STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA REAL ESTATE COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 79-843
)
JAMES S. FORTINER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted in the above case on June
27 through 29, 1979 in Ft. Myers, Florida. The following appearances were entered: Frederick H. Wilsen, Orlando, Florida, for the Petitioner, Florida Real estate Commission; and H. Steven Frank, Ft. Myers, Florida, for the Respondent, James S. Fortiner.
On or about February 21, 1979, the Florida Real Estate Commission issued an administrative complaint charging the Respondent with various violations of the Florida Real Estate License Law, Chapter 475, Florida Statutes, and the rules and regulations of the Real Estate Commission. The complaint contains fourteen counts. The Respondent requested an administrative hearing, and on April 16, 1979 the matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled to be conducted as set out above by notice dated May 11, 1979. The Respondent filed a Motion to Dismiss and a Supplemental Motion to Dismiss which were denied by Order entered June 14, 1979.
At final hearing the Real Estate Commission called the following witnesses: Claude I. Allen, Jr., a registered real estate broker who was formerly employed by the Respondent; Stanley G. Courtney, who was involved in a real estate transaction with the Respondent serving as broker; Dorothy V. Gamble, who was involved in a financial transaction with the Respondent; William Whitacre, who was involved in a real estate transaction with the Respondent serving broker; Charles Lathrop, who was involved in a real estate transaction with the Respondent serving as broker; Mary E. Bishop, a real estate saleswoman who was formerly employed by the Respondent; Phillip E. Andrews, who was involved in a real estate transaction with the Respondent serving as broker; Loyal Tingley, Jr., who was involved in a real estate transaction with the Respondent serving as broker; Matthew W. Allen, IV, who was involved in a business transaction with the Respondent; John L. Thomas, who was involved in a business transaction with the Respondent; Gilbert W. Friedman, who was involved in a business transaction with the Respondent; William H. Melhorn, who was involved in a business transaction with the Respondent; Gloria Louise Kamp, the Operations Officer of the Southeast Bank of Ft. Myers; William James Swartz, a real estate broker who was involved in several business and real estate transactions with the Respondent; Charles B. Edwards, who was involved in a real estate transaction with the Respondent; Robert William Rockwell, who was involved in a real estate transaction in which the Respondent served as broker; Mary Barker, a records
custodian at the Barnett Bank; and Leo Wotitzky, an attorney who had a client involved in a business transaction with the Respondent.
The Respondent testified as a witness on his own behalf and called the following additional witnesses: Jack King, the Investigation Supervisor of the Florida Real Estate Commission; Howard Hadley, the General Counsel at the Florida Real Estate Commission; Tom Q. Carpenter, a salesman formerly employed by the Respondent; Arthur Hamel, the Vice Chairman of the Florida Real Estate Commission; Cordell Garner, a resident of Ft. Myers, Florida; Donald Swagler, who had business transactions with the Respondent; Calvin Lane, the Area Supervisor of the Ft. Myers Branch Office of the Florida Real Estate Commission; Donald Albion, an attorney who testified as to Respondent's good character; W. Thomas Howard, the President of the First Federal Savings and Loan Association of Ft. Myers, who testified as to the Respondent's good character; Mary Riley, a secretary who had been employed by the Respondent; William H. Shields, an attorney who served as counsel for the trustee in the Respondent's bankruptcy; and William H. Swartz, who was recalled.
FREC Exhibits 1-17 and Respondent's Exhibits 1-16, 19, and 21-26 were offered into evidence and were received. Respondent's Exhibits 17, 18, and 20 were offered into evidence, but were rejected. In response to motions made on the record at the final hearing, it was ruled that the Petitioner offered insufficient proof as to the allegations contained in Counts Seven and Nine of the Administrative Complaint, and that rulings to that effect would further be set out in the Recommended Order. The Respondent has filed a post-hearing legal memorandum and a proposed recommended order. The Petitioner has filed neither a post-hearing memorandum nor a proposed recommended order.
