STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-2971

)

JAMES D. FULFORD, )

)

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 this case on October 23, 1987 in Miami, Florida. The parties were afforded leave through November 12, 1987 to submit memoranda supportive of their respective positions. The parties submitted proposed recommended orders which were considered by me in preparation of this Recommended Order. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an Appendix to this Recommended Order.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Contract Attorney

DPR-Division of Real Estate

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

For Respondent: Mark Weissman, Esquire,

Katz and Weissman

300 Aragon Avenue, Suite 330 Coral Gables, Florida 33134

ISSUE PRESENTED

The issue presented for decision herein is whether or not Respondent's real estate license should be disciplined based on conduct, set forth hereinafter in detail, which is specifically alleged in an Administrative Complaint filed herein dated June 24, 1987.

BACKGROUND

By Administrative Complaint filed on June 24, 1987, Petitioner, Department of Professional Regulation, Division of Real Estate, alleges Respondent violated subsection 475.25(1)(b), Florida Statutes, in that John S. Blonsick, the owner

of certain warehouses, allowed Respondent to prepare a lease to rent three of his four units to a boat and car repair business owned by J. M. Gardner.

It is alleged that Respondent engaged in a breach of trust with Mr.

Blonsick by taking over Mr. Gardner's business; by giving Mr. Blonsick a check which was returned for insufficient funds; by withholding rent and by failing to pay for the partial destruction of the floor in the warehouses.

Respondent disputed the charges and requested a hearing pursuant to section 120.57(1), Florida Statutes. A formal hearing was set for Friday, October 23, 1987 and held on that date in Miami, Florida.

At the hearing, Petitioner offered the testimony of John S. Blonsick and Petitioner's Exhibits 1-9 were received into evidence.

Respondent testified on his own behalf and presented the testimony of Heather Rockcastle.

FINDINGS OF FACT

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

1. At all times pertinent to the charges herein, Respondent was the holder of a Florida Real Estate license and operated as a real estate broker. (Petitioner's Composite Exhibit 1 and Stipulation of the parties).

   
   

2. On October 17, 1985, Respondent obtained four exclusive listing agreements from John S. Blosnick (Blosnick) for warehouses he owned located in Miami, Florida. (Petitioner's Composite Exhibit 2).

   
   

3. Respondent was unable to find a buyer for the units and instead leased them to Jim Gardner and V.I.P Car Care pursuant to a business lease entered into on July 22, 1986. During the time, Blosnick was experiencing financial difficulties and needed someone to either purchase or lease the premises. The lease specified that Mr. Gardner would use the premises for the manufacture and repair of cars and boats. (Petitioner's Exhibit 3).

   
   

4. During the fall of 1986, a company that Respondent was affiliated with and served as President, Reaction Marine, Inc., took over the rental units and began constructing boat hulls from fiberglass resin. At this time, Reaction Marine erected a sign outside the warehouses where it remained during the time of the instant hearing. (Petitioner's Exhibit 4).

   
   

5. On January 6, 1987, Respondent's bookkeeper, a Mrs. Bryant, issued a check for payment of rent drawn on the account of Reaction Marine, Inc. to John Blosnick for $945.00. The check was subsequently returned for insufficient funds. That check remains unpaid as of the date of hearing.

   
   

6. After Reaction Marine began occupancy of the Blosnick warehouses, Respondent and Jim Gardner had a dispute and Gardner is no longer affiliated with Reaction Marine. Respondent who owned the molds for boat manufacturing, continued to store the molds in the leased warehouses.

7. During the time when Respondent obtained the exclusive listing agreement to sell the warehouses for Blosnick, they were good friends and Blosnick frequented Respondent's office and home two to three times per week.

   
   

8. Respondent is an entrepreneur of sorts and owns three bars and various and sundry other businesses in the Miami area. Respondent and Blosnick often talked about different business ventures as Blosnick was interested in pursuing business ventures with Respondent.

   
   

9. As early as the fall of 1986, Blosnick was aware that Respondent was affiliated with Reaction Marine, Inc., and that Reaction Marine thereafter occupied the subject warehouse.

   
   

10. Respondent has offered to make good on the check which was returned for insufficient funds against the account of Reaction Marine, Inc., however that offer is contingent upon Blosnick's tender of the check to Respondent upon payment. Blosnick has requested that payment be made to a third party and has not offered to tender the check to that third party simultaneous with Respondent's tender of payment to make good on the returned check.

    
    

11. Respondent has attempted to clean the floors of the warehouses by removing the resins, epoxys, and gel coats caused by Reaction Marine, Inc. This was done during January and February, 1987 by Respondent using the assistance of an acquaintance, Heather Rockcastle, who was involved with the cleaning of the warehouse and restoration of the floors to their original condition. The cleanup process took more than one day. In Respondent's second attempt to gain entry to the warehouses, Blosnick had hired a locksmith to change the locks and thereby prevented Respondent from gaining entry.

    
    

12. The lease agreement entered into by Blosnick and VIP Car Care specifies that the property was to be used and occupied as a place for car and boat manufacture/repair. (Petitioner's Composite Exhibit 3). Pursuant to the terms of that business lease, VIP Car Care was authorized to assign or sublet the premises for the usage here which was consistent with the usage for which VIP Car Care leased the premises. (Petitioner's Composite Exhibit 3, first stipulation and condition of the business lease).

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes (Supp. 1986).

    
    

14. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

15. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

    
    

16. Respondent, a licensed real estate broker, is subject to the disciplinary guide of Chapter 475, Florida Statutes.

    
    

17. Insufficient evidence was offered herein to establish that the Respondent, based on the conduct set forth hereinabove, engaged in conduct amounting to fraud, misrepresentation, false promises, false pretenses, dishonest dealing by trick, scheme, or device or breach of trust in a business transaction. Here the evidence reveals that Respondent was retained by Mr.

Blosnick to sell the warehouses in question. When Respondent's efforts were unsuccessful, he attempted to ease the financial straits which Mr. Blosnick was experiencing by finding a tenant to lease the premises and thereby make the mortgage payment for the property. When the first tenant moved out of the warehouses, Respondent let Mr. Gardner who was then affiliated with Reaction Marine move into the warehouses and commenced construction of boat hulls to keep the warehouses occupied. This was all done with Respondent's knowledge and he only objected once a check was issued which was returned for insufficient funds. Respondent has agreed to make good on this check, however certain procedural steps were demanded by Respondent to insure that once he satisfied the payment for the returned check, that Mr. Blosnick would not again be able to present that check for payment. Respondent demands in that regard appeared reasonable under the circumstances. For all of the foregoing reasons, Respondent's conduct herein was reasonable, open and honest and does not amount to proscribed conduct as alleged in the administrative complaint filed herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

The Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 11th day of May 1988, 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 11th day of May, 1988.

COPIES FURNISHED:

Steven W. Johnson, Esquire Contract Attorney

DPR-Division of Real Estate

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

Mark Weissman, Esquire Katz and Weissman

300 Aragon Avenue Suite 330

Coral Gables, Florida 33134

William O'Neil Esquire General Counsel

Department of Professional Regulation

101 East Gaines Street Tallahassee, Florida 32301

Docket for Case No: 87-002971

Orders for Case No: 87-002971