STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-5774

)

DUANE JAMES JANIKULA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on May 22, 1989, in Myers, Florida.

APPEARANCES

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

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32801

For Respondent: Neil F. Garfield, Esquire

Envirwood Executive Plaza, Suite 200 5950 West Oakland Park Boulevard Lauderhill, Florida 33313

STATEMENT OF THE ISSUES

Whether the Respondent's real estate salesman license in Florida should be disciplined based upon the charge that his real estate broker's license in another state was revoked in April 1988.

PRELIMINARY STATEMENT

In a letter dated November 18, 1988, the Respondent, Duane James Janikula (hereinafter Janikula), requested a formal hearing to contest the allegations of fact contained in the Administrative Complaint which seeks to discipline his Florida real estate salesman's license based upon the charge that his Minnesota real estate broker's license was revoked in Minnesota on April 21, 1988, in violation of Section 475.25(1)(g), Florida Statute

Petitioner, Department of Professional Regulation, Division of Real Estate (hereinafter the Department), submitted two exhibits. Once the exhibits were admitted, the Department rested its case-in-chief. The Respondent presented two exhibits, and the Petitioner submitted an additional rebuttal exhibit. All of

the exhibits were admitted in evidence. However, no weight was given to Petitioner's rebuttal exhibit for purposes of this proceeding.

A transcript of the proceeding was received on June 8, 1989. The filing deadline for proposed recommended orders was extended to August 7, 1989, upon Respondent's request in order to allow him the opportunity to acquire out-of- state exhibits. As the five exhibits submitted post-hearing consisted of copies of Minnesota laws requested by the Hearing Officer from both parties in order to correctly interpret Petitioner's rebuttal exhibit, these documents are admitted as Respondent's Exhibits A through E. Proposed findings of fact were not submitted by either party. The Respondent timely submitted the memorandum of law requested by the Hearing Officer.

FINDINGS OF FACT

1. At all times material to these proceedings, the Respondent Janikula was a licensed real estate salesman in Florida, having been issued license number 0488507 through the Division of Real Estate. Evidence presented at hearing revealed that the license was active on or before March 6, 1987.

   
   

2. The Department is the agency charged with the responsibility to prosecute violations of Chapter 475, Florida Statutes, by real estate salesmen licensed in Florida.

   
   

3. The Minnesota Department of Commerce is the state agency charged with the responsibility to prosecute violations of Chapter 82, Minnesota Statutes, by real estate brokers licensed in Minnesota.

   
   

4. On April 21, 1988, a final order of license revocation was entered by the Commissioner of Commerce, Department of Commerce, State of Minnesota, against the real estate broker's license of the Respondent Janikula which had previously been issued by that state. The license was revoked as a result of the following:

   
   

   1. On or about May 13, 1987, Respondent Janikula received $15,000.00 from Mr. Ben Hackman as earnest money in connection with Mr. Hackman's purchase of an apartment building in Minneapolis, Minnesota, which was listed for sale through the Respondent. The Respondent was the real estate broker at the time he received the earnest money, and the funds were trust funds under Minnesota law.

      
      

   2. When the transaction could not be completed, the Respondent delivered a check to Mr. Hackman for $15,000.00 on a closed checking account.

      
      

   3. The disciplinary hearing on this matter was held on March 1, 1988. On the date of hearing in Minnesota, the Respondent had not returned the

      $15,000.00 to Mr. Hackman.

      
      

   4. The Respondent's broker's license was revoked upon the determination that Respondent failed, within a reasonable time, to account for and remit money coming into his possession as a real estate broker to the person entitled to it. In addition, it was determined that, while licensed as a real estate broker, the Respondent converted trust funds belonging to another person that he obtained in connection with a real estate transaction.

