STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1197

) FRED THOMAS and FRED THOMAS ) REALTY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on June 24, 1986, in Miami, Florida, by R. L. Caleen, Jr., hearing officer with the Division of Administrative Hearings. The parties were represented by counsel.

APPEARANCES

For Petitioner: James R. Mitchell, Esquire

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

For Respondent: Vincent P. McGhee, Esquire

799 Brickell Plaza, Suite 700

Miami, Florida 33131 ISSUE

Whether Respondents' real estate licenses should be disciplined on the grounds alleged in the administrative complaint filed by the Department of Professional Regulation, Florida Real Estate Commission.

BACKGROUND

By a six-count administrative complaint dated February 25, 1986, Petitioner, Department of Professional Regulation, Florida Real Estate Commission ("Commission"), charged Respondents, Fred Thomas and Fred Thomas Realty, Inc., with numerous violations of Section 475.25, Florida Statutes (1985), part of the Florida Real Estate Law. The charges include making fake promises, engaging in culpable negligence, breaching a trust in a business transaction, failing to account for and deliver a deposit, failing to place a deposit in an escrow account, and failing to maintain a deposit in an escrow account until disbursement was authorized. Based on these charges, the Commission sought to discipline the real estate licenses of both Respondents.

The Respondents timely disputed the charges and requested a Section 120.57(1) administrative hearing. On April 9, 1986, the Commission forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for June 24, 1986.

At hearing, no one other than counsel for the parties appeared. Both counsel announced a verbal stipulation whereby Respondents admitted all facts alleged in the six-count administrative complaint which, with attached documents, was received in evidence.

The transcript of hearing was filed on July 28, 1986. Although the parties asked for and were granted time to file post-hearing proposed findings of fact, they chose not to do so.

Based on the evidence and stipulation presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. The allegations of fact contained in the Commission's administrative complaint were admitted to be true and are thus no longer in dispute. Those allegations, now accepted as true, are set forth below:

   
   

   1. [The Commission] is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapter 120,

      455 and 475, Florida Statutes, and the rules promulgated pursuant thereto.

   2. Respondent Fred Thomas is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0315259 in accordance with Chapter 475, Florida

      Statutes. The last license issued was as a broker, in care of Fred Thomas Realty, Inc., 8031 N.W. 22nd Avenue, Miami, Florida 33147.

   3. Respondent Fred Thomas Realty, Inc., is now and was at all times material hereto a corporation licensed as a real estate

      broker in the State of Florida having been issued license number 0226494 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of

      8031 N.W. 22nd Avenue, Miami, Florida 33147.

   4. At all times material hereto, Respondent Fred Thomas was an officer of and

      qualifying broker for Respondent Fred Thomas, Realty, Inc.

      * * *

   5. Respondents on or about October 26, 1985, solicited and obtained a sales contract entered into by Eunice L. Young, as purchaser, and John and Odessa Simmons, as sellers, for the purchase and sale of

      certain real property being a duplex that was listed for sale by the Respondents

      . . .

   6. In connection therewith, Respondents received in trust a $500.00 earnest money deposit via check dated October 26, 1985, which Respondents deposited into their escrow account . . .

   7. Thereafter on or about November 15, 1985, the respondents received in trust an additional deposit of $5,000.00 via check dated November 8, 1985, which check the Respondents did not deposit into their escrow account. The Respondents did return the $5,000.00 check uncashed to Eunice L. Young within approximately one week of receipt of the $5,000.00 check . . .

   8. On or about November 4, 1985, the Respondents had solicited and obtained a sales contract entered into by Jessie J. Leno, as purchaser, and John and Odessa Simmons, as sellers, for the purchase and sale of the same duplex . . .

   9. Upon the return of the $5,000.00 check

      . . . Eunice L. Young made numerous and repeated demands upon the Respondents for the return of the initial $500.00

      deposit . . . .

   10. The Respondents promised to promptly return the $500.00 deposit but the Respondents failed, refused and neglected to return the $500.00 deposit until Respondents delivered to Eunice L. Young a check dated December 13, 1985, payable in the amount of

       $500.00 drawn on Respondents' general operating account upon Eunice L. Young having filed a Uniform Complaint Form with the [Commission] . . .

   11. That from October 25, 1985, to December 6, 1985, the initial $500.00 deposit was placed and maintained in Respondent's escrow account . . .

       
       

2. The sole issue between the parties is the appropriate disciplinary action to be imposed against Respondents' real estate licenses. Although Mr. McGhee, counsel for Respondents, represented that during the time pertinent to the charges, Respondent Fred Thomas was suffering from chemical dependency (TR. 11), he also indicated that he did not "want to testify for" Mr. Thomas (TR.16). Mr. McGhee then asked for and was granted (without objection) 30 days to submit an affidavit and any memorandum relating to Fred Thomas' alleged chemical dependency. But no affidavit or memorandum was subsequently submitted.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1985).

4. The admitted allegations of fact are a sufficient basis on which to conclude that Respondents violated Section 475.25(1)(b), (d) and (k), Florida Statute's (1985), by making false promises; by committing negligence and breach of trust in a business transaction; by failing to account for and deliver a deposit; by failing to place the additional deposit in an escrow account; and by failing to maintain the initial deposit in an escrow account until disbursement was authorized. No mitigating evidence was presented.

   
   

5. These violations of the Real Estate Law are serious enough to warrant revocation of Respondents' licenses to engage in the sale of real estate. In the absence of any mitigating or extenuating evidence, it is concluded that revocation is appropriate.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Respondents' real estate licenses be revoked based on multiple violations of Section 475.25(1), Florida Statutes (1985).

DONE and ORDERED this 26th day of September, 1986, in Tallahassee, Florida.

R. L. CALEEN, JR. 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, 1986.

COPIES FURNISHED:

James R. Mitchell, Esquire

P. O. Box 1900

Orlando, Florida 32802

Vincent P. McGhee, Esquire 799 Brickell Plaza, Suite 700

Miami, Florida 33131

Docket for Case No: 86-001197

Orders for Case No: 86-001197