STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0138 and

) 85-1689

GARY DEAN UPTON & DEAN UPTON ) REALTY, INC., )

)

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 these cases on June 27, 1985, 1/ in Plantation, Florida.

APPEARANCES

For Petitioner: Arthur R. Shell, Jr., Esquire

Department of Professional Regulation Division of Real Estate-Legal

400 West Robinson Street Orlando, Florida 32802

For Respondent: Karen Coleman Amlong, Esquire Hall & Amlong

524 South Andrews Avenue

Fort Lauderdale, Florida 33301 ISSUE

The issue presented for decision herein is whether or not the Respondents, based on conduct set forth hereinafter in detail, are guilty of conduct violative of Sections 475.25(1)(b), (d) and (f), Florida Statutes.

INTRODUCTION AND BACKGROUND

Respondents were charged by an administrative complaint filed December 13, 1983, as amended by an amended administrative complaint filed January 25, 1984, with three violations of Chapter 475, Florida Statutes (Case Number 84-0138).

In Count I of the amended complaint, Respondents are alleged to be guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction all in violation of Section A75.25(1)(b), Florida Statutes. Specifically, it is alleged that Respondent, Gary Dean Upton (hereinafter referred to as "Upton"), forged the signature of a property owner on an exclusive rental listing agreement for the purpose of collecting a share of a commission that Respondents were not entitled to receive. Additionally, it

is alleged that Upton falsely swore that he had obtained the exclusive rental listing agreement during proceedings before the Ft. Lauderdale Area Board of Realtors. In Count II, Respondents are charged again with violation of Section 475.25(1)(b), Florida Statutes. Specifically, Petitioner alleges that Upton failed to pay or otherwise satisfy a judgment for compensatory and punitive damages, as well as attorney's fees and costs that were rendered against him in a civil action for eviction from and damages that Upton willfully, maliciously and intentionally caused to rental premises that he occupied as a real estate office. In Count III, these same acts are alleged to constitute "failure to account for or deliver property" in the possession of Upton and the resulting violation of Section 475.25(1)(d), Florida Statutes.

On April 2, 1985, Petitioners filed against Upton another administrative complaint charging a violation of Section 475.25(1)(f), Florida Statutes (Case Number 85-1689). The basis of this complaint was the entry, by Upton, of a plea of nolo contendere in a criminal prosecution on the felony charge of possession of an unlawfully issued driver's license. The plea resulted in a withheld adjudication and a sentence of 18 months probation and the payment of fines and court costs. Petitioner alleges that based thereon, Upton is guilty, regardless of adjudication, of a crime that involves moral turpitude and fraudulent or dishonest dealing.

Respondents, by their election of rights forms dated December 28, 1983 and April 26, 1985, have disputed the material factual allegations of all charges against them. Additionally, by their motions dated May 21 and 22, 1985, Respondents have moved to dismiss the charges against them on various grounds. Upton also moved to sever trial of Case Number 85-1689 from the trial of Case Number 84-0138. Hearing upon all motions was reserved for final hearing.

At final hearing, both parties made additional ore tenus motions, including motions by Respondents to dismiss the pending cases on additional grounds.

After argument, Respondents' motions to dismiss Counts II and III of Case Number 84-0138 were granted. 2/ Respondents' motion to sever trial of Case Number 85- 1689 from Case Number 84-0138, was denied.

James R. Peters, Anne Golem, Martha Anderson, Brian Flynn, J. Alan Burns, Carl Thellmann, William McClaren and Dorothy Mays were called to testify on behalf of Petitioner. The record was left open and supplemented by the deposition testimony of Rex Anderson. Petitioner offered 5 exhibits.

Petitioner's Exhibits 1, 2, 4 and 5 were received, some over objection, by Respondents' counsel. Ruling was reserved on Respondents' objections as to the relevancy and materiality of Petitioner's Exhibit 3, the record of proceedings before the Ft. Lauderdale Area Board of Realtors at issue in Count I of Case Number 84-0138. After due consideration, it is now determined that those proceedings were both relevant and material to the allegations of the complaint filed in Case Number 84-0138 and the objection is overruled.

