STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARRELL J. LEAMY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1123

) DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ) ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on April 29, 1987, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Randy Schwartz, Esquire

Assistant Attorney General Department of Legal Affairs

Suite 212, 400 West Robinson Street

Orlando, Florida 32801

For Respondent: Darrell J. Leamy

834 Okaloosa Street

Orlando, Florida 32822 BACKGROUND AND PROCEDURAL MATTERS

By his application dated November 26, 1986, Darrell J. Leamy sought licensure as a real estate salesperson. In a meeting on February 17, 1987, after considering the application and Mr. Leamy's personal presentation, the Florida Real Estate Commission (FREC) voted to deny his application.

Mr. Leamy was formally informed of the decision by letter dated March 11, 1987, which provided, in pertinent part:

The reason for the Commission's action is based upon your answer to Question #14 of the licensing application--specifically, on the revocation of your real estate broker's license on May 22, 1980, and the facts leading up to that revocation.

Mr. Leamy made a timely request for a formal hearing.

At the hearing, Mr. Leamy testified in his own behalf and presented one document, a copy of his application. The Commission presented no witnesses and submitted three exhibits. All exhibits were admitted without objection. In addition, the parties stipulated that responses to interrogatories and to requests for admissions be considered part of the record for consideration.

After hearing, Respondent submitted a brief memorandum of law. No proposed recommended orders were filed.

ISSUE

The issue for consideration is whether Darrell J. Leamy is entitled to licensure in the State of Florida as a real estate salesman.

FINDINGS OF FACT

1. Darrell Leamy was previously licensed in Florida as a real estate salesman and broker. He was also licensed in the State of Wisconsin.

   
   

2. On May 22, 1980, in a Department of Professional Regulation Administrative Complaint, Mr. Leamy was charged with four counts of various violations of Chapter 475 F.S. Mr. Leamy requested a hearing but did not appear at the hearing. On July 8, 1981, Hearing Officer William Thomas recommended revocation of Leamy's real estate license. (DOAH Case #80-1776). The Board of Real Estate adopted that recommendation in a Final Order filed on September 9, 1981.

   
   

   The order was not appealed.

   
   

   On February 24, 1983, the State of Wisconsin, Department of Regulation and Licensing revoked Leamy's Wisconsin real estate license after his ex-wife informed the agency that his Florida license was revoked.

   
   

3. Darrell Leamy's account of the incidents leading to the 1981 revocation includes the admission of several material elements of the administrative complaint. He and his wife made an offer and purchased a house that, at the same time, he had shown in his professional capacity to prospective buyers. He presented an offer on behalf of those prospective buyers, while revealing to them only that other persons were very interested in the property "and that they should make their best offer".

   
   

   Later, with respect to that same transaction, he received a check in the approximate amount of $1,500.00, representing a share of the sales commission and payable to his broker-employer, United Farm Agency. His wife deposited the check in the couple's personal bank account. Although he found out about his wife's deposit within a day, he did nothing to correct the error.

   
   

4. Mr. Leamy contends that the circumstances surrounding the incidents should exonerate him, that he did give the prospective buyers a fair opportunity to make a higher offer. Further, his wife (now his ex-wife) was jealous of his employer's daughter, who was making romantic overtures at the office, so she didn't want him to go back to that office to take the check.

   
   

   His failure to attend the prior administrative hearing was due to dire predictions of the outcome by his lawyer, the death of one of his witnesses, and the discovery that another witness had a drinking problem and could not remember him.

   Mr. Leamy's case for licensure concentrated on the peculiar circumstances of the prior charges and his assertion that those complaints were the only ones he experienced in his active real estate practice in Florida and Wisconsin.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding pursuant to section 120.57(1) F.S.

   
   

6. As an applicant for licensure, the Petitioner carries the burden of proving that he meets all the statutory or regulatory criteria and standards for the license.

   
   

7. The 1981 license revocation order is final and binding on the parties. It cannot be set aside in a subsequent procedure such as this.

   
   

8. Subsection 475.17(1)(a) F.S. provides, in pertinent part:

   
   

   475.17 Qualifications for practice.-- (1)(a)

   * * *

   If the applicant has been denied registration or a license or has been disbarred, or his registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, any nation, or any possession or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter, of if the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license under this chapter and the applicant then been registered, the applicant shall be deemed not to be qualified unless, because of lapse of time and subsequent good conduct and reputation or other reason deemed sufficient, it appears to the commission that the best interest of the public and investor will not likely be endangered by granting registration.

   (emphases added)

   
   

9. Six years have lapsed since Mr. Leamy's prior license received the most severe penalty available. No evidence was presented in this proceeding regarding subsequent good conduct and reputation.

   
   

10. In his explanation of the circumstances relating to the prior discipline, the applicant admitted acts constituting, at best, extraordinarily bad judgment and insouciant disregard of certain basic standards of real estate practice.

11. No doubt he repents those acts and would earnestly desire to resume the practice of his prior profession.

    
    

12. For now, however, he has failed to present evidence that the past blemish is eradicated and "... that the interest of the public and investors will not be endangered by the granting of registration."

RECOMMENDATION

Based on the foregoing, it is, RECOMMENDED:

That a final order be entered denying Petitioner's application for licensure as a real estate salesperson.

DONE and RECOMMENDED this 17th day of June, 1987 in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1987.

COPIES FURNISHED:

Darrell J. Leamy 834 Okaloosa Street

Orlando, Florida 32822

Harold Huff, Executive Director Florida Real Estate Commission

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

Van Poole, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Randy Schwartz, Esquire Assistant Attorney General Department of Legal Affairs

Suite 212, 400 West Robinson Street

Orlando, Florida 32801

Docket for Case No: 87-001123

Orders for Case No: 87-001123