STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-5132

)

BENJAMIN C. ROLFE and )

DUANE C. HEISER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on November 21, 1991, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Senior Attorney Florida Department of

Professional Regulation, Division of Real Estate Legal Section - Suite N 308 Hurston Building North Tower

400 West Robinson Street Orlando, Florida 32801-1772

For Respondent: Neil F. Garfield, Esquire

Garfield and Associates, P.A. World Executive Center

Suite 333

3500 North State Road 7

Fort Lauderdale, Florida 33319 STATEMENT OF THE ISSUE

Whether the allegations of the Administrative Complaint are true and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondents, Benjamin C. Rolfe and Duane C. Heiser, are licensed by Petitioner as real estate brokers. On July 19, 1990, Petitioner filed an administrative complaint which contained certain factual allegations and which

charged Mr. Rolfe and Mr. Heiser with having committed certain violations of the laws regulating real estate brokers. Five separate counts were contained in the administrative complaint.

Count I contained factual allegations and charged Mr. Heiser with having operated as a real estate broker without being the holder of a valid and current license in violation of Section 475.42(1)(a), Florida Statutes, and Section 475.25(1)(e), Florida Statutes.

Count II contained factual allegations and charged Mr. Heiser with having violated a lawful order of the Florida Real Estate Commission in violation of Section 475.25(1)(e), Florida Statutes.

Count III contained factual allegations and charged Mr. Heiser with dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes.

Count IV contained factual allegations and charged Mr. Rolfe with culpable negligence or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes.

Count V contained factual allegations and charged Mr. Rolfe with failing to maintain trust funds in the real estate brokerage escrow account or some other proper depository until disbursement thereof was properly authorized in violation of Section 475.25(1)(k), Florida Statutes.

Petitioner offered ten documentary exhibits. Five of these exhibits were accepted into evidence after the parties stipulated to the admissibility of these exhibits. The other five exhibits were rejected because there was no effort made to authenticate those exhibits. The exhibits admitted into evidence are as follows:

1. Petitioner's Exhibit 1 (a certified copy of Mr. Rolfe's licensure file)

2. Petitioner's Exhibit 2 (a certified copy of Mr. Heiser's licensure file)

3. Petitioner's Exhibit 7 (a copy of the "Office Inspection and Escrow Trust Account Audit Form" prepared by Petitioner's investigator on March 26, 1990)

4. Petitioner's Exhibit 8 (a composite

   copy of checks issued between October 5, 1989, and November 2, 1989, from Respondents' Property Management-Operating Account bank account)

5. Petitioner's Exhibit 10 (a copy of

escrow checks and ledger sheet for Respondents' checks numbered 1398 through 1441)

Mr. Rolfe and Petitioner stipulated that Petitioner had presented a prima facie case that Mr. Rolfe was guilty of culpable negligence in a business transaction as charged in Count IV of the Administrative Complaint. They also stipulated as to the penalty that should be imposed for Mr. Rolfe's violation of Section 475.25(1)(b), Florida Statutes.

Mr. Heiser and Petitioner stipulated that Petitioner had presented a prima facie case that Mr. Heiser was guilty of having violated a lawful order of the Florida Real Estate Commission as charged in Count II of the Administrative Complaint. They also stipulated as to the penalty that should be imposed for Mr. Heiser's violation of Section 475.25(1)(e), Florida Statutes.

Petitioner presented no evidence as to Counts I, III, or V of the Administrative Complaint. No evidence was presented by the parties as to either aggravating circumstances or mitigating circumstances.

No transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. The parties submitted separate, but identical, proposed recommended orders. The proposed findings of fact submitted by the parties are adopted in material part by this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an agency of the State of Florida charged with the responsibility and duty to prosecute violations of the statutes and rules regulating the practice of real estate in the State of Florida.

   
   

2. Respondent, Benjamin C. Rolfe, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0318091 in accordance with Chapter 475, Florida Statutes. The last license issued to Mr. Rolfe was as a broker with Squires Realty of the Palm Beaches, Inc., 721 U.S. 1, #217, North Palm Beach, Florida.

   
   

3. Respondent, Duane C. Heiser, is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0038233 in accordance with Chapter 475, Florida Statutes. The last license issued to Mr. Heiser was as a broker effective February 8, 1991, at Duane C. Heiser Realty Co., 1312 Commerce Lane A1, Jupiter, Florida.

   
   

4. On or about December 12, 1998, a Final Order was issued by the Florida Real Estate Commission and received by Mr. Heiser whereby his real estate broker's license was suspended for two (2) years from January 12, 1989, through January 10, 1991.

   
   

5. During the month of October 1989, Mr. Heiser violated the lawful suspension order of the Commission by personally delivering rental checks to and ordering the disbursement of escrow funds from the Property Management-Operating Account, which is an escrow account, of Squire's Realty Company of the Palm Beaches, Inc.

   
   

6. Between March 22 and March 26, 1990, the escrow account records of Mr. Rolfe, who was the qualifying broker for Squire's Realty of the Palm Beaches, Inc., were audited by Petitioner's authorized representatives. The Escrow/Trust Account Audit revealed that Respondent Rolfe failed to properly document and reconcile the Property Management-Operating Account, which is an escrow account. Mr. Rolfe was responsible for this account. Mr. Rolfe was negligent regarding the management of this escrow account by allowing a suspended licensee, Mr. Heiser, access to this account.

