STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-6024

)

RENE A. REMUND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 19, 1989 at Clearwater, Florida.

APPEARANCES

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

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Wayne J. Boyer, Esquire

1968 Bayshore Boulevard

Dunedin, Florida 34698 STATEMENT OF THE ISSUES

Whether Respondent received his real estate licenses by fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint filed July 26, 1988, the Department of Professional Regulation, Board of Real Estate, Petitioner, seeks to revoke, suspend, or otherwise discipline the licenses of Rene A. Remund, Respondent, as a real estate broker and salesman. As grounds therefor, it is alleged that Respondent received his licenses as a real estate salesman and broker by fraud, misrepresentation, or concealment in failing to disclose a judgment rendered against him on allegations of fraudulent misconduct.

At the hearing, Respondent stipulated that all times relevant hereto, he was licensed as alleged. Thereafter, Respondent called three witnesses, including himself, and seven exhibits were admitted into evidence.

Neither party timely filed proposed Findings.

After considering all evidence presented, I make the following.

FINDINGS OF FACT

1. By Application for Licensure as a Real Estate Salesman dated September 10, 1985 (Exhibit 5) Respondent applied for and was approved to take the examination for licensure as a real estate salesman.

   
   

2. As a result of passing this examination, he was duly licensed.

   
   

3. In response to questions 7a and 7b inquiring whether the applicant had ever been charged with fraudulent or dishonest dealing, he answered "No -- but see add. disclosure info attached." Attached thereto was a long typewritten statement disclosing monetary judgments entered against him in Colorado based on non real estate related debt and a pending personal bankruptcy.

   
   

4. Before submitting this application, Respondent telephoned the Real Estate Commission to inquire about the answer to question 7 and was referred to an attorney from the Attorney General's Office assigned to the Commission. That attorney advised Respondent that the Commission was primarily interested in criminal charges filed against an applicant and not civil charges. He was further told to include a supplement to his application with information concerning the civil charges, including the name of his attorney, so the Commission could obtain additional information if desired.

   
   

5. Respondent complied with this advice by listing the name of his attorney and accountant at the time these civil actions were brought against him.

   
   

6. After reviewing Respondent's application with the attached explanation of the civil actions brought against him in Colorado, his application to sit for the salesman's examination was approved.

   
   

7. On September 24, 1987, Respondent applied for licensure as a Real Estate Broker and answered questions 7(a) and 7(b) simply "No" on the assumption that his qualified no on the salesman application had been approved and it was unnecessary to again explain the civil actions.

   
   

8. The deposition of Respondent's attorney in the Colorado civil actions was admitted as Exhibit 7. Exhibit 1, which includes a judgment of the District Court for the City and County of Denver, Colorado, found Respondent (a corporate defendant in that case) effected a fraud upon the plaintiffs. This finding was entered in a default judgment against Respondent when his attorney negligently failed to timely file an answer to the complaint. Respondent's substitute attorney's motion to set aside the default judgment was denied.

   
   

9. Respondent is in the process of filing personal bankruptcy and therein will challenge the default judgment's conclusion that Respondent's actions leading to that judgment were fraudulent. Since no evidence was ever presented regarding the allegations in the Colorado complaint, that judgment is not res judicata in the bankruptcy proceedings.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Respondent is here charged with violation of section 475.25(1), Florida Statutes which authorizes the Real Estate Commission to discipline a license if it finds the licensee:

    
    

    (m) Has obtained a license by means of fraud, misrepresentation or concealment.

    
    

12. Since this is a license revocation proceeding, the Commission must prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1988).

    
    

13. Fraud may be actual or constructive. Actual fraud, which is here alleged, involves an intentional untruth between parties to a transaction. Deceit relates to the perpetration of a deception by means of misrepresentation, concealment, or other contrivance. 27 FLA JUR 2d Section 3 Fraud and Deceit.

    
    

14. The essential difference between actual fraud or deceit and a breach of warranty involves the requirement of an intent to deceive and knowledge of falsity by the person sought to be charged. Id section 8.

    
    

15. Before submitting his application for licensure, Respondent contacted the Commission staff to ascertain how he should answer question 7 on the application so as to provide adequate information to allow the Commission to verify the character of the civil suits brought against him in Colorado. By following the advice given, the Respondent can hardly be found guilty of intentionally misleading the Commission regarding his prior conduct.

    
    

16. The deposition of Randy Schwartz (Exhibit 4) confirms Respondent's testimony that he was advised by an attorney at the Commission that the Commission was much more concerned with criminal charges and was less concerned with civil actions brought against an applicant; and that, so long as the applicant provided adequate information to facilitate an investigation of the civil suits, his response to question 7 was adequate. That his response was deemed adequate when his application was processed is confirmed by his application being approved.

    
    

17. Having the prior determination that the civil actions in Colorado would not impair his qualifications for licensure as a real estate salesman, the fact that Respondent did not again include this explanation in his broker's application is hardly evidence that he intended to misrepresent his qualifications or conceal information from the Commission.

    
    

18. From the foregoing, it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that Rene A. Remund intended to defraud, conceal information from, or to misrepresent material facts in his applications for licensure as a real estate salesman and as a broker.

RECOMMENDATION

It is RECOMMENDED that the Real Estate Commission issue a Final Order finding Rene A. Remund not guilty of obtaining his licenses as a real estate salesman and broker by fraud, misrepresentation, or concealment.

DONE AND ENTERED this 23rd day of June, 1989, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 23rd day of June, 1989.

COPIES FURNISHED:

Darlene F. Keller Division of Real Estate

Department of Professional Regulation

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

Bruce D. Lamb General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

Arthur R. Shell, Jr., Esquire Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802-34698

Wayne J. Boyer, Esquire 1968 Bayshore Boulevard Dunedin, Florida

Docket for Case No: 88-006024

Orders for Case No: 88-006024