      
      

5. In mitigation, the Respondent presented evidence which demonstrated that between April 19, 1988, and July 8, 1988, three checks totalling $15,000.00

   plus $1,350.00 in interest were received by Mr. Hackman for restitution purposes. In addition, it was called to the attention of the Hearing Officer that Respondent does not handle trust funds in his capacity as a real estate salesman in Florida.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

   
   

7. The Respondent is charged with a violation of Section 475.25(1)(g), Florida Statutes, which provides that the Department can take disciplinary action against the license of a Florida real estate salesman who:

Has had a broker's . . . license revoked . . . by a real estate licensing agency of another state. . . .

1. A proceeding to discipline a license is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). In such contests, the Petitioner has the burden of proof and must prove by clear and convincing evidence that the Respondent committed the violations set forth in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

   
   

2. In these proceedings official notice was properly taken of the authenticated copy of the Final Order dated April 21, 1988, from the Commissioner of Commerce in Minnesota who revoked the Respondent's Minnesota real estate broker's license. The revocation was based upon misconduct that occurred during an eleven-month period in which the Respondent was also a licensed real state salesman in Florida. The evidence presented support a finding that Respondent Janikula had his real estate broker's license revoked in Minnesota. Section 90.902, Florida Statutes.

   
   

3. The penalties for the violation are found in Section 475.25(1), Florida Statutes, and Rule 21V-24.001(2)(c), Florida Administrative Code, which specifically provides disciplinary guidelines for a violation of Section 475.25(1)(g), Florida Statutes, as follows:

. . . The minimum penalty for all below listed sections is a reprimand and/or a fine up to $1,000.00 per count. The only exception is for discipline with payment from the recovery fund which, according to Section 475.484(7), Florida Statutes, requires the automatic penalty of revocation. The maximum penalties are as listed:

(m) 475.25(1)(g) -- Up to 6 years of suspension or revocation.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a Final Order be entered finding Respondent Janikula guilty of the charge filed in Case No. 88-5774.

That the Respondent's Florida real estate salesman's license be suspended for a period of one year.

DONE and ENTERED this 29th day of August, 1989, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1989.

COPIES FURNISHED:

Department of Professional Regulation - Division of Real Estate

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

Neil F. Garfield, Esquire Neil F. Garfield, P.A.

Envirwood Executive Plaza, Suite 200 5950 West Oakland Park Boulevard Lauderhill, Florida 33133

Darlene F. Keller, Director Division of Real Estate

Department of Professional Regulation

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

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE,

Petitioner,

vs. CASE NO. 0159940

DOAH CASE NO. 88-5774

DUANE JAMES JANIKULA,

Respondent.

/

FINAL ORDER

On October 17, 1989, the Florida Real Estate Commission heard this case to issue a Final Order. Hearing Officer Veronica Donnelly of the Division of Administrative Hearings presided over a formal hearing on May 22, 1989. On August 29, 1989, she issued a Recommended Order.

The Florida Real Estate Commission adopts the Findings of Fact, except for the last sentence of Paragraph 5, Page 4, contained in the Hearing Officer's Recommended Order. The Commission rejects the statement that the "Respondent does not handle trust funds in his capacity as a real estate salesman." The Commission determined that the Hearing Officer misinterpreted that portion of the testimony which appears on Page 7, Line 20, of the transcript.

The Commission adopts the Conclusions of Law but rejects the Recommended Penalty, based on the reason cited above.

A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

Upon a complete review of the record and for the reasons cited above, the Florida Real Estate Commission ORDERS that the Respondent's license as a Florida real estate salesman be revoked.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s. 120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida

32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal,

DONE AND ORDERED this 17th day of October, 1989 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to Neil F. Garfield, Esquire, Envirwood Executive Plaza, Suite 200, Lauderhill, Fl 33313; to Hearing Officer Veronica Donnelly, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Fl 32399-1550; and to James Gillis, Esquire, DPR, Post Office Box 1900, Orlando, Fl 32802, this 7th day of November, 1989.

Director

Docket for Case No: 88-005774

Orders for Case No: 88-005774