STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-137

)

LEONARD M. WOJNAR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on April 27, 1983, in Fort Lauderdale, Florida. The transcript was filed on May 12, 1983, and the parties requested time to submit proposed findings of fact and conclusions of law. These have been considered, and where not adopted they have been rejected as irrelevant or immaterial, or not supported by the weight of the credible evidence.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

Suite 101 Kristin Building 2715 East Oakland Park Blvd.

Fort Lauderdale, Florida 33306

For Respondent: Steven Warm, Esquire

101 North Federal Highway Boca Raton, Florida 33432

By an Administrative Complaint filed on December 13, 1982, the Respondent was charged with violations of Section 475.25(1)(a), (g) and (m), and Section 475.42(1)(g), Florida Statutes, in that when he applied for his real estate license in Florida, he did not disclose a proceeding against his license in Michigan, and his Michigan real estate license has been revoked.

In support of the allegations of the Complaint, the Petitioner presented two composite Exhibits, being verified copies of the Respondent's application for real estate licensure in Florida, and certified copies of the Michigan proceedings culminating with revocation of the Respondent's license in Michigan. The Respondent testified in his own behalf, and offered two exhibits, one of which was received in evidence, and the other of which was not received but made a part of the record.

FINDINGS OF FACT

1. The Respondent, Leonard M. Wojnar, is a licensed real estate salesman, having been issued license number 0372634.

   
   

2. The Respondent was a licensed real estate broker in the State of Michigan from approximately 1975 until his license was revoked on or about July 2, 1982.

   
   

3. In the fall of 1980, a Complaint was filed in Michigan against the Respondent. The Respondent appeared at a hearing in Michigan, after which this case was dismissed.

   
   

4. On or about February 3, 1981, the Department of Licensing and Regulation in Michigan contacted the Respondent by letter, notifying him of the Department's involvement with the complaint against him. This letter was received by the Respondent. By letter dated February 9, 1981, to the Michigan Department of Licensing and Regulation, the Respondent replied to the February 3, 1981 letter.

   
   

5. On or about May 12, 1981, the Michigan Department of Licensing and Regulation issued a formal Complaint against the Respondent, and served it on him on approximately May 13, 1981. There is no evidence to demonstrate that the Respondent received service of this Complaint, but based upon the earlier correspondence between the Michigan Department of Licensing and Regulation and the Respondent, the Respondent was on notice of a proceeding pending against him.

   
   

6. On May 22, 1981, the Respondent completed his application for licensure in Florida.

   
   

7. Thereafter, with the assistance of counsel in Michigan, the Respondent attended hearings and proceedings in the Michigan action against his real estate license.

   
   

8. The Respondent's Michigan license was revoked on or about July 2, 1982.

   
   

9. When the Respondent applied for his Florida license, he failed to disclose that a proceeding was pending against his license in Michigan, and he answered Question 15a on the Florida application in the negative. This question asks if any proceeding is pending in any state affecting any license to practice a regulated profession.

   
   

10. The Respondent contends that the revocation of his license by the Michigan authorities is invalid, and that legal proceedings are pending in Michigan to obtain restoration of his license there. He also contends that he was not aware of any proceeding pending against him when he answered Question 15a on the Florida application.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The Florida Real Estate Commission is empowered to take disciplinary action against a real estate salesman if he is found guilty of any of the acts

    specified in Section 475.25 or Section 475.42, Florida Statutes. The Respondent has been charged with violations of subsections 475.25(1)(a), (g) and (m), and 475.42(1)(g), which provide as follows:

    
    

    475.25(1)(a):

    Violated any provision of s. 475.42 or of s. 475.227(1):

    475.25(1)(g)

    Had a broker's or salesman's license re- voked, suspended, or otherwise acted against, or had an application for such licensure denied by the real estate licensing agency of another state, territory, or country.

    475.25(1)(m)

    Obtained a license by means of fraud, mis- representation, or concealment; or if the licensee is confined in any state or federal prison or mental institution; or if, through disease or deterioration, the licensee can no longer safely be entrusted to deal with the public or in a confidential capacity; or

    475.42(1)(g):

    No person shall make any false affidavit or affirmation intended for use as evidence by or before the board or a member thereof, or by any of its authorized representatives, nor shall any person give false testimony under oath or affirmation to or before the board or any member thereof in any proceeding authorized by this chapter.

    
    

13. The Respondent was aware in February, 1981, that an investigation was proceeding by the Michigan authorities against his real estate license in that state. Nevertheless, in his Florida application for licensure he denied that any proceedings were pending against him in any state. Thus, the Respondent is guilty of a violation of Section 475.25(1)(m) and of Section 475.42(1)(g), Florida Statutes.

    
    

14. The Respondent's license having in fact been revoked by the State of Michigan, he is thus guilty of a violation of Section 475.25(1)(g), Florida Statutes. His contentions relative to lack of notice from the Michigan authorities must be litigated there, and not in this proceeding. Florida has a right to rely upon orders issued by another state as long as such orders are in full force and effect in another state. If the Respondent is successful in rescinding the Michigan order revoking his license, he may seek appropriate relief in Florida from an order based upon such rescinded order. In the meantime, there is no dispute that an order revoking the Respondent's real estate license has been entered by the State of Michigan.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0372642 held by Leonard M. Wojnar be

REVOKED.

THIS RECOMMENDED ORDER entered this the 21st day of July, 1983, in Tallahassee, Florida.

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 21st day of July, 1983.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101 Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Steven Warm, Esquire

101 North Federal Highway Boca Raton, Florida 33432

William M. Furlow, Esquire Department of Professional

Regulation

Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

Harold Huff, Executive Director Florida Real Estate Commission

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

Fred Roche, Secretary Department of Professional

Regulation

Old Courthouse Square Bldg.

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000137

Orders for Case No: 83-000137