STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 85-0249

)

RAYMOND M. EWING, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on August 16, 1985. The record was left open for 45 days to allow petitioner an opportunity to depose the witness Harrison a second time, but petitioner did not take a second deposition. Petitioner filed his proposed recommended order on October 16, 1985, and respondent filed a proposed order of disposition on October 23, 1985. The parties' proposed findings of fact are treated in the attached appendix. At hearing the parties were represented by counsel:

APPEARANCES

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

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Barry Z. Rhodes, Esquire

8198 Squire Road

Pensacola, Florida 32514

By administrative complaint dated June 29, 1984, petitioner alleges that respondent Ewing, "a licensed real estate broker," witnessed a signature on a warranty deed, dated on or about November 1, 1980, which signature purported to be that of Arthur

1. Harrison, but was in fact forged by Charles J. Hess, Jr. The administrative complaint alleges that respondent Ewing "witnessed this act of forgery and was a party thereto", and that he "is guilty of fraud, concealment, false pretenses, dishonest dealing by trick, scheme or device, or culpable negligence, in violation

   of 475.25(1)(b), Florida Statutes." The administrative complaint also names Hess as a respondent, but only Ewing, as far as the file reflects, disputed the material allegations of the complaint and sought a formal hearing under Section 120.57(1), Florida Statutes.

   
   

   FINDINGS OF FACT

   
   

   1. At one time respondent Raymond M. Ewing, Margaret A. Helms, and Charles J. Hess, Jr., all worked together as real estate salespersons for Jean Bryant Realty in Pensacola. At least since May of 1977, Mr. Ewing has been licensed as a real estate broker. He holds license number 0025647. Petitioner's Exhibit No. 1.

      
      

   2. Messrs. Hess and Harrison, who lives in Chicago, Illinois, had organized H & H Homes of Pensacola, Inc., and engaged in land development, and in building and selling houses north of Pensacola. Respondent Ewing knew that Hess and Harrison were in business together, although he did not know the particulars of their arrangements. (T. 65) Through Mr. Hess, Mr. Ewing met Arthur J. Harrison, who rented a townhouse he owned at Pensacola Beach for two weeks in 1978 or 1979.

      
      

   3. Mr. Hess had moved to Ocala, Florida when Mr. Ewing got a telephone call from him. Hess said he was back in Pensacola for a visit, and told Ewing that he needed money and would like to sell or mortgage "a house that he and Art [Harrison] owned on Ninth Avenue." (T. 67) Respondent Ewing inquired of Bob Barr, a loan officer at Pensacola Loan and Savings, about "putting a second on this house on behalf of Mr. Hess to generate some capital for him." (T. 68) Mr. Barr said he would need a "title letter." After Ewing reported to Hess that a title letter would be necessary, Hess asked him to obtain one, and Ewing requested Wesley Mayhall's opinion as to the title. Eventually Mr. Mayhall informed Mr. Ewing that title to the property was in Arthur J. Harrison.

      
      

   4. The property at 3937 North Ninth Avenue in Pensacola (the property) did indeed belong to Arthur J. Harrison, grantee on a warranty deed executed by George J. Wylie on March 18, 1977, and duly recorded in the public records of Escambia County on April 14, 1977. Exhibit to Deposition of Arthur J. Harrison.

      
      

   5. Undaunted, respondent Ewing arranged for a longtime friend, Robert William Harris, to look at the house, offering to sell it to Harris for $10,000.00 cash and assumption of an outstanding mortgage. The day Ewing showed Harris the house, Hess was also present, and Ewing told Hess the title was in

      Harrison. In reply, Hess said to Ewing, "'I have a deed from Arthur Harrison conveying it to H & H Homes.'" (T. 69)

      
      

   6. Mr. Harris agreed to buy the house for $8,000.00 down, assuming the outstanding mortgage. Two or three weeks later Hess appeared at Ewing's office and, according to Ewing, Hess said, "'Here is the deed to Harris,' or 'I have the deed for Harris, or some play of words around that. ['[Witness it.[']" (T. 70) Respondent Ewing obliged, signing a deed dated November 1, 1980, drawn in favor of H & H Homes of Pensacola, Inc., and purportedly executed by Arthur J. Harrison, whose signatur,e Ewing purported to witness. Ewing testified that he was in the middle of a telephone conversation and was holding the receiver in one hand when he signed with the other.

      
      

   7. Harrison did not in fact sign the deed or authorize its execution. At the time of the hearing, Mr. Ewing still "d[id]n't believe that" (T. 87) Hess had admitted to him forging Harrison's signature.

