STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-800

) (PD 18287 - Lee County)

GEORGE F. LEWIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 30, 1980, in Fort Myers, Florida. Pursuant to the parties' stipulation, the hearing officially closed on November 10, 1980, the date the parties were allowed to submit memoranda of law respecting the admissibility as evidence, letters obtained by the investigator from Respondent during the course of his investigation of the instant matter.

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

Department of Professional Regulation 2009 Apalachee Parkway

The Oakland Building Tallahassee, Florida 32301

For Respondent: H. Stephen Frank, Esquire

Suite 202, Pan-Am Building 2180 West First Street Post Office Box 2531

Fort Myers, Florida 33902

ISSUE

The issue posed for decision herein is whether or not the Respondent, George F. Lewis, based on conduct which will be set forth hereinafter in detail, has engaged in acts amounting to a violation of Chapter 475.25(1)(a), Florida Statutes.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, memoranda of law submitted by the parties post-hearing, and the entire record compiled herein, the following relevant facts are found.

1. By its Administrative Complaint filed on January 31, 1980, the Board of Real Estate (herein Petitioner) seeks to suspend or otherwise discipline Respondent, George F. Lewis's real estate license and his right to practice thereunder based on the material allegations that during a contract which Respondent entered into between Mr. and Mrs. Dwight L. Strong for the purchase and sale of a residence in Fort Myers, Florida, Respondent failed to properly convey the premises based on the manner in which he transferred the assumption of the mortgage and his handling of the earnest money deposit tendered by the Strongs to purchase the residence in question. Based thereon, it is alleged that Respondent engaged in acts amounting to a breach of trust, false promises and a failure to deliver within the meaning of Chapter 475.25(1)(a), Florida Statutes.

   
   

2. The parties stipulated that during times material herein, Respondent was registered with the Petitioner as a licensed real estate broker.

   
   

3. The facts are also undisputed that on February 14, 1977, Respondent entered into a contract for the sale and purchase of a residence with Dwight L. Strong, herein called the Buyer, to purchase property known as 3309 Michigan Avenue, Fort Myers, Florida, for a purchase price of $18,300.00. Although the contract recites that Dwight T. and Edith M. Strong are the Buyers, the contract was signed only by Dwight Strong. Pursuant to the terms of that contract, the Buyers were to assume an existing mortgage and the Strongs tendered an earnest money deposit of $350.00 to Security Realty, Inc., a corporation in which Respondent was an officer.

   
   

4. Mrs. Edith M. Strong appeared as a witness in these proceedings. Mrs. Strong acknowledged that their residence was purchased from Respondent; however, she was unfamiliar with and not privy to any details of the contractual arrangements between Respondent and her husband, Dwight L. Strong. Mrs. Strong was not a signator to the contract in question.

   
   

5. Respondent also called Gerald Shea, the investigator with the Department of Professional Regulation assigned to investigate the complaint respecting Respondent's handling of the transaction involving the Strongs.

   
   

6. During the course of Investigator Shea's investigation of the subject complaint, Respondent authored two letters in response to the allegations raised by the complaint. Petitioner's counsel contends that such letters are admissible as admissions against interest, whereas Respondent's counsel objects to their admissibility, contending that the letters from Respondent dated May 25 and June 5, 1979, are inadmissible since the proceedings herein are penal in nature and the Fifth Amendment Constitutional guarantee that no person may be compelled to testify against himself in a criminal proceeding, is applicable herein.

   
   

7. Investigator Shea's credited testimony is that Respondent was in no manner compelled or otherwise forced to submit the letters which are the subject of this discussion. In fact, Investigator Shea indicated that it was Respondent who suggested that he file a written response to the complaint allegations. In these circumstances and in the absence of a showing of fraud, error, mistake or other inadvertence, it appears that such letters which Respondent prepared, signed and mailed to Investigator Shea on May 25, 1979, and June 5, 1979, pertaining to the subject transaction are admissible since the letters are competent evidence within the meaning of Chapters 120.58, Florida Statutes, and Chapter 90.803(15), Florida Statutes Annotated.

8. Having considered that the letters are competent evidence and are therefore admissible, and after examining the contents thereof, paragraph three

   (3) of the May 1979 letter reveals in pertinent part that, "I am certain that it may look that I am operating in a shabby manner. . ."

   
   

9. Paragraph five (5) of the June 5, 1979, letter indicates in pertinent part that, ". . . Now after careful examination of the receipts and checks, I find that we did not handle this transaction at all properly." The sixth (6th) paragraph of the June 1979 letter reveals that, "At this point all that I can offer in my defense is the fact that I did make more than full restitution, including payments that the Strongs truly did not make." And in the concluding paragraph, "Through this entire transaction, there was never any intent of wrongdoing. Hopefully, after you have reviewed all the facts, you will agree."

   
   

10. Turning to the complaint allegations, comparing the above alleged admissions by Respondent in the above letters to the material allegations, there is first no independent proof of any breach of trust, false promises, or a failure to deliver as alleged in the complaint. Nor do the above "admissions" substantiate, support a conclusion or otherwise justify a finding that Respondent engaged in acts and/or conduct amounting to a breach of trust, false promises or a failure to deliver. I shall so recommend.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The parties wore duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

13. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

    
    

14. Letters received by an investigator from a party Respondent during the course of an investigation, which contain admissions of fact, are competent and admissible as an exception to hearsay in administrative proceedings pursuant to Chapter 120.58, Florida Statutes, and Chapter 90.803(18), Florida Statutes Annotated.

    
    

15. Insufficient evidence was offered to establish that the Respondent engaged in acts and/or conduct amounting to a breach of trust, false promises or a failure to deliver based on his real estate dealings with the Strongs as alleged, in violation of Section 475.25(1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Complaint filed herein be DISMISSED.

RECOMMENDED this 5th day of December, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1980.

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Department of Professional

Regulation

2009 Apalachee Parkway

Tallahassee, Florida 32301

H. Stephen Frank, Esquire Suite 202, Pan-Am Building 2180 West First Street Post Office Box 2531

Fort Myers, Florida 33902

Nancy Kelley Wittenberg Secretary

Department of Professional Regulation

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 80-000800

Orders for Case No: 80-000800