STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-4003

)

ROBERT A. MOFFA, )

)

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 12, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation Division of Real Estate

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

For Respondent: Robert A. Moffa, Pro Se

8012 Hancock Street

Riverview, Florida 33569 STATEMENT OF THE ISSUES

Whether or not Respondent's real estate salesman's license should be disciplined because he failed to pay a final judgment against him in favor of Jerry E. Cole of Bray's Pest Control Company in violation of Subsections 475.25(1)(b) and (d), Florida Statutes (1987); for making false promises and engaging in dishonest dealing by trick, scheme or devise and being guilty of breach of trust in a business transaction as well as having failed to account and deliver rental funds.

PRELIMINARY STATEMENT

By its Administrative Complaint filed on June 22, 1989, Petitioner, Florida Department of Professional Regulation, Division of Real Estate, charged Respondent in a two count Administrative Complaint with one violation each of Subsection 475.025(1)(b) and (d), Florida Statutes. Thereafter, Respondent denied the allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The matter was set for hearing on October 12, 1989 and the hearing was held as scheduled. The parties were afforded leave through

October 24, 1989, to submit proposed recommended orders which were filed and considered in preparation of this recommended order. Proposed findings not incorporated herein are the subject of specific rulings in an appendix. 1/

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I made the following relevant:

FINDINGS OF FACT

1. Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. (Official recognition taken of Section 20.30, Chapters 120, 455, and 475, Florida Statutes).

   
   

2. Respondent is now, and was at all times material hereto, a licensed real estate salesman in Florida having been issued license No. 0199126 in accordance with Chapter 475, Florida Statutes. The last license issued Respondent was as a non-active salesman with a home address of 6312 Balboa Lane, Apollo Beach, Florida 33570.

   
   

3. During times material, Respondent was the owner and sole stockholder of Computer Real Estate Sales, Inc. During times material, Respondent was a licensed real estate salesman in association with Computer Real Estate Sales, Inc. located at 600 West Jefferson Street, Brooksville, Florida 33512.

   
   

4. During early March, 1986, Respondent caused to be ordered a termite treatment to be performed in March, 1986 on property owned by Richard E. Atkinson (Atkinson) located at 21476 Chadfield Street in Brooksville.

   
   

5. The subject property treated for termites was being managed by Respondent through his company, Computer Real Estate, Inc. Respondent was previously the owner of that property as well as four other rental properties that he sold to Atkinson.

   
   

6. Respondent caused the property management account of Atkinson to be debited by the sum of $380.00 to pay for the termite treatment performed by Bray's Pest Control (Bray's). (Petitioner's Exhibit 3).

   
   

7. Respondent failed to pay the $380.00 to Bray's for the termite treatment nor did he later credit Atkinson's property management account when he failed to pay Bray's for the termite treatment. To collect payment for the termite treatment, Bray's was forced to file a civil complaint against Respondent in county court, Hernando County. On February 25, 1987, a final judgment was entered against Respondent in the amount of $391.40 plus costs of

$36.00 and interest computed at the rate of 12% from March, 1986 until paid. (Petitioner's Exhibits 4 and 5).

1. Subsequent to entry of the judgment and despite Bray's efforts to collect the award, Respondent failed and refused to satisfy the final judgment until an initial payment was made on March 5, 1989 and the balance due was paid on July 13, 1989.

2. Respondent's contention at hearing that he was simply stockholder and not liable for the obligations of Computer Real Estate Sales, Inc., was rejected based on a review of pleadings filed which indicated that he was sole stockholder during times material and that several contractors relied upon his representation, as owner of Computer Real Estate Services, Inc., to make payments for debts and obligations incurred by that company.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

5. The Petitioner's authority is derived from Chapter 475, Florida Statutes.

   
   

6. Subsection 475.25(1), Florida Statutes authorizes Petitioner to suspend a license or permit for a period not exceeding ten years; to revoke a real estate license or permit; to impose an administrative fine not to exceed

$1,000.00 for each count or separate offense; and, impose a reprimand or any or all of the foregoing, if it finds that the licensee has engaged in violations of Chapter 475.25, Florida Statutes. Rule 21V-24.001, Florid Administrative Code, provides as a minimum penalty, a reprimand and/or a fine up to $1000.00 per count and a maximum penalty of up to five years suspension or revocation for violations of Subsection 475.25(1)(b), Florida Statutes and up to five years suspension for violations of Subsection 475.25(1)(d), Florida Statutes. Clear and convincing evidence was offered herein to establish that Respondent ordered pest control services for property being managed on behalf of Richard E. Atkinson. Subsequently, Respondent debited the Atkinson escrow account which as maintained under his control on behalf of Atkinson in the amount of $380.00 for the purpose of paying Bray's for the pest control services he ordered.

Thereafter, Respondent failed to use the funds he debited from escrow for the purposes intended, all without the permission or consent of Atkinson. Instead Respondent forced Bray's to file a civil action to collect the fee for the pest control services rendered. The fact that the pest control company billed the services to Computer Realty is of no moment based on the fact that Respondent was the sole owner and shareholder of Computer Realty and that was the entity through which Respondent conducted his real estate activities. Based thereon, it is concluded that Petitioner presented clear and convincing evidence that Respondent is guilty of false promises, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.

Likewise, Petitioner presented clear and convincing evidence that Respondent, by failing to account and deliver the $380.00 which he debited from Atkinson's real estate management account for the purpose of paying Bray's Pest Control Company, engaged in conduct within the purview of Subsection 475.25(1)(d), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED:

1. The Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $1,000.00 payable to the Florida Real Estate Commission within 30 days of the entry of the final order herein or Respondent's real estate license shall be revoked.

   
   

2. In the event that Respondent pays the above referred $1,000.00 fine to Petitioner within 30 days of entry of the final order herein, Respondent's real estate license No. 019916 be placed on probation for a period of (1) one year. 2/

DONE and ENTERED this 5th day of December, 1989, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 5th day of December, 1989.

ENDNOTES

1/ Respondent's proposed order is essentially in the form of legal argument which was considered by me but is not incorporated herein inasmuch as it is legal argument.

2/ This recommendation is in accord with the guidelines set forth in Rule Chapter 21V, Florida Administrative Code, in view of the mitigating evidence offered by Respondent during the course of the hearing.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional Regulation - Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Robert A. Moffa 8012 Hancock Street

Riverview, Florida 33569

Darlene F. Keller Executive Director Division of Real Estate

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

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-004003

Orders for Case No: 89-004003