STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0651

)

JOHN E. LITTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on May 10, 1989, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented as follows:

Petitioner: Arthur J. Shell, Esquire

Department of Professional Regulation Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

Respondent: no appearance STATEMENT OF THE ISSUES

The issues in this case are whether Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction and whether Respondent operated as a broker or salesman without a license.

PRELIMINARY STATEMENT

On December 23, 1988, Petitioner filed an Administrative Complaint against Respondent alleging that he agreed to provide a real estate appraisal report, collected $3500 in full payment for the appraisal, and failed to provide the appraisal or return the money. The Administrative Complaint alleged that Respondent thereby was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence and breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes.

The Administrative Complaint also alleged that from March 31, 1987, through February 15, 1988, Respondent was licensed as an inactive real estate broker.

Petitioner alleged that Respondent engaged in the above-described business transaction without holding a valid and current license as a broker, broker- salesman, or salesman, in violation of Section 475.42(1)(a), Florida Statutes, and thus in violation of Section 475.25(1)(e), Florida Statutes, which prohibits violations of Chapter 475.

By Election of Rights dated January 31, 1989, Respondent requested a formal hearing.

At the hearing, Petitioner called one witness and offered into evidence four exhibits. All exhibits were admitted.

No transcript was ordered and neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Respondent was licensed, prior to the events in question, as a real estate broker in the State of Florida, holding license number 0317607. At the time of the events in question, Respondent was licensed as an inactive broker because he had failed to renew his license. He subsequently renewed his license as a broker-salesman on February 16, 1988, when he became employed by an Orlando brokerage company.

   
   

2. In late 1987, David M. Garrick, a friend of Respondent and owner of two restaurants, hired Respondent to perform a real estate appraisal of the Crackers Bar and Grill, which Mr. Garrick was leasing and considering buying. Mr. Garrick met with Respondent and his partner, Mr. Marsh, and they agreed that Respondent would perform the appraisal for $3500.

   
   

3. Pursuant to their agreement, Mr. Garrick paid Respondent the sum of

   $1500 on December 11, 1987, as a retainer for the appraisal.

   
   

4. Although Mr. Garrick requested the appraisal several times in the following weeks, Respondent failed to provide it. Because of their friendship, Mr. Garrick did not pressure Respondent at this time.

   
   

5. In January, 1988, Respondent told Mr. Garrick that the appraisal was finished. Mr. Garrick thus paid Respondent the remaining $2000 on January 26, 1988.

   
   

6. Respondent never delivered the appraisal or refunded the money despite as many as 20 demands by Mr. Garrick to do so.

   
   

7. After being contacted by one of Petitioner's investigators, Respondent wrote Mr. Garrick a letter dated September 23, 1988, in which he apologized for the incident, explained that personal problems had interfered with his work, and promised full repayment within the next four to six months as a result of recent employment as an appraiser in Orlando. Respondent stated that he was expecting a check on October 30, 1988, and would be able to pay $500 to $750.

   
   

8. Through the date of the final hearing, which was seven and one-half months later, Mr. Garrick still had received no money from Respondent.

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Petitioner has authority to revoke, suspend, or otherwise discipline the licenses of real estate brokers for, among other things, fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust, in violation of Section 475.25(1)(b), Florida Statutes, or operating as a broker without holding a valid and current license as same, in violation of Sections 475.42(1)(a) and 475.25(1)(e), Florida Statutes.

    
    

11. Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

12. Respondent has breached a trust that Mr. Garrick placed in him and received money by making false promises. He induced Mr. Garrick to part with the final $2000 through the misrepresentation that the appraisal was finished when it obviously was not.

    
    

13. In agreeing with Mr. Garrick to perform a real estate appraisal, Respondent was providing a service for which a valid and current license is required. Section 475.01(1)(c), Florida Statutes. At the time, however, Respondent held no such license.

    
    

14. Rule 21V-24.001(3)(h), Florida Administrative Code, provides that the minimum penalty for a violation of Section 475.25(1)(b) is a reprimand and/or fine of up to $1000 per count and the maximum penalty is up to five years' suspension or revocation.

    
    

15. Rule 21V-24.001(3)(cc), Florida Administrative Code, provides that the minimum penalty for a violation of Section 475.25(1)(e) is as set forth above and the maximum penalty is up to eight years' suspension or revocation.

    
    

16. There are no apparent mitigating factors. On the other hand, the actions of Respondent have caused Mr. Garrick a financial loss. In addition, Respondent has never made a serious attempt to repay any of the money that he fraudulently obtained from Mr. Garrick.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Professional Regulation, Division of Real Estate, enter a Final Order revoking Respondent's license as a broker- salesman.

ENTERED this 26th day of June, 1989, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1989.

COPIES FURNISHED:

ARTHUR J. SHELL, ESQUIRE

DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF REAL ESTATE

400 WEST ROBINSON STREET ORLANDO, FL 32801

JOHN E. LITTON

POST OFFICE BOX 2189

WINTER PARK, FLORIDA 32790-2189

LAWRENCE A. GONZALEZ, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 1940 NORTH MONROE STREET

TALLAHASSEE, FLORIDA 32399-0792

KENNETH E. EASLEY, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 1940 NORTH MONROE STREET

TALLAHASSEE, FLORIDA 32399-0792

DARLENE F. KELLER, DIRECTOR DIVISION OF REAL ESTATE

400 WEST ROBINSON STREET ORLANDO FLORIDA 32802

Docket for Case No: 89-000651

Orders for Case No: 89-000651