FINDINGS OF FACT
The Respondent was, at the time of the hearing and at all times material to this proceeding, registered with the Real Estate Commission as a real estate broker. During the period of the transactions involved in this proceeding the Respondent was operating and registered as an active broker and President of Fortiner Realty Company, which was a corporate real estate broker registered with the Commission.
In Count One of the Complaint, the Respondent is charged with failing to maintain a security deposit in his trust account in connection with a real estate transaction involving Phillip E. Andrews and Betsy K. Andrews, as sellers, and Joseph T. Lyons and Marion C. Lyons, as purchasers. In Count Two of the Complaint the Respondent is charged with converting the deposit in the Andrews-Lyons transaction to his own use.
During March, 1976, Claude I. Allen was employed at the Respondent's real estate office as a salesman. Allen negotiated a transaction between the Andrewses and the Lyonses. On March 17, 1976, the Lyonses made an offer to purchase the Andrews property and submitted a $1,000.00 deposit to Allen. On March 18, 1976 the $1,000.00 was deposited in the Respondent's trust account at the Palmer Bank of Ft. Myers. On March 22, 1976 the Andrewses accepted the offer and the Lyonses provided an additional $2,000.00 deposit to Allen. On that same date the $2,000.00 was deposited in the Respondent's trust account. The transaction closed on May 11, 1976. It was a smooth transaction. On May 110, 1976 $3,000.00 was withdrawn from the Respondent's trust account as a part of the transaction. During the entire time from March 17 through May 11, 1976, the monies deposited by the Lyonses remained on deposit in the Respondent's trust account.
There is no evidence to support a finding either that the Respondent failed to maintain the $4,000.00 in the trust account, or that he converted any part of the deposit for his own use.
In Count Three of the Complaint the Respondent is charged with failing to maintain a deposit in his trust account in connection with real estate transactions between Mac-Nel Ltd. and M & N Ltd. as sellers, and Stanley G. Courtney, as purchaser. In Count Four the Respondent is charged with converting all or part of the security deposit to his own use.
The Respondent was one of several partners in Mac-Nel Ltd. and M & N Ltd. On august 28, 1976, Stanley G. Courtney entered into separate contracts to purchase all of the property owned by the two partnerships. Through six separate checks Courtney made a deposit of $13,500.00 to the Respondent to be placed in the Respondent's trust account. The evidence is unclear as to when or in what manner the deposit was placed in the trust account, or whether all of it was in fact placed in the trust account. The bank records reflect that
$17,600.00 was placed in the Respondent's trust account on August 30, 1976, and it is possible that the Courtney checks formed a part of that deposit. During August and September, 1976, the Respondent's financial condition became grave. He had apparently defaulter on several notes to the Palmer Bank in which he had his trust account. The bank sued on the notes, and put a hold on the Respondent's accounts. In order to allow the Courtney transactions to close, the Respondent was able to withdraw allow a portion of the deposits made by Courtney form his trust account. He transferred his interest in the property to a Mr. Blankenship, so that Mr. Blankenship could close the transaction unfettered by the Respondent's financial plight. After he withdrew the money from his trust account, and forwarded it to Blankenship, the Respondent took no further part in the Courtney transaction either as a party to the transaction or as a broker. The closing of the transaction was delayed due in part to the Respondent's bankruptcy, however, it did close on October 29, 1976. Courtney was credited with the full amount that he had deposited with the Respondent.
It is clear that the Respondent did not maintain all of the monies deposited by Courtney in the trust account. His reason for failing to do that was to permit the transaction to close even though the Respondent had gone bankrupt. The evidence would not support a finding that the Respondent converted any portion of the Courtney deposit to his own use.
In Count Five of the Complaint the Respondent is charged with failing to maintain a deposit in his trust account in connection with a transaction involving Charles and Margaret Lathrop as sellers, and William and Jeannette Whitacre as purchasers. In Count Six the Respondent is charged with converting all or part of the deposit in that transaction to his own use.
