STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 85-0152

)

ROGER W. DART )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Order Setting Hearing furnished the parties by the undersigned on June 6, 1985, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administration Hearings, in Panama City, Florida, on August 29, 1985.

ISSUE

The issue for consideration in this case was whether Respondent's license as a registered real estate salesman in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.

APPEARANCES

For Petitioner: James R. Mitchell, Esq.

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32802

For Respondent: Glenn L. Hess, Esq.

9108 West Highway 98

Panama City Beach, Florida 32407 BACKGROUND INFORMATION

By Administrative Complaint dated December 14, 1984, Fred Roche, Secretary, Department of Professional Regulation, seeks to discipline Respondent's license as a registered real estate salesman in Florida because of Respondent's alleged violation of Subsection 475.42(1)(a), Florida Statutes, by operating as a real estate salesman without a valid and current license.

On or about January 6, 1985, Respondent submitted an Election of Rights form in which he indicated he disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing. On January 14, 1985, the Secretary forwarded the file to the Director of the Division of Administrative Hearings requesting the appointment of a hearing officer. Thereafter, on February 4, 1985, the undersigned sent out a Notice of Hearing in this case setting the hearing for Panama City on April 9, 1985. Before the hearing could be held, however, on April 9, 1985, at the request of the Petitioner, the undersigned cancelled the scheduled hearing because the parties had agreed upon a settlement stipulation settling the matter which was to be presented to the Board of Real Estate at its May 14,1985 meeting.

At that meeting, the Board rejected the settlement stipulation and thereafter, upon the request of Petitioner, the case was again scheduled for hearing. Upon motion of Petitioner, prior to the hearing, the Hearing Officer deemed the unanswered Request for Admissions forwarded to Respondent as admitted, and took official recognition of Section 475.183, Florida Statues, 1979.

At the hearing, Petitioner offered Petitioner's Exhibit 1, the Respondent's licensing history, into evidence. No witnesses were called for Petitioner. Respondent testified in his own behalf but offered no other evidence.

At the opening of the hearing, before the taking of any testimony, counsel for Respondent indicated that Respondent admitted the allegations contained in paragraph 3 of the Administrative Complaint. Neither party submitted proposed findings of fact.

FINDINGS OF FACT

1. At all times relevant to the allegations in the Administrative Complaint, the Respondent, ROGER W. DART, was licensed as a registered real estate salesman in Florida under license number 0306123. This license, however, became

involuntary inactive on March 31, 1980 and was, at the times involved in this case, delinquent.

2 On February 26, 1984, Respondent placed an advertisement in the Panama City, Florida, News-Herald, under the Condominiums for Sale section of the classified advertisements which read:

GULFRONT CONDO., 2BR 2B, fully fur., $79,900

By owner. 243-5356.

1. On February 26, 1984, Respondent was not the owner of the condominium apartment so advertised. The owner was Kendal Sanborn. Telephone number 243-5356, in Panama City, Florida, is the phone number of Respondent.

   
   

2. Pursuant to the advertisement referenced above, Respondent procured James D. Hill and Lavanda H. Hill, his wife, as purchasers of the property in question, and as a result, after the closing on April 12, 1984, Respondent received a fee of $2,000.00 for arranging the purchase. This fee was paid by a check drawn on The Commercial Bank in Panama City, on the escrow account of Lawyer's Title Insurance Corporation, dated April 23, 1984, and references the file relating to James D. Hill.

   
   

3. Respondent admittedly holds an inactive real estate salesman's license, but has not been active in the real estate business for several years. He is a licensed boat captain for off-shore fishing boats and in the winter season, when fishing is not active, he also captains cargo boats and off-shore tug boats. He also buys and sells boats on his own.

   
   

4. He knows and is a close friend of Kendal Sanborn, the sale of whose property gave rise to this case. Mr. Sanborn is a real estate developer from Atlanta and Respondent works for him periodically as a fishing boat captain. When Mr. Sanborn comes to the Panama City area, he generally stays with or in quarters belonging to Respondent.

   
   

5. At the time in question, Mr. Sanborn owed Respondent a considerable amount of money for fishing trips, tackle, and rental on the property he rents from Respondent. As a matter of fact, Mr. Sanborn currently is indebted to Respondent for the same type of things.

   
   

6. The transaction in question here was the only one in which Respondent has been involved for anyone other than himself since his license became inactive. He has never submitted any

   other advertisement listing his telephone number for real estate transactions (just for boats) since that time.

   
   

7. Respondent's involvement in the one transaction in issue took place because Mr. Sanborn was indebted to him at the time for a sum substantially larger than the $2,000.00 he received. He acted as he did here both as a favor to Mr. Sanborn, who wanted to sell his property, and, also, to facilitate getting the money which was owed to him.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the hearing.

   
   

9. In its Administrative Complaint, Petitioner alleges that Respondent has violated the provisions of Section 475.42(1)(a), Florida Statutes, and is therefore also in violation of Section 475.25(1)(a), Florida Statutes. The former listed statutory provision reflects:

   
   

   1. VIOLATIONS

(a) No person shall operate as a broker or salesman without being the holder of a valid and current license therefor.

1. The latter listed provision permits the discipline of a licensed holder if it can be shown he:

   
   

   1. Has violated any provision of s. 455.227(1).

      
      

2. Here the evidence clearly establishes that, as alleged in the Administrative Complaint, the Respondent received a fee for procuring a purchaser for a piece of real estate owned by another and at the time, his license was inactive and had expired. That there was no formal listing agreement, or that the motivation for doing so may have been reasonable and honorable is immaterial to the issue of his guilt. Respondent was in violation of the statutory requirement that he have a current license when operating as a salesman and was therefore subject to discipline under Section 475.25(1)(a), Florida Statutes.

3. Respondent's motivation and his lack of other violations may, however, be considered in evaluating the gravity of his offense and assessing an appropriate penalty. Here it is clear that Respondent's infraction was an isolated incident and his mitigating testimony concerning the circumstances is uncontroverted. Respondent is not currently active in the real estate profession and his one infraction does not justify either revocation of his license or a severe fine. While it is important that action be taken sufficient to impress upon him the necessity to conform with the rules as they exist to govern the profession, it is not necessary that he be excoriated in the process.

RECOMMENDATION

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent, Roger W. Dart's license as a real estate salesman in Florida be suspended for a period of six months and that he be ordered to pay an administrative fine of

$250.00.

RECOMMENDED in Tallahassee, Florida, this 26th day of September, 1985.

ARNOLD H. POLLOCK

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 26th day of September, 1985.

COPIES FURNISHED:

James R. Mitchell, Esq. Department of Professional

Regulation

Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

Glenn L. Hess, Esq. 9108 West Highway 98

Panama City, Florida 32407

Harold Huff, Director Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore Carpino. Esq. General Counsel

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32301

Docket for Case No: 85-000152

Orders for Case No: 85-000152