      
      

   8. Charles H. Hess, Jr., as president of H & H-Homes of Pensacola, Inc., executed a warranty deed to the property in favor of R. W. Harris on November 10, 1980. Mr. Ewing delivered the deed to Mr. Harris that day in Mr. Harris' office in exchange for two cashier's checks, one in the amount of $6,000.00 and one in the amount of $2,000.00. Hess got the proceeds of the larger cheek. Mr. Ewing told Mr. Harris he would deposit the smaller cheek in escrow, for disbursal to Hess, once the house was painted. In fact, Mr. Ewing pocketed the $2,000.00. (T. 82, 83) At hearing, he offered this explanation:

      
      

      [Hess] owed me something like $2,000.00. And it was one of those deals he was up here one day, he needed some money. I had some and I just said, okay, I can let you have some fora few days and you'll have to give it back to me, but this preceded the incident by, you know, some length of time. (T. 34)

      
      

      Mr. Ewing did not ask Hess for a promissory note when he made the loan supposedly repaid with Harris' check. (T. 80) After the LH house had gone unpainted for some time, Ewing paid Harris

      $500.00, telling Harris that he had already paid Hess the other

      $1500.00. Respondent Ewing "did not prepare a sales agreement .

      . . [in connection with the conveyance to Harris because he] wasn't thinking anything was going to come back to haunt [him]." (T. 84)

      
      

   9. At some point in "early November" of 1980, Mr. Harrison spoke to Mr. Ewing by telephone. Harrison had learned earlier,

      from the holder of the mortgage on the property, that Ewing had inquired about a purchaser's assuming the mortgage. When Harrison told Ewing he was not interested in selling the property, Ewing told Harrison that Hess had already accepted earnest money (although this was not accurate.)

      
      

   10. On Mr. Harrison's behalf, Margaret A. Helms rented the property in February or March of 1981. Mr. Harris noticed the tenant moving in and stopped to talk to the lady, who told him that she was renting from Ms. Helms. Mr. Harris did not confide in the tenant, but went to see his lawyer. On May 18, 1980, Mr. Ewing secured an owner's title insurance policy covering the property for Mr. Harris.

       
       

   11. Eventually Mr. Harris filed suit to quiet title and won. On appeal, however, Mr. Harrison prevailed and the judgment was reversed. Litigation is ongoing. To date, Mr. Harrison has expended some $6,000.00 in attorney's fees and costs.

       
       

       CONCLUSIONS OF LAW

       
       

   12. Petitioner is authorized to take disciplinary action against licensees, when violations of Section 475.25, Florida Statutes (1983) are properly pleaded and proven. Specifically, petitioner

       
       

       may suspend a license or permit for a period not exceeding 10 years; may revoke a license or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, or any or all of the foregoing, if it finds r that the licensee, permittee, or applicant:

       
       

       (b) Has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state or any other state, nation, or territory, has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and

       committed an overt act in furtherance of such intent, design, or scheme. It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public. Section 475.25, Florida Statutes (1983).

       
       

       The allegations in the administrative complaint are that Ewing witnessed a forged deed, and that he "was a party" to the forgery. Due process requires that consideration of other violations suggested by the evidence be foregone. See Wray v. Department of Professional Regulation, Board of Medical Examiners, 435 So. 2d 312 (Fla. 1st DCA 1983).

       
       

   13. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So. 2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at a hearing. Florida Real Estate Commission v. Webb, 367 So. 2d 201 (Fla. 1979). License revocation proceedings have been said to be "'penal' in nature." State ex ref. Vining v. Florida Real Estate Commission,

       281 So. 2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real

       Estate Commission, 289 So. 2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1979) (rein. den. 1 9°0).

       
       

   14. The evidence showed clearly and convincingly that, at the very least, Raymond M. Ewing was guilty of culpable negligence in signing his name as a witness to a signature that had been forged. Petitioner showed that he had spoken to the man whose signature he witnessed, who had told him he did not want to sell the property; and that this conversation antedated the conveyance to Harris. Whether the conversation occurred before Ewing signed was not clear from the evidence, which fell short of a clear and convincing showing that respondent Ewing was guilty of forgery.

RECOMMENDATION

It is, upon consideration of the foregoing, RECOMMENDED:

That petitioner reprimand respondent, impose an administrative fine of one thousand dollars ($1,000.00), and suspend his license for one year.

DONE and ENTERED this 8th day of January, 1986, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1986.

COPIES FURNISHED:

Arthur R. Shell, Jr., Esquire Post Office Box 1900

Orlando, Florida 32802

Barry Z. Rhodes, Esquire 8198 Squire Road

Pensacola, Florida 32514

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

130 North Monroe Street Tallahassee, Florida 32301

Harold Huff, Executive Director Division of Real Estate

400 W. Robinson Street Orlando, Florida 32802

APPENDIX

Petitioner's proposed findings of fact I through 4, 6, 7, and 10 have been adopted,, in substance, as being clearly and convincingly established by the evidence.

Petitioner's proposed finding of fact 5 was not clearly and convincingly established, although the evidence suggested that the transaction had not closed when Harrison told Ewing the property was not for sale.

The evidence as to Ewing's financial interest in the transaction is dealt with in paragraph 7 of the recommended order.

Respondent's proposed order of disposition contains no proposed findings of fact so labelled. In general, Mr. Ewing's testimony has not been credited. The evidence did not show that he "did not know the instrument was allegedly forged" and did not prove that he "did not witness an act of forgery."

Docket for Case No: 85-000249

Orders for Case No: 85-000249