On or about June 29, 1976, the Whitacres entered into a contract to purchase property from the Lathrops. The transaction was negotiated by Mary E. Bishop, a saleswoman who was employed by the Respondent in his real estate company. The Whitacres delivered a $6,500.00 check to Mrs. Bishop as a deposit on the transaction. The bank records received into evidence do not clearly reveal when or in what manner the Whitacre's deposit was placed in the Respondent's trust account. The bank statements do show a $7,000.00 deposit made into the Respondent's trust account at the Palmer Bank of Ft. Myers on July 1, 1976, and it is possible that the Whitacre's check was a part of that deposit. Bank records from other trust accounts maintained by the Respondent such as that at the Cape Coral Bank do not reveal any deposit that could have
been the Whitacre's check. The Lathrop/Whitacre transaction closed successfully on August 18, 1976, and the Whitacres were credited with the $6,500.00 that they had submitted to the Respondent's firm. It is apparent from the bank records that $6,500.00 was not on deposit at all times in the Respondent's trust account between July 1 and August 18, 1976. During most of that period the Respondent's balance in his trust account was less than $6,500.00.
No evidence was offered from which it could be concluded that the Respondent made any specific use of the money deposited by the Whitacres. It is apparent, however, that the money was not used as intended, i.e., it was not maintained in the Respondent's trust account.
In Count Seven of the Complaint the Respondent is charged with fraud, misrepresentation, and dishonest dealing in connection with his handling of the business of a partnership known as 27 Oaks Ltd.
The Respondent was the general partner in 27 Oaks Ltd. He was responsible for carrying on the business of the partnership for the benefit of eight limited partners. The partnership owned property which it was seeking to develop and sell in small parcels. On November 19, 1975, a mortgage payment in the amount of $21,300.00 was due from the partnership. In accordance with the partnership agreement, the Respondent solicited funds from the limited partners so that the mortgage payment could be made by letter dated October 15, 1975. The evidence does not reveal whether the Respondent received sufficient contributions from the limited partners to pay the mortgage payment. The evidence reveals only that he received $9,997.00 from the limited partners in response to his solicitation. The Respondent did not make the mortgage payment when it was due, but instead received a ninety-day extension. The new date was February 19. The principal payment on the mortgage was not made on that date, but instead, the Respondent made payments on the interest due. Ultimately the payment was made in a manner satisfactory to the mortgagee by early June, 1976.
The Real Estate Commission has charged that the Respondent received funds sufficient to make the mortgage payment in November, 1975, but that he applied the money to some other purpose. This contention is not supported by the evidence. The evidence does not reveal that the Respondent received sufficient money to make the mortgage payment. The bank records reveal that there was sufficient money in the 27 Oaks Ltd account to make the mortgage payment in November, and that the Respondent withdrew most of that money. The evidence does not establish that the Respondent improperly withdrew the money, or that the Respondent improperly withdrew the money, or that he put it to any but a valid partnership purpose. The Commission has also contended that the Respondent failed to maintain the monies he received from the limited partners in a trust account. Nothing in the partnership agreement requires that such monies be kept in a trust account, and the Respondent's failure to do so could not, therefore, constitute fraud or misrepresentation. Even if the contract were construed arguably to require that funds be placed in a trust account, certainly there are equally valid arguments that is does not.
In Count Eight of the Complaint the Respondent is charged with fraud, misrepresentation, and dishonest dealing in connection with his handling of the affairs of a Florida limited partnership know as Randag Properties Ltd.
During 1976 the Respondent was the sole general partner of Randag Properties Ltd. The partnership owned property which it was seeking to develop into apartments. The Respondent was responsible for carrying on the partnership business. The property consisted of more than 40 acres on a river and a
navigable canal. Part of the property was a small appendage which contributed little to the development potential of the property. In order to raise money to prepare the property for development, the Respondent sold the appendage to an ajoining property owner. That transaction closed on or about May 28, 1976. The Respondent had contributed more than $30,000 of his own money to the partnership in order to prepare the property for development. These expenditures included attorneys fees that he had incurred; a boundary survey, a high tide location survey, and a topographical survey; fees to the Florida Secretary of State's office; real estate taxes; land clearing expenses; and various miscellaneous expenditures. The Respondent had also made an advance to one of the limited partners. The Respondent applied most of the proceeds from the sale of the appendage to compensate himself for the expenditures that he had incurred. The Respondent had a disagreement with one of the limited partners, Mr. Swartz, as to whether the proceeds of the sale should be applied to compensate the limited partners for their initial investment or the Respondent for his expenditures.
