STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Florida Real Estate ) Commission, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2574

) JAMES H. DAVIS and REAL ESTATE ) LEARNING INSTITUTE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on November 21, 1983, in Daytona Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

For Respondents: James H. Davis, pro se

Real Estate Learning Institute, Inc. 1127 Ridgewood Avenue

Holly Hill, Florida 32017

The issue for determination at the final hearing was whether the real estate license of the Respondents should be disciplined for allegedly offering a real estate education course that contained less than the prescribed 51 hours.

Petitioner's Exhibit 1 and Respondents' Exhibits 1 and 2 were offered and admitted into evidence. Charles Hoeck, education examination supervisor for the Department of Professional Regulation, Sherry Hargis, the complainant, and Crawford Richardson, a real estate investigator for the Department of Professional Regulation, testified for the Petitioner. Ronald M. Latcheran, a physician in Ormond Beach, Florida, David Stanley, a real estate salesman for Coldwell-Banker, Daytona Beach, Florida, Margaret Bussell, a real estate salesman for Adams Realty, Daytona Beach, Florida, Elysia Patterson, a student in the Respondent's real estate school and William Emery, an attorney in Ormond Beach, Florida, testified for the Respondent.

A Proposed Recommended Order containing findings of fact has been submitted by the Respondents and considered in the preparation of this Recommended Order. To the extent that the proposed findings of fact were consistent with the weight

of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. At all material times the Respondent James H. Davis, was a licensed real estate broker and real estate school permit holder having been issued license numbers 0147489 and 30428, respectively. The Respondent Real Estate Learning Institute, Inc., is a real estate license school holding license number 43280.

   
   

2. During the period December 3-15, 1982, the Real Estate Learning Institute offered a "salesman weekend" instruction course in real estate principles, practice and law. The Respondent Davis was the course instructor and certified in writing that the four students enrolled in the course had completed 51 hours of coursework.

   
   

3. All of the students successfully completed the real estate course offered by the Respondents except Sherry Bargis, the complainant, who failed the end of course examination.

   
   

4. A review of the Respondents' class schedule for the period December 3- 12, 1983, revealed that 50 hours of instruction were scheduled. The classroom records for the period in question in the instant case were not available but were estimated by the Petitioner to include approximately 50 hours of instruction minus two hours of weekend lunch breaks.

   
   

5. The Respondent conceded that the records of the Real Estate Learning Institute for the period in question were not properly maintained and that the school offered only 50 hours of instruction on one other occasion. However, when the Petitioner informed the Respondent of the hourly discrepancy, the problem was immediately corrected.

   
   

6. The Respondents have a good reputation in the community and have not been the subject of any prior administrative proceedings. The Respondent's failure to offer 51 hours of instruction at the school has not reoccurred. This problem resulted from unintentional inadvertence rather than a knowing disregard of applicable statutes and rules.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The Respondents are charged with violating Rules 21V-3.08(1), 21V- 3.08(4) and 21V-3.08(8), Florida Administrative Code, which require that the initial real estate course offered at licensed real estate schools, consist of

   51 classroom hours of fifty minutes each, that attendance at such course must be certified by a licensed person and that each school shall inform students of the course requirements and enforce the same.

9. The Petitioner has demonstrated by clear and convincing evidence that a violation of Rule 21V-3.08(1), Florida Administrative Code, occurred in that the Respondent offered 48 hours of instruction rather than the 51 hours required during the December, 1982, initial real estate course offered at the Real Estate Learning Institute. As such, the Petitioner also established a violation of Section 475.25(1)(e), Florida Statutes, which authorizes the Florida Real Estate Commission to take disciplinary action against a licensee and/or permit holder for violating any rule made or issued under Chapters 475 or 455, Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Florida Real Estate Commission enter a Final Order finding the Respondents guilty of violating Rule 21V-3.08(1), Florida Administrative Code and Section 475.25(1)(e), Florida Statutes, and placing them on probation for a period of one year during which time the Respondent Davis will be required to certify to the Commission the class schedules and total hours of classroom instruction offered at the Real Estate Learning Institute.

DONE and ENTERED this 15th day of March, 1984, in Tallahassee, Florida.

SHARYN L. SMITH

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 15th day of March, 1984.

COPIES FURNISHED:

James H. Davis

Real Estate Learning Institute, Inc. 1127 Ridgewood Avenue

Holly Hill, Florida 32017

Frederick H. Wilsen, Esquire Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Frederick H. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs. CASE NO. 0032777

DOAH CASE NO. 83-2574

JAMES H. DAVIS and REAL ESTATE LEARNING INSTITUTE INC.,

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on April 17, 1984, to issue a Final Order.

Hearing Officer Sharyn L. Smith of the Division of Administrative Hearings presided over a formal hearing on November 21, 1983. On March 15, 1984, she issued a Recommended Order which is adopted by the Florida Real Estate Commission as to all Findings of Fact and Conclusions of Law. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

However, as to the Recommendation, after a complete review of the record the Florida Real Estate Commission hereby finds that the Hearing Officer's Recommendation that the Respondents be placed on probation is not authorized by law. It is therefore ORDERED that Respondents James H. Davis and Real Estate Learning Institute Inc. be, and they are hereby, publicly reprimanded; and that each Respondent shall pay an Administrative Fine of $250 to the Department of Professional Regulation on or before the effective date of this Order.

This Order shall be effective thirty (30) days from the date of filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 17th day of April 1984 in Orlando, Florida.

BRIAN J. LADELL, Chairman Florida Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by

U.S. Mail to: James H. Davis and Real Estate Learning Institute Inc., 1127 Ridgewood Avenue, Holly Hill, Florida 32017; to John Huskins, Staff Attorney, Dept. of Professional Regulation, P O Box 1900, Orlando, Florida 32802; and to Hearing Officer Sharyn Smith, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301, this 3rd day of May 1984.

Harold R. Huff, Director

Docket for Case No: 83-002574

Orders for Case No: 83-002574