Lawrence C. Roberts, Kevin Scott, Armando Clemente, Susan Davis, Kendall DeVeaux, Paul Arpuna and Marion Upton were called as witnesses to testify on behalf of Respondents. Respondent offered 8 exhibits into evidence. All of Respondents' exhibits were received except Respondents' Exhibit No. 6.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant:

FINDINGS OF FACT

1. At all times material, Respondent, Gary Dean Upton, was a licensed real estate broker having been issued license number 0090905. Respondent was the broker for the other Respondent herein, Dean Upton Realty, Inc., which has its offices situated at 7045 W. Broward Blvd., Ft. Lauderdale, Florida.

   
   

2. At times material herein, Respondent, Dean Upton Realty, Inc., was a corporation licensed as a real estate broker having been issued license number 0213092.

   
   

3. On March 11, 1983, a hearing was held before an arbitration panel of the Ft. Lauderdale Area Board of Realtors in response to a complaint filed by Respondent herein, Upton, claiming a commission from another realtor based upon an exclusive rental agreement for property owned by Rex and Martha Anderson. (Tr pages 23, 28)

   
   

4. Subsequently, the Ft. Lauderdale Area Board of Realtors filed a complaint with the Department of Professional Regulation alleging possible perjury in connection with Upton's testimony at the hearing or forgery in connection with the exclusive listing agreement with the Andersons.

   
   

5. Unrefuted testimony shows that during a meeting at Anderson's home in October, 1982, Rex Anderson initialed a listing brochure for the Anderson property. (Tr page 111-112; Respondents' Exhibit 3; Anderson deposition at page 9; referring to the March 22, 1983 letter at Petitioner's Exhibit 3, page 60, paragraph 3)

   
   

6. Anderson claimed he did not intend to give Upton an exclusive listing. However, because of the strain he was under at the time the agreement was purportly executed, he could not swear that he did not initial the document.

   
   

7. Anderson's testimony about being under a "severe strain" and unable to remember what occurred in connection with the exclusive listing agreement is not inconsistent with that of the only other eye witness who has testified regarding the transaction, Kevin Scott, a former associate of Upton who is presently involved in hotel management at the Royal Orleans Hotel in New Orleans, Louisiana. (Tr page 108) The day Upton visited the Anderson residence to obtain the listing, Rex Anderson, who had been laid off from his job as an airline pilot, appeared "very upset," and appeared to be drinking. (Tr page 110) Thereafter, Upton and Scott left the Anderson residence for a brief period.

   When they returned, Anderson was a "very flustered, very nervous and an agitated individual." (Tr page 114)

   
   

8. The credible testimony of persons familiar with Upton's reputation for honesty in the community evidenced that he was not reputed to be a person who would forge someone's name on a listing agreement. (Testimony of Clemente, Apuna and Marion Upton at Tr pages 126, 143 and 145, respectively) Based on Respondent's testimony that Anderson initialed the exclusive listing agreement, Kevin Scott's testimony which was corroborative of Respondent Upton's testimony and Anderson's inability to state, without evasiveness, what occurred in connection with the exclusive listing agreement respecting the subject property, there is no competent and substantial evidence herein to establish that Respondent Upton either forged Rex Anderson's initials to the exclusive listing agreement or that he gave perjured testimony before the Fort Lauderdale Area Board of Realtors.

9. On October 17, 1984, Respondent Upton pleaded nolo contendere to the felony offense of possession of an unlawfully issued driver's license. (Petitioner's Exhibit 5) The plea resulted in a withheld adjudication and a sentence of 18 months probation plus the payment of fines and court costs.

   
   

10. In making the nolo contendere plea, Respondent Upton considered that such was in his best-interests; however, he felt that he was not guilty and has been a model probationer since October, 1984. (Testimony of Susan Jean Davis, Respondent Upton's correctional officer)

    
    

11. Respondent has completed a 30-day residential treatment program for alcoholism at the Beachcomber in Delray Beach, Florida. Since that time, he has also participated successfully in the Broward County Commission of Alcoholism, Inc. DWI program. (Respondents' Exhibits 4, 5 and 8) Those persons who have had the opportunity to observe Respondent since his bout with alcoholism consider him a reformed alcoholic. (Testimony of former judge, Lawrence C. Roberts; Marion Upton and former Broward sheriff and judge, George Brescher)

    
    

12. Kendall D. DeVeaux, Broward County's chief evaluator for the substance abuse program had the opportunity to evaluate and supervise Respondent Upton since his DWI and drug abuse offenses. DeVeaux's testimony corroborates that of Roberts and Marion Upton respecting Upton's reformation.

