STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4991

) (DPR Case No. 0158621)

CHARLES GARY SPANIAK, )

)

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 cause on November 15, 1989, in Fort Myers, 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 32817

For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether the Respondent's real estate salesman license should be disciplined because of the misconduct alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

In an Administrative Complaint dated August 28, 1989, the Petitioner, Department of Professional Regulation, Division of Real Estate (hereinafter the Department) charged Respondent, Charles Gary Spaniak (hereinafter Spaniak), a licensed real estate salesman, with a violation of Chapter 475, Florida Statutes. The Respondent is charged with having committed fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction.

The Respondent disputed the allegations of fact set forth in the Administrative Complaint, and timely requested a formal hearing on September 26, 1989.

Prior to hearing, the Hearing Officer received a telephone message from Denise Bransfield, who stated that she was from the Respondent's offices. The message notified the Hearing Officer that the Respondent was not in town on the hearing date, and that he wanted to voluntarily consent to the cancellation of his license. As the consent to cancellation was not presented prior to the taking of evidence, the hearing proceeded as scheduled.

During the hearing, the Petitioner submitted five exhibits and presented one witness. All of the offered exhibits were admitted into evidence upon verification.

Prior to the filing of the transcript, a Consent to Cancellation was received by the Division of Administrative Hearings from the Respondent on November 16, 1989. The Consent to Cancellation was marked and filed as Hearing Officer Exhibit #1.

The transcript was received on December 7, 1989, and the Proposed Recommended Order was timely received on December 18, 1989. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with licensing and regulation of real estate salesman.

   
   

2. At all times material to these proceedings, Respondent Spaniak was licensed as a real estate salesman in Florida, having been issued license number 0153115 in accordance with Chapter 475, Florida Statutes. The license expired on March 31, 1989, due to non-renewal.

   
   

3. On or about October 15, 1985, Linda Myers, d/b/a Happy Days Ice Cream, leased space in a shopping center owned by Hancock Square Partnership, a Florida General Partnership, in order to operate an ice cream shop.

   
   

4. Respondent Spaniak, Norbert Murray, and Timothy H. Heuer, were the three general partners within the Hancock Square Partnership.

   
   

5. On May 2, 1988, Linda Meyers filed a third party complaint against the partnership, alleging that she entered into the lease based upon the representations of Respondent regarding the location within the shopping center she was leasing and the number of signed leases within the center. Both of these factors were considered essential by Linda Meyers in her decision to sign the lease and financially obligate herself to run the business.

   
   

6. Based upon her reliance as to the Respondent's representations, Linda Meyers signed the lease. Once her business venture was begun, she discovered she was not given the location set forth in the lease, and very few businesses occupied the shopping center.

   
   

7. As the ice cream shop relied on a large volume of walk-in business from the shopping center and an easily accessible location, Linda Meyers was not able to run a successful business in the location she was actually provided in the low occupancy shopping center. The Respondent misrepresented both the business location and the number of established businesses at the center.

8. But for Respondent's misrepresentations, Linda Meyers would not have financially obligated herself to her financial detriment in the ice cream business. The misrepresentations contributed to her failure in the business and her loss of monies in the venture.

   
   

9. A default judgement was entered against Respondent Spaniak in the third party complaint on October 19, 1988, for damages to Linda Meyers in the amount of $100,132.47. It was judicially determined that Respondent Spaniak materially misrepresented facts during the lease signing to Linda Meyers' detriment.

   
   

10. The Respondent has not satisfied the judgement.

    
    

11. In mitigation, the Respondent has voluntarily consented to the cancellation of his real estate salesman's license.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. In a proceeding to discipline a professional license, 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).

    
    

14. Section 475.25(1)(b), Florida Statutes, provides that the Florida Real Estate Commission may take appropriate disciplinary action against a licensee if it finds that the licensee:

    
    

    Has been 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.

    
    

15. The proof adduced at hearing established that the Respondent materially misrepresented two significant conditions at the shopping center prior to the signing of the lease agreement by Linda Meyers. Without the proposed ice cream shop location, and the represented number of businesses in the shopping center, Linda Meyers was unable to run a successful business. But for the misrepresentations made during the lease negotiations, Linda Meyers would not have entered into the lease and other financial commitments to her financial detriment. Accordingly, Respondent Spaniak is guilty of having violated Section 475.25(1)(b), Florida Statutes.

    
    

16. Rule 21V-24.001(3)(h), Florida Administrative Code, provides the disciplinary guidelines for a violation of Section 475.25(1)(b), Florida Statutes. The rule provides as follows, in pertinent part:

    
    

    . . . The minimum penalty for all below listed sections is a reprimand and/or fine up to

    $1,000.00 per count . . . The maximum penalties are as listed:

    * * *

    475.15(1)(b) - Up to 5 years suspension or revocation.

17. Although mitigating and aggravating circumstances were considered by the Hearing Officer pursuant to Rule 21V- 24.001(4), Florida Administrative Code, the violation appears to be within the range of the disciplinary guidelines set forth in Chapter 21V-24, Florida Administrative Code. The Respondent's ability to pay the outstanding judgment was not demonstrated by clear and convincing evidence at hearing for purposes of aggravation of penalty. The Respondent's offer of the surrender of his license post hearing was not persuasive for purposes of mitigation of penalty. Accordingly, the standard guidelines for discipline should be used to determine the penalty in this case.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That Respondent, Charles Gary Spaniak be found guilty of the violation of Section 475.25(1)(b), Florida Statutes, based upon the material misrepresentations made to Linda Meyers, which induced her to sign a shopping center lease to her financial detriment.

That the Respondent Spaniak's privilege to reinstate his real estate salesman's license be suspended for five years.

DONE and ENTERED this 28th day of December, 1989, in Tallahassee, Florida.

VERONICA E. D0NNE

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 28th day of December, 1989.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1

2. Accepted. See HO #2

3. Accepted. See HO #3

4. Accepted. See HO #4

5. Accepted. See HO #5

6. Accepted. See HO #6

7. Accepted. See HO #7

8. Accepted. See HO #8

9. Accepted. See HO #9

10. Accepted. See HO #10

COPIES FURNISHED:

Darlene F. Keller Division Director Division of Real Estate

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

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

James H. Gillis, Esquire Division of Real Estate

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

Charles Gary Spaniak c/o NRC Realty, Inc.

12995 Cleveland Avenue, #150 Fort Myers, Florida 33907

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

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. 0158621

DOAH CASE NO. 89-4991

CHARLES GARY SPANIAK

Respondent.

/

FINAL ORDER

On February 20, 1990, the Florida Real Estate Commission heard this case to issue a Final Order.

Hearing Officer Veronica E. Donnelly of the Division of Administrative Hearings presided over a formal hearing on November 15, 1989. On December 28, 1989, she issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact and Conclusions of Law. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

However, upon a complete review of the record, including the Petitioners Exceptions to the Recommended Order, the Florida Real Estate Commission finds that the Hearing Officers Recommended Penalty should be modified and interpreted to mean a "five year suspension."

The Florida Real Estate Commission therefore ORDERS that the real estate license of Respondent Charles Gary Spaniak be suspended for a period of five (5) years.

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 20th day of February, 1990 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: Charles Gary Spaniak c/o NCR Realty Inc. 12995 Cleveland Avenue #150, Ft. Myers, Fl 33907; to Hearing Officer Veronica E. Donnelly, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Fl 32399-1550; and to James Gillis, Esquire, DPR, P.O. Box 1900, Orlando, Fl 32802, this 7th day of March, 1990.

Director

Docket for Case No: 89-004991

Orders for Case No: 89-004991