The Respondent's applying the proceeds to compensate himself does not appear to be contrary to the partnership agreement and it does appear that he had validly incurred expenses on behalf of the partnership to which he was entitled to be compensated. The Respondent ultimately resigned as the general partner on October 12, 1976, in order to save the partnership from the consequences of his bankruptcy, and was replaced by Swartz. Early in October, 1976, the Respondent issued a promissory note to the partnership, but there was no showing that this promissory note was the consequence of any fraud, but rather that it was for the purpose of placing the partnership in a favorable position in relation to the Respondent's bankruptcy. The Respondent ended up losing money through his participation in the partnership while the limited partners ended by making a substantial profit.
All of the limited partners were advised of the sale of the appendage either prior to the sale or shortly after. There is no requirement in the partnership agreement that they be advised in advance of the sale, or that they assent to it.
The Respondent is charged in Count Nine of the Complaint with fraud, misrepresentation, and dishonest dealing in connection with a business transaction that he had with William K. Gamble and Dorothy V. Gamble. The allegations in essence are that the Respondent received loans from the Gambles, and that he pledged certain property as security for the loans. He was required under the terms of the promissory notes and the collateral assignment that accompanied them to provide other adequate security in the event that he sold any of the property that served as collateral for the loans. It is alleged that the Respondent sold the property, did not advise the Gambles, and did not substitute any other property as security for the promissory notes. The only testimony offered to establish that the property that served as collateral was sold was the testimony of Mrs. Dorothy V. Gamble. Mrs. Gamble had no direct knowledge that the property was in fact sold. It is apparent from the evidence that the Respondent has defaulted on the promissory notes.
In Count Ten of the Complaint it is alleged that the Respondent failed to maintain a deposit in his trust account in connection with a real estate transaction involving Herbert J. Haase and Katherine M. Haase, as trustees, the sellers, and Loyal H. Tingley as purchaser. In Count Eleven it is alleged that the Respondent converted all or part of the deposit to his own use.
On or about August 6, 1976, Tingley entered into a contract to purchase property from the Haases. Herbert Haase was a real estate salesman employed in the Respondent's real estate firm, and he held title to the subject
property in trust. The Respondent was the actual owner. Tom Carpenter, another salesman employed in the Respondent's firm, was the sales man in the transaction. Tingley delivered a $5,000 check to Carpenter as a deposit on the transaction. Another real estate broker, a Mr. Himmelrick, had negotiated mortgage modifications in connection with the sale. He and the mortgage bank insisted that the deposit be placed in Himmelrick's trust account. Accordingly, the Respondent deposited the $5,000 check from Tingley into his trust account, and delivered a $5,000 check from his trust account to Himmelrick. Carpenter advised Tingley that Himmelrick and the bank insisted upon having the $5,000 deposited in Himmelrick's trust account prior to the time that the check was forwarded from the Respondent's trust account to Himmelrick. Tingley consented to that arrangement.
While it is true that the Respondent did not keep the $5,000 deposit in his trust account, his failure to do so was with the consent of the purchaser, and resulted only in the deposit being placed in the trust account of a participating realtor. The evidence would not sustain a finding that the Respondent converted any part of the deposit to his own use.
In Count Twelve of the Complaint it is alleged that the Respondent issued over 22 checks drawn on his trust account wherein said checks were not honored for payment for the reason of insufficient funds; that the Respondent placed funds in his trust account that did not come from valid trust account sources; and that the Respondent caused his account to have a negative closing balance on May 13, 1876. The evidence would not sustain any finding that the Respondent issued checks which were not honored for payment. It is apparent from the bank records that several checks issued by the Respondent drawn on his trust account were not covered by the balance in the trust account. Bank records indicated a "OC" next to such withdrawals on the ledger sheets. The bank witnesses testified, however, that frequently such entries are honored by the bank and are not returned due to the insufficient funds.
