STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0511

)

RAYMOND S. FARRIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on May 24, 1990, in Jacksonville, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation Division of Real Estate

400 W. Robinson Street Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Raymond S. Farris, pro se

5711 Richard Street, Suite #1

Jacksonville, Florida 32216 STATEMENT OF THE ISSUES

The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.

On December 7, 1989, Petitioner filed an Administrative Complaint against Respondent. Respondent filed an Election of Rights disputing the factual allegations and requesting a formal hearing. The request was forwarded to the Division of Administrative Hearings which scheduled the proceeding.

At the hearing, Petitioner presented the testimony of Raymond S. Farris, Samir Najjar, Robert Thornton, and Robert Miller, and had four exhibits admitted into evidence. Respondent testified on his own behalf. One joint exhibit was admitted.

A transcript was filed on June 7, 1990. The Petitioner filed a proposed recommended order. Proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for licensure and regulation of Florida real estate brokers. Respondent is, and at all material times has been, licensed by Petitioner as a real estate broker, license number 0025968.

   
   

2. On or about November 22, 1988, the Respondent presented, to Dr. Samir Najjar, a parcel of land which was available for purchase. The Respondent identified the location of the property on a map and represented that the property could subsequently be resold for a profit. The doctor was familiar with the location and agreed to participate in the purchase transaction. The doctor provided, to the Respondent, a check in the amount of $25,000, dated November 22, 1989.

   
   

3. Without Dr. Najjar's knowledge or consent, the Respondent deposited the

   $25,000 check into his personal account, and converted the funds for personal use. The funds were not used to purchase the land parcel. The Respondent claims to have used the funds to operate his personal real estate publishing and advertising business. Dr. Najjar did not authorize such use.

   
   

4. On or about January 20, 1989, the Respondent presented, to Dr. Najjar, a house which was available for purchase. The Respondent represented that the house could subsequently be resold for a profit. After seeing several photographs of the house, the doctor agreed to participate in the purchase transaction. On January 20, 1989, Dr. Najjar provided to the Respondent, a check in the amount of $15,000.

   
   

5. Without Dr. Najjar's knowledge or consent, the Respondent deposited the

   $15,000 check into his personal account, and converted the funds for personal use. The funds were not used to purchase the house. The Respondent claims to have used the funds to operate his personal real estate publishing and advertising business. Dr. Najjar did not authorize such use.

   
   

6. On or about February 28, 1989, Dr. Najjar, Dr. Najjar's brother, and the Respondent entered into an agreement with G. R. Thornton, to purchase a warehouse/office property owned by Thornton. The first paragraph of the contract for sale, which was signed by all parties, states, "Receipt is hereby acknowledged by Raymond S. Farris, hereinafter called agent, of the sum of

   $3,000 as binder deposit..." from the Najjar brothers. The contract states that an additional deposit of $17,000 was due within five days of the contract's acceptance by all parties.

   
   

7. Contrary to the sales contract representation, the Respondent did not receive the initial $3,000 binder deposit from the Najjar brothers. Upon presentation of the contract to the seller, the Respondent failed to inform the seller that no binder deposit had been made. The seller learned that the deposit had not been made when, six or seven days later, the seller contacted Mr. Farris to ascertain the whereabouts of the deposit, including the additional

   $17,000. At that time, the seller was informed by the Respondent that no binder deposit had been made and that the purchase transaction would not be completed.

   
   

   CONCLUSIONS OF LAW

   
   

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

9. Petitioner has responsibility for disciplinary action taken against licensed real estate brokers. Section 475.25(1), Florida Statutes. Section 475.25(1)(b), Florida Statutes, in relevant part provides that the licence of a Florida real estate broker may be disciplined by the Petitioner when the Respondent "[h]as been 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 in this state. "

   
   

10. In order to prevail, the Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla.

    1987). In this case, the Petitioner has met the burden. The Respondent has clearly violated Sections 475.25(1)(b), Florida Statutes, in his conversion to personal use of funds provided by Dr. Najjar for real property investments, and in his failure to fully disclose the binder deposit situation to the seller in the Thornton warehouse/office purchase.

    
    

11. Violation of disciplinary statutes is punishable by denial of a license renewal application, or by a license suspension for a period not to exceed ten years, or by revocation of the license, or through an administrative fine not to exceed $1,000 for each count or separate offense, or through issuance of a reprimand, or through any combination thereof. Section 475.25(1), Florida Statutes.

    
    

12. Guidelines for the imposition of disciplinary action are as stated in Chapter 21V-24, Florida Administrative Code. The recommended range of penalty for violation of Section 475.25(1)(b), Florida Statutes, includes suspension of the license for up to five years or revocation, depending in part on the nature and number of specific violations. Rule 21V-24.001, Florida Administrative Code.

    
    

13. The Respondent offered no justification for his actions. He admitted that he had converted the Najjar funds without Dr. Najjar's knowledge or consent. He admitted that he failed to inform Mr. Thornton that there was no binder deposit until several days after the presentation and acceptance of the contract by the seller.

    
    

14. The Respondent suggests that, in the Thornton transaction, he acted not as an agent, but as a buyer, and therefore should not be subject to disciplinary action for the misrepresentation. He notes that there was no commission being paid in the transaction. Nonetheless, the contract for sale clearly identifies the Respondent as an agent and the seller knew the Respondent to be a real estate broker. The evidence does not support the Respondent's assertion.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

that the Department of Professional Regulation, Division of Real Estate, enter a Final Order revoking the licensure of Raymond S. Farris.

DONE and ENTERED this 6th day of July, 1990, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 6th day of July, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-0511

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows:

4. The date of the check indicates that the transaction occurred on November 22, 1988, rather than November 27, 1988.

Respondent

The Respondent did not file a proposed recommended order.

COPIES FURNISHED:

Raymond S. Farris

5711 Richard Street, Suite #1

Jacksonville, Florida 32216 James H. Gillis, Esq. Division of Real Estate

Department of Professional Regulation

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

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 General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Docket for Case No: 90-000511

Orders for Case No: 90-000511