STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-3266

)

ISADORE CAGAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Bearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 2 June 1982 at Clearwater, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: W. Thompson Thorn, III, Esquire

711 Grand Central Street, Suite B Clearwater, Florida 33515

By Administrative Complaint filed 10 December 1981, the Department of Professional Regulation, Board of Real Estate, Petitioner, seeks to revoke, suspend or otherwise discipline the real estate license of Isadore Cagan, Respondent. As grounds there for it is alleged that Respondent obtained his license fraudulently by claiming to be a resident of Florida when he submitted his application on May 15, 1975.

At the hearing Petitioner called one witness, Respondent testified in his own behalf, and six exhibits were admitted into evidence. The parties stipulated that Respondent is currently licensed by Petitioner as a real estate salesman.

Proposed findings submitted by the parties and not included below were deemed irrelevant to the results reached.

FINDINGS OF FACT

1. In his application for registration as a real estate salesman submitted and sworn to on 29 January 1975, Respondent answered yes to the question, "Are you a resident of the State of Florida?" At this time Respondent listed his residence address as 2101 Bunch Pointe Road, Clearwater, Florida.

2. On 30 October 1974 Respondent filed a Declaration of Domicile and Citizenship in Pinellas County, Florida (Exhibit 4). He became qualified to vote in Pinellas County on June 23, 1976 (Exhibit 6).

   
   

3. On 10/31/74 Respondent was issued a Florida Driver's License on which his address is shown as 2255 Minneola Road, Clearwater, Florida 33515 (Exhibit 5).

   
   

4. Respondent was in the clothing business in Chicago, Illinois, and was registered as a real estate broker in the State of Illinois, which registration expired 10-31-76 (Exhibit 3).

   
   

5. Respondent separated from his wife in 1972 and moved to Florida in 1974. He continued to support his family and provided funds to keep the residence held in Respondent's name (not necessarily as sole owner) subsequent to this separation.

   
   

6. While residing in Florida, a default judgment was entered against Respondent on March 3, 1977, in the Circuit Court of Cook County, Illinois, in the case of Friedman v. Cagan. To preclude attachment of the home in which his family resided, Respondent, on the advice of his attorney, filed a sworn affidavit on 27 April 1978 (Exhibit 1) in the case of Friedman v. Cagan in which he stated, in effect, that the home in Skokie, Illinois, was his domicile. Petitioner's complaint of fraudulently obtaining a real estate registration is based solely upon this affidavit.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 475.17(1), Florida Statutes, provides in pertinent part:

   
   

   An applicant for licensure who is a natural person shall be 18 years of age, a bona fide resident of the state, honest, truthful, trustworthy and of good character.

   
   

9. Section 455.10, Florida Statutes, provides no person shall be disqualified from practicing a profession because he is not a citizen of the United States.

   
   

10. While Section 475.17(1) specifies the applicant must be a bona fide resident of this state and does not mention domicile, from the evidence presented it is concluded that in January 1975 Respondent was domiciled in Florida.

    
    

11. Section 97.041, Florida Statutes, provides generally that any person at least 18 years old who is a citizen of the United States and a permanent resident of Florida and the county where he wishes to register, may register to vote in Florida.

12. Permanent residence is synonymous with domicile. 20 Fla.Jur. 2d s7 Domicil and Residence. While "bona fide" residence may or may not equate to domicile, for the purpose of this Recommended Order it is assumed that domicile in Florida is a requisite for registration as a real estate salesman. While a person may have more than one residence, he may have only one domicile. Id.

    s5. It is also well settled that a domicile once established continues until it is superseded by a new domicile and the old domicile is not lost until a new one is acquired. Id. s11.

    
    

13. The two elements essential to the acquisition of a new domicile are residence in a new locality, coupled with an intent to make such place of residence one's home. Id. 13. When Respondent moved to Florida in 1974, he completed one of those elements. When he filed his Declaration of Domicile on

    30 October 1974 he demonstrated his intent to make Florida his permanent home and completed the second element. It is noted that on Exhibit 4 the printed portion of the form provides " . . . I have changed my domicile to and am and have been a bona fide resident of the State of Florida since ". This wording tends to support the conclusion that bona fide residence equates to domicile.

    
    

14. Before Respondent signed the affidavit in Illinois (Exhibit 1), he was domiciled in Florida and had been so domiciled since he completed the two elements above noted, viz, presence and intent to remain. He was a domiciliary of Florida at the time he submitted his application for registrations as a real estate salesman on 24 January 1975. Accordingly, Petitioner has failed to prove that Respondent was not a bona fide resident at the time he submitted an application for registration. Not only has Petitioner failed to prove this allegation, but all of the evidence available at the time Respondent submitted his application leads to the conclusion that Respondent was a bona fide resident of Florida and that he was domiciled in Florida at that time.

    
    

15. The affidavit (Exhibit 1) executed by Respondent in 1977, which on its face tends to negate Respondent's domicile in Florida, is no better evidence of domicile than is Exhibit 4, if as good. Exhibit 4 is a specific declaration of domicile, while Exhibit 1 was executed to keep the home occupied by Respondent's family out of the hands of a judgment creditor.

From the foregoing it is concluded that on 29 January 1975 when Respondent applied for registration as a real estate salesman, he was a bona fide resident of Florida and a domiciliary of this state. It is, therefore,

RECOMMENDED that this Administrative Complaint be dismissed and this case closed.

ENTERED this 24th day of June, 1982, at Tallahassee, Florida.

K. N. AYERS, 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 24th day of June, 1982.

COPIES FURNISHED:

James H. Gillis, Esquire C. B. Stafford

Department of Professional Executive Director Regulation Florida Real Estate

130 North Monroe Street Commission Tallahassee, Florida 32301 Post Office Box 1900

Orlando, Florida 32802

W. Thompson Thorn, III, Esquire 711 Grand Central Street, Suite B Clearwater, Florida 33515

Frederick H. Wilsen, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-003266

Orders for Case No: 81-003266