The evidence would not sustain a finding that the Respondent placed money in his trust account that came from sources there were not proper for placing in a trust account. Nothing in the bank records offered into evidence demonstrates which deposits may not have been valid trust account deposits. The deposit slips merely show the payor of the checks. The bank records do reveal that the Respondent's trust account balance in the Palmer Bank of Ft. Myers on May 13, 1976 was a negative balance of $732.60.
On September 29, 1978, the Florida Real Estate Commission entered its final order finding the Respondent guilty of a of a violation of the Real Estate License Law. The Respondent's registration as a real estate broker was suspended for a period of ninety days. The Real Estate Commission Case Number was Progress Docket Number 3130.
All of the events involved in the instant proceeding occurred prior to the time that the final order was entered in Case Number 3130 and indeed prior to the time that the Complaint was issued in Case Number 3130.
The Respondent has enjoyed a very good reputation in his community for fair dealing, truthfulness and competence. None of the acts which the Respondent committed that led to the instant proceedings show that the Respondent has engaged in a course of conduct or in practices which demonstrate that he is so incompetent, negligent, dishonest and untruthful that the money, property, transactions and rights of others may not safely be entrusted to him.
The Administrative Complaint in Case Number 3130 before the Florida Real Estate Commission was issued on January 14, 1977. In included twenty-seven counts. All of the allegations related to the Respondent's dealings with various real estate salesman, and his alleged failure to share real estate commissions with the salesmen. In connection with the transactions involved, it was asserted in several counts that the Respondent failed to place deposits properly in his trust account. None of the charges in the first administrative complaint are grounded upon the facts alleged in the instant Administrative Complaint. The facts involved in the instant proceeding did, however, all occur at about the same time as the facts alleged in the first complaint, and all occurred prior to the date that the Administrative Complaint was filed in Case Number 3130. New facts came to the attention of the Commission due in part to comments made to one of the present real estate commissioners by a Ft. Myers resident. With diligent inquiry it is possible that the Commission could have discovered the facts which have resulted in the instant proceeding and included them as additional counts in the complaint in Case Number 3130. It has not, however, been shown that the Commission had reason to believe that it should make such diligent search and inquiry. B
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties.
In Count One of the Complaint the Respondent is charged with a violation of s. 475.25(1)(i), Florida Statutes. The statute provides:
The registration of a registrant may be suspended for a period not exceeding
two years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant 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 or banking institution located and doing business in Florida, or, deposit
said funds in a trust or escrow bank account maintained by him with some bank located and doing business in Florida, wherein said funds shall be kept until disbursement thereof is properly authorized.
The Commission has failed to sustain the allegations of Count One of the Complaint. It appears from the evidence that the Respondent properly deposited funds that he received in connection with the Andrews-Lyons transaction in his trust account, and that he maintained the funds in his trust account until the day before the closing of the transaction.
In Count Two of the Complaint the Respondent is charged with a violation of s. 475.25(1)(a), Florida Statutes, which provides that the registration may be suspended upon a showing that the registrant has:
(a) Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction, in this state or any other state, nation, or territory...
It is asserted that the Respondent wrongfully converted all or a portion of the deposit in the Andrews-Lyons transaction. This allegation has not been sustained. Count Two of the Complaint should be dismissed.
In Count Three the Respondent is charged with the violation of s. 475.25(1)(i). It does appear that the Respondent did not maintain the deposit in the Mac-Nel Ltd. and M & N Ltd. to Courtney transactions in his trust account. His reason for removing the funds from his trust account was to avoid them being frozen, and to allow the transaction to close. He did not, however, receive permission for that course of conduct from Courtney, and despite his good intentions, it is apparent that he violated the provisions of the statute.
In Count Four it is alleged that the Respondent converted all or a portion of the deposit in the Courtney transaction to his own use in violation of s. 475.25(1)(a), Florida Statutes. This allegation has not been sustained. While the Respondent did fail to maintain the deposit in his trust account he did not convert it to his own use, but rather removed it from the account to the benefit of the transaction. Count Four of the Complaint should be dismissed.
