   

6. On July 27, 1973, a Notice of Termination of Salesman's Employment was signed by a representative of Store Realty Corporation, indicating that Defendant, Ray Sans, had resigned from the employ of Store Realty Corporation, indicating that Defendant, Ray Sans, had resigned from the employ of Store Realty Corporation, effective July 27, 1973, and that his services while in the employ of that company had been satisfactory.

   
   

7. Defendant, Ray Sans, returned to the employ of Southeast Land Corporation in September of 1973, and remained in the employ of that company as a real estate salesman until February, 1975. Defendant testified that he completed a Declaration of Employment for Apprenticeship Purposes after his return to Southeast Land Corporation in September of 1973, but that he did not know whether his employer, or his supervising broker, Sam Stier, ever mailed the declaration to the Commission for filing.

   
   

8. Thereafter, Defendant filed an application for registration as a real estate broker with the Commission on January 16, 1975, and, after passing the

   required examination, received his license as a registered real estate broker on March 17, 1975. The application submitted by Defendant to the Commission contained the following question in Paragraph 16(a): "Have you served an apprenticeship as a real estate salesman with a registered real estate broker in the state of Florida for the 12 consecutive months within 5 years next prior to the date of this application?" Defendant answered this question in the affirmative, and in addition, gave the name and address of Darien Kendall, a registered real estate broker in the State of Florida, and Vice President of Southeast Land Corporation, as the broker with whom he had served his apprenticeship. There is nothing in the record to indicate that the Commission ever contacted Ms. Kendall to verify whether Defendant had, in fact, served such apprenticeship.

   
   

9. Shortly after receiving his real estate broker's license on March 17, 1975, Defendant left the employ of Southeast Land Corporation. Both Southeast Land Corporation and Store Realty Corporation have since gone out of business.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1) and 120.60, Florida Statutes.

    
    

11. In license revocation or suspension proceedings undertaken pursuant to Section 475.25, Florida Statutes, the burden of establishing that a licensed real estate broker has violated the Florida Real Estate License Law lies with the Commission. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973).

    
    

12. Defendant is charged in the Administrative Complaint with a violation of Section 479.17(3), Florida Statutes, which provides that:

    
    

    No person shall be registered as a real estate broker unless, in addition to the other requirements of law, he shall have held an active real estate salesman's registration certificate in the office of one or more registered real estate brokers for at least twelve months during the preceding five years. [Emphasis added].

    
    

13. Defendant is also charged with violating Section 475.25(2), Florida Statutes, which provides that:

    
    

    The registration of a registrant shall be revoked if such registration, or a certificate issued thereon, is found to have been obtained by the registrant by means of fraud, misrepresentation, or concealment . . . and a registration or

    a certificate may be revoked or cancelled

    . . . if the same shall have been granted or issued through the mistake or

    inadvertence of the Commission. [Emphasis added].

14. The Commission admits that the Defendant was properly registered as an apprentice with Southeast Land Corporation from April 3, 1973, through and including May 21, 1973, at which time he was properly registered as a real estate salesman with Store Realty Corporation. He continued in that capacity with Store Realty Corporation until July 27, 1973, and in September of 1973 resumed his employment with Southeast Land Corporation. Although the Defendant contends that he properly completed the necessary forms for registration as an apprentice during the some fifteen months of his second employment with Southeast Land Corporation, the Commission denies the assertion. The Commission attempts to prove the Defendant's failure to file as an apprentice from the time of his termination on July 27, 1973, as an employee of Store Realty Corporation, until the time of Defendant's application for issuance of a real estate broker's license in January of 1975 by way of an affidavit of the Commission's Executive Director and Supervisor of Registration, together with certain attached documents. The Executive Director and the Supervisor of Registration were not called as witnesses at the final hearing, so that their testimony was not qualified as an exception to the hearsay rule in accordance with the provisions of the Uniform Business Records as Evidence Act, Section 92.36, Florida Statutes. Accordingly, the Affidavit of the Executive Director and the Supervisor of Registration for the Commission constitute hearsay evidence, and, as such, is not sufficient in itself to support a finding of fact. Section 120.58(1)(a), Florida Statutes.

    
    

15. There is no competent evidence in the record in this cause on which to base a finding that Defendant did not possess the necessary qualifications to register as a real estate broker in violation of either Section 475.17(3), Florida Statutes, or Section 475.25(1)(d), Florida Statutes. Further, there is no evidence that Defendant obtained registration as a real estate broker by fraud, misrepresentation or concealment in violation of Section 475.25(2), Florida Statutes, or Section 475.25(1)(d), Florida Statutes.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

1. That a Final Order be entered by the Florida Real Estate Commission dismissing the Complaint against Defendant, Ray Sans.

RECOMMENDED this 15th day of February, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

MAILING ADDRESS: Room 530

Carlton Building Tallahassee, Florida 32304 904/488-9675

COPIES FURNISHED:

Kenneth M. Meer, Esquire Staff Counsel

Florida Real Estate Commission

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

Mr Ray Sans

6820 Indian Creek Drive, Slip A Miami Beach, Florida 33141

Docket for Case No: 78-001448

Orders for Case No: 78-001448