    
    

13. Based on the foregoing factual findings and conclusions, and the mitigating factors introduced herein, I hereby make the following:

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

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

    
    

16. The authority of the Petitioner, Division of Real Estate, is derived from Chapter 475, Florida Statutes.

    
    

17. Respondents, as licensees, are subject to the disciplinary guides of Chapter 475, Florida Statutes.

    
    

18. Insufficient evidence was offered herein to establish that the Respondent either forged Rex Anderson's initials on an exclusive listing agreement or gave perjured testimony before the Ft. Lauderdale Area Board of Realtors in violation of Section 475.25(1)(b), Florida Statutes.

    
    

19. Competent and substantial evidence was offered herein to establish that the Respondent, entered a plea of nolo contendere to the felony charge of possession of an unlawfully issued driver's license.

20. Section 475.25(1)(f), 3/ Florida Statutes, provides in pertinent part that:

"....has been convicted or found guilty, regardless of adjudication, of a crime which...involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph."

Accordingly, it is concluded that Respondent violated Sections 475.25(1)(f), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent Gary Dean Upton's real estate broker's license number 0090905 be suspended for a period of six (6) months.

In all other respects, it is RECOMMENDED that the complaints in Case Numbers 84-0138 be DISMISSED.

RECOMMENDED this 8th day of October, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL

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 8th day of October, 1985.

ENDNOTES

1/ The parties waived the time requirement that a Recommended Order be entered herein within thirty days following the close of the hearing. Additionally, the parties requested leave to submit proposed memoranda supportive of their respective positions. Respondent's counsel has submitted a proposed recommended order which has been considered by me in preparation of this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

2/ By that ruling, those allegations are no longer at issue in this proceeding.

3/ At the hearing, Respondents moved to dismiss this allegation on the ground that that section, as amended, is unconstitutional because it denies due process as guaranteed by both the Unite States and Florida Constitutions. The undersigned Hearing Officer is without authority to dismiss an allegation on alleged constitutional infringements.

COPIES FURNISHED:

Arthur Shell, Jr., Esquire Division of Real Estate

400 W. Robinson Street Orlando, Florida 32802

Karen Coleman Amlong, Esquire Hall & Amlong

524 S. Andrews Avenue

Ft. Lauderdale, Florida 33301

Salvatore Carpino, General Counsel Department of Professional

Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Fred Roche Secretary

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Harold Huff Executive Director

Division of Real Estate

400 W. Robinson Street Orlando, Florida 32802

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION

Petitioner,

vs. CASE NO. 0039004

0039300

G. DEAN UPTON and DOAH NO. 84-0138 DEAN UPTON REALTY INC. 85-1689

Respondents.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on December 3, 1985 to issue a Final Order.

Hearing Officer James E. Bradwell of the Division of Administrative Hearings presided over a formal hearing on June 27, 1985. On October 8, 1985, he 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, the Florida Real Estate Commission rejects the Recommendation of said Recommended Order and, instead, ORDERS that the real estate license and registration of the Respondents be suspended for a period of six months, said suspension to be suspended.

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 3rd day of December, 1985 in Orlando, Florida.

Harold R. Huff, Director Florida Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Karen Coleman Amlong, Esquire, Hall and Amlong, 524 S. Andrews Avenue, Ft.

Lauderdale, Florida 33301; to Hearing Officer James Bradwell, Division of Administrative Hearing, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to Arthur Shell Jr., Attorney for Petitioner, Dept. of Professional Regulation, P O Box 1900, Orlando, Florida 32802, this 11th day of December, 1985.

Harold R. Huff

Docket for Case No: 84-000138

Orders for Case No: 84-000138