In Count Five the Respondent is charged with a violation of s. 475.25(1)(i), Florida Statutes, due to his alleged failure to maintain the deposit in the Lathrop-Whitacre transaction in his trust account. This allegation has been sustained, and the Respondent should be found guilty of the allegations of Count Five.
In Count Six it is alleged that the Respondent violated the provisions of s. 475.25(1)(a), Florida Statutes, in that he converted all or a portion of the deposit in the Lathrop-Whitacre transaction to his own use. The evidence does not reveal how the deposit was used by the Respondent if it was used at all. While his failure to place the deposit in the trust account cannot be excused, the evidence would not sustain a finding that the Respondent thereby committed any fraud.
In Count Seven the Respondent is charged with a violation of s. 475.25(1)(a), Florida Statutes. At the hearing it was preliminarily ruled that the Real Estate Commission had failed to establish the allegations of Count Seven through competent substantial evidence. It has not been established that the Respondent misused any funds in connection with his handling of the business of 27 Oaks Ltd. While it has been established that he received funds for the purpose of making a mortgage payment, it has not been established that he received sufficient funds to make the payment, or that he did other than properly and laudably delay the necessity for making the mortgage payment.
Count Seven of the Administrative Complaint should be dismissed.
In Count Eight the Respondent is charged with a violation of s. 475.25(1)(a). The Randag partnership agreement could possibly be construed to provide that the Respondent should have placed funds from the sale of the portion of the partnership's property in trust, or that he should have disbursed proceeds to the limited partners before compensating himself. These are only arguable constructions of the contract, however. It is also logical to construe
the contract to provide that the Respondent was not required to place the funds in a trust account, and that it was proper to compensate himself for expenses before the limited partners. Under these circumstances it would be inappropriate to find the Respondent guilty of any fraud of misrepresentation in connection with the transaction. Count Eight of the Complaint should be dismissed.
Count Nine charges the Respondent with a violation of s. 475.25(1)(a). At the hearing it was indicated that a recommendation would be made to dismiss Count Nine due to the failure of the Real Estate Commission to offer any direct testimony that would establish that the Respondent sold the property which served as collateral to the Gamble promissory notes. Only hearsay evidence to that effect was offered. While hearsay evidence can be properly admitted in administrative proceedings to supplement or explain other evidence, it cannot support a finding in itself unless it would be admissible over objection in civil actions. Mrs. Gamble's testimony that she heard of the sale would not be admissible over objection in a civil action. Count Nine of the Complaint should be dismissed.
In Counts Ten and Eleven the Respondent is charged with violations of
s. 475.25(1)(a) in the Haase-Tingley transaction. While it has been established that the Respondent did not maintain the deposit that he received from Tingley in his trust account, it is clear that the funds were placed in the trust account of a participating broker with the full knowledge and consent of Tingley. Counts Ten and Eleven should be dismissed.
The allegations of Count Twelve that the Respondent caused his trust account to have a negative closing balance on May 13, 1976 has been sustained. The remaining allegations of the count have not been sustained. While the negative balance does not in itself establish that the Respondent did not maintain monies entrusted to him in trust as to any particular transaction, since the only funds that should be deposited in a trust account are those with a valid trust account purpose, it is apparent that he did fail to maintain the trust account deposit of some person on May 13, 19796. The negative balance therefore constitutes a violation of s. 475.25(1)(i).
In Count Thirteen of the Complaint it is asserted that the Respondent's registration as a real estate broker should be revoked due to his having, for a second time, been found guilty of misconduct warranting suspension. Section 475.25(3), Florida Statutes, provides:
The registration of a registrant may be revoked if the registrant shall, for a second time, be found guilty of any misconduct that warrants his suspension under subsection (1) of this section...
The Respondent was the subject of an administrative complaint in Progress Docket Number 3130 of the Florida Real Estate Commission. He was found guilty of certain allegations of the complaint, and his license was suspended for a period of ninety days. All of the facts involved in the instant proceeding occurred prior to the time that the administrative complaint was filed in Case Number 3130. The clear purpose of Section 475.25(3) is to put registrants on notice once they have been found guilty of a violation can result in the permanent revocation of their license. That purpose would clearly not be served in the instant case since none of the acts have occurred since the time the Respondent was found guilty of certain violations in Case Number 3130.
