STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-266

) PD 18561

GEOFFREY B. GORDON, )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a hearing in this case on March 24, 1981, in Tampa, Florida. The transcript was filed on April 9, 1981.

APPEARANCES

For Petitioner: John Huskins, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: NONE

This matter proceeded to bearing on the Petitioner's Administrative Complaint seeking to revoke or suspend the Respondent's real estate license or otherwise discipline him, for alleged violation of Section 475.25(1)(b), Florida Statutes. Specifically, the Complaint charges that the Respondent is guilty of fraud, misrepresentation, concealment and dishonest dealing, and breach of trust in a business transaction.

Although more than one communication was mailed to the Respondent at his address of record with the Board of Real Estate, only the Notice of Hearing was returned as not deliverable by the Post Office. No forwarding address was available. Since the initial order in this case, which had been sent to all parties including the Respondent on February 18, 1981, was not returned, and was sufficient to have put him on inquiry that this proceeding was pending against him, the hearing took place as scheduled on the Respondent's default.

The Petitioner presented one witness, who is the complaining party in this case. Four exhibits were received in evidence.

FINDINGS OF FACT

1. The Respondent is a real estate broker holding license number 0032735 issued by the Department of Professional Regulation, Board of Real Estate. His professional address of record is 2555 Enterprise Road, Suite 142, Clearwater, Florida 33515.

   
   

2. In May, 1974, H. M. Hunter, Jr., entered into a contract for the sale and purchase of real estate from the Respondent, Geoffrey B. Gordon and Linda M. Gordon, his wife. This contract provided for the buyer, H. M. Hunter, Jr., to assume two mortgages. The first mortgage required annual payments of $5,000 plus interest of 7 percent on the unpaid balance, with the first payment to be due in March, 1975. The second mortgage called for annual payments of $2550 plus interest of 7 1/2 percent on the unpaid balance, with the first payment due in May of 1975. This transaction was consummated, and a warranty deed was issued by Geoffrey B. Gordon and his wife, Linda M. Gordon, to H. M. Hunter, Jr., dated July 5, 1974.

   
   

3. On or about May 15, 1975, H. M. Hunter sent a check to the Respondent in the amount of $4,462.50, for delivery to Alma Young Laird, as payment of the second mortgage held by Laird on the property which Hunter had purchased from Gordon. The check was made payable to Geoffrey B. Gordon, and was endorsed and negotiated by him. This check was sent to the Respondent because Hunter did not know Laird's address, and the Respondent said he would see that Laird got it.

   
   

4. On or about May 15, 1976, Hunter was contacted by an attorney for Laird who advised Hunter that Laird had not received the annual mortgage payment and that Laird was contemplating filing a foreclosure suit. Hunter attempted to locate the Respondent, but could not find him for two years. As a result, Hunter had to make the payment a second time, and incurred additional interest expense because the payment was not timely made.

   
   

5. When Hunter finally located the Respondent, he found that the proceeds of the check had been converted to Gordon's own use because of his financial hardship. Since then, the Respondent has repaid approximately $4,000 to Hunter, but nothing has been paid as interest although at one time an interest rate of eight percent had been agreed upon.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 475.25(1)(b), Florida Statutes, authorizes the Board of Real Estate to suspend or revoke a real estate license, or impose an administrative fine not exceeding $1,000 for each separate offense, if it finds that a licensee has been guilty of "fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction. . .". The failure of Respondent to forward the check for $4,462.50 in payment of the second mortgage, to the mortgagee, after representing that he would do so, and conversion of the proceeds of this check to his own use, is a violation of this section of the Florida Statutes regulating the real estate profession. The fact that the Respondent committed this violation while dealing on his own behalf with his own property, and not while acting as a real estate licensee, does not exonerate him. Anderson v. Florida Real Estate Commission, 105 59.2d 918 (Fla. 2d DCA 1958), Carter v. Florida Real Estate Commission, 122 So.2d 420 (Fla. 2d DCA 1960). Thus, the purpose of this statute is to protect the public from the proscribed conduct of a licensee, no matter under what circumstances it occurs.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Geoffrey B. Gordon, pay a fine of $1,000

within 30 days from the date of the Final Order herein. If the Respondent should fail to make timely payment of this fine, it is

RECOMMENDED that license number 0032735, held by Geoffrey B. Gordon be revoked.

THIS RECOMMENDED ORDER entered on this 29th day of April, 1981.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1981.

COPIES FURNISHED:

John Huskins, Esquire Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Geoffrey B. Gordon 2555 Enterprise Road

Suite 142

Clearwater, Florida 33515

Docket for Case No: 81-000266

Orders for Case No: 81-000266