It is appropriate that the Respondent's revocation be suspended for committing the trust account violations that have been sustained in this proceeding. These facts would not warrant a conclusion that the Respondent has been found guilty of a course of conduct or practices which show: "[T]hat he is so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him." s. 475.25(3), Florida Statues.
The Respondent has asserted that the doctrines of laches, res judicata or collateral estoppel should apply to bar the instant proceeding due to the action taken by the Real Estate Commission in Case Number 3130. This contention is without merit. If the Commission were seeking to prosecute the Respondent for the same acts as were the subject of Case Number 3130, then the complaint would properly be dismissed. See: e.g. Watkins v. Mississippi State Board of Pharmacy, 150 So. 277 (Miss. 1934). It has not been shown that the Real Estate Commission should have known of facts giving rise to the instant proceeding at the time that it filed and prosecuted Case Number 3130.
The Respondent has submitted proposed findings of fact, conclusions of law, and a recommended order. To the extent that the proposed findings and conclusions are consistent with the Findings of Fact and Conclusions of Law set out herein, they have been adopted. To the extent that they are not consistent, or go beyond the Findings of Fact and Conclusions of Law set out herein, they have been rejected either as legally insufficient, or as irrelevant to the proceeding.
RECOMMENDED ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby
That a final order be entered dismissing the allegations of Counts One, Two, Four, Six, Seven, Eight, Nine, Ten, Eleven, Thirteen and Fourteen of the Administrative Complaint.
That a final order be entered finding the Respondent guilty of the allegations set out in Counts Three, Five, and Twelve of the Administrative Complaint and suspending his registration as a real estate broker for a period of ninety (90) days.
DONE and ORDERED this 24th day of August, 1979, in Tallahassee, Florida.
STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings ROOM 101 Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Frederick H. Wilsen, Esquire Florida Real Estate Commission Post Office Box 1900
Orlando, Florida 32802
Stephen Frank, Esquire Post Office Box 2531
Fort Myers, Florida 33902
Mr. C. B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802
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AGENCY FINAL ORDER
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BOARD OF REAL ESTATE BOARD OF REAL ESTATE, an Agency
of the State of Florida,
Plaintiff, PROGRESS DOCKET
NO. 3464
vs.
LEE COUNTY
JAMES S. FORTINER, DOAH NO. 79-843
Defendant.
/
FINAL ORDER
At a regular meeting of the Florida Real Estate Commission held at its Executive Headquarters in Orlando, Florida, on November 20, 1979.
PRESENT: Arthur N. Hamel, Chairman
Virginia H. Bishop, Vice Chairman Garth C. Reeves, Jr., Member Sonny Wright, Member
APPEARANCES: H. Stephen Frank, Attorney for Defendant James S. Fortiner, in Person
John Huskins, Attorney for Plaintiff
This matter came on for Final Order on the Hearing Officer's Recommended Order, Exceptions thereto filed by both defendant and plaintiff, together with the record and argument of counsel for defendant and counsel for plaintiff, and
the Board having fully reviewed the record and being otherwise fully advised in the premises, finds:
1.
According to the records of the Board the defendant, James S. Fortiner, is presently licensed with the Board as a broker, active status, with business address: 2301 West 1st Street, Suite 13, Ft. Myers, Florida 33901.
2.
Defendant's Exceptions have been considered and are found not to be well taken, and should be denied by this Board.
3.
Plaintiff has taken Exceptions to the Hearing Officer's findings and Conclusions regarding Counts XIII and XIV of the Administrative Complaint regarding which the Hearing Officer found no course of conduct and therefore no application of the law (475.25(3), Florida Statutes, providing for revocation.
The Board finds that the Hearing Officer erred in his Finding and Conclusions of Law and should be rejected.
The Board finds that Plaintiff's Exceptions are well taken, and should be accepted as the Findings and Conclusions of the Board.
4.
The Board adopts the Hearing Officer's Findings of Fact, finding of violations and guilt as to:
Count III for failing to maintain deposit monies in his trust account in violation of Subsection 475.25(1)(i), Florida Statutes.
Count V for failing to maintain deposit monies in his trust account in violation of Subsection 475.25(1)(i), Florida Statutes.
Count XII for failing to maintain deposit monies in his trust account; and for reducing the account to a negative balance of approximately $739, in violation of Subsection 475.25(1)(i), Florida Statutes.
5.
Plaintiff's Exceptions to the Hearing Officer's recommendation that defendant's license be suspended for a period of ninety (90) days for his guilt as to the violations in County III, V and XII as being unduly mild is well taken and should be adopted by this Board.
IT IS THEREUPON ORDERED:
That Defendant's Exceptions be and they are hereby denied.
That Plaintiff's Exceptions be and they are hereby adopted.
That the Hearing Officer's Findings of Fact and Conclusions of Law and finding of guilt as to Counts III, V and XII are adopted by the Board.
That the Hearing Officer's Findings of Fact and Conclusions of Law as to County XIII and XIV are rejected by the Board. The Board adopts hereby
Plaintiff's Exceptions as to Counts XIII and XIV and finds a course of conduct as contemplated by Section 475325(3), Florida Statutes.
Accordingly defendant is guilty of Counts III, V and XII to the extent as stated above, and guilty of a course of conduct as alleged in Counts XIII and XIV.
For such violations the license of James S. Fortiner, defendant, as a licensed real estate broker be, and the same is hereby suspended for a period of six (6) months, said suspension to become effective on the effective date of this Order, as provided by law.
James S. Fortiner, defendant, shall immediately upon the effective date of this Order send his license to the Board of Real Estate at its Executive Headquarters in Orlando, Florida.
DONE and ORDERED at Orlando, Florida, this 20th day of November, 1979.
Arthur N. Hamel, Chairman
Virginia H. Bishop, Vice Chairman
Garth C. Reeves, Jr., Member
Sonny Wright, Member
I HEREBY CERTIFY that I mailed a copy of the foregoing Final Order to H. Stephen Frank, Attorney for Defendant, Suite 202, CAN-AM Building, 2180 West First Street, P.. O. Box 2531, Fort Myers, Florida 33902, by United States registered mail this 22nd day of January, 1980.
John Huskins
NOTICE TO DEFENDANT:
This Order shall become effective upon the 21st day of February, 1980.
However, you have a right to appeal, if you desire.
Please comply with this Order. We are including an envelope for your convenience in surrendering your registration certificate.
JH/vbs
================================================================= AGENCY MEMORANDUM
=================================================================
TO: Renata Hendrick, Registration Supervisor FROM: John Huskins, Assistant General Counsel SUBJECT: James S. Fortiner (broker)
PD 3464
DOAH 79-843
2 DCA 80-295
Supreme Court 60,436
DATE: May 12, 1981
EFFECTIVE DATE OF SUSPENSION
For your files I attach:*
FINAL ORDER of the Board of Real Estate, dated January 22, 1980, suspending license for six (6) months.
Second District Court of Appeal Order affirming the FINAL ORDER of the Board, effective March 19, 1981.
Second District Court of Appeal Order denying Fortiner's motion for rehearing dated, March 3, 1981.
Second District Court of Appeal Order denying Fortiner's motion for stay pending review (by Supreme Court) dated April 2, 1981.
Supreme Court refusing to review the matter, dated April 1, 1981.
Since Fortiner, through his lawyer, did not mail-in his certificate until April 27, 1981, it is this date that I regard as the date commencing his 6 month period of suspension.
JH/VJC
cc: Fred Wilsen
C. B. Stafford
*NOTE: Attachments to this memorandum are unavilable at the Division and therefore not a part of this ACCESS document.
| Issue Date | Proceedings |
|---|---|
| May 14, 1981 | Final Order filed. |
| Aug. 24, 1979 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 22, 1980 | Agency Final Order | |
| Aug. 24, 1979 | Recommended Order | Respondent was negligent in maintaining trust account. Recommend suspension of Respondent's license for ninety days. |