7. Mr. Rolfe and Petitioner stipulated that the appropriate penalty for Mr. Rolfe's violation of Section 475.25(1)(b), Florida Statutes, would be the imposition of an administrative fine in the amount of $300.00 and the placement of his licensure on probation for a period of one year. They further stipulated that the administrative fine was to be paid within thirty days of the filing of the final order. They also stipulated that during his term of probation Mr. Rolfe would be required to complete sixty hours of continuing education with thirty of those sixty hours being the thirty hour management course for brokers. They further stipulated that Mr. Rolfe would be required to provide to Petitioner satisfactory evidence of his completion of those sixty hours of continuing education and that those sixty hours of continuing education are to be in addition to any other continuing education required of Mr. Rolfe to remain active and current as a real estate broker in the State of Florida.

   
   

8. Mr. Heiser and Petitioner stipulated that the appropriate penalty for Mr. Heiser's violation of Section 475.25(1)(b), Florida Statutes, would be the imposition of an administrative fine in the amount of $300.00 and the placement of his licensure on probation for a period of one year. They further stipulated that the administrative fine was to be paid within thirty days of the filing of the final order. They also stipulated that during his term of probation, Mr. Heiser would be required to complete sixty hours of continuing education with thirty of those sixty hours being the thirty hour management course for brokers. They further stipulated that Mr. Heiser would be required to provide to Petitioner satisfactory evidence of his completion of those sixty hours of continuing education and that those sixty hours of continuing education are to be in addition to any other continuing education required of Mr. Heiser to remain active and current as a real estate broker in the State of Florida.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

10. Respondent Heiser and Petitioner stipulated that Mr. Heiser was guilty of having violated a lawful order of the Florida Real Estate Commission in violation of Section 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative Complaint.

    
    

11. Respondent Rolfe and Petitioner stipulated that Mr. Rolfe was guilty of culpable negligence in a business transaction in violation of Section 475.25(1)(b), Florida Statutes, as alleged in Count IV of the Administrative Complaint.

    
    

12. There was no evidence to support the allegations of Counts I, III, or V of the Administrative Complaint. Since the burden of proof in this proceeding is on Petitioner, Counts I, III, and V of the Administrative Complaint should be dismissed.

    
    

13. Rule 21V-24.001, Florida Administrative Code, provides the pertinent disciplinary guidelines adopted by Petitioner for violations of the various provisions of Section 475.25, Florida Statutes. The penalty to which Respondent Heiser and Petitioner stipulated for his violation of Section 475.25(1)(e), Florida Statutes, is within the range of penalties found in those guidelines. There was no evidence of either aggravating or mitigating circumstances. Consequently, it is concluded that the stipulated penalty should be imposed.

14. Rule 21V-24.001, Florida Administrative Code, provides the pertinent disciplinary guidelines adopted by Petitioner for violations of the various provisions of Section 475.25, Florida Statutes. The penalty to which Respondent Rolfe and Petitioner stipulated for his violation of Section 475.25(1)(b), Florida Statutes, is within the range of penalties found in those guidelines. There was no evidence of either aggravating or mitigating circumstances. Consequently, it is concluded that the stipulated penalty should be imposed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which:

1. Dismisses Counts I, III, and V of the Administrative Complaint;

   
   

2. Finds Mr. Heiser guilty of having violated a lawful order of the Florida Real Estate Commission in violation of Section 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative Complaint. It is further recommended that the Final Order impose an administrative fine in the amount of

   $300.00 upon Mr. Heiser and place his licensure on probation for a period of one year. It is also recommended that the conditions of probation require that Respondent Heiser pay the said administrative fine within thirty days of the filing of the final order and that he be required to complete sixty hours of continuing education during his term of probation. It is further recommended that as part of the sixty hours of continuing education, Mr. Heiser be required to successfully complete the thirty hour management course for brokers, that he be required to provide satisfactory evidence of completion of such continuing education to Petitioner, and that these sixty hours of continuing education be in addition to any other continuing education required of Respondent Heiser to remain active and current as a real estate broker in the State of Florida.

   
   

3. Finds Mr. Rolfe guilty of culpable negligience in a business transaction in violation of Section 475.25(1)(b), Florida Statutes, as alleged in Count IV of the Administrative Complaint. It is further recommended that the Final Order impose an administrative fine in the amount of $300.00 upon Mr. Rolfe and place his licensure on probation for a period of one year. It is also recommended that the conditions of probation require that Respondent Rolfe pay the said administrative fine within thirty days of the filing of the final order and that he be required to complete sixty hours of continuing education during his term of probation. It is further recommended that as part of the sixty hours of continuing education, Mr. Rolfe be required to successfully complete the thirty hour management course for brokers, that he be required to provide satisfactory evidence of completion of such continuing education to Petitioner, and that these sixty hours of continuing education be in addition to any other continuing education required of Respondent Rolfe to remain active and current as a real estate broker in the State of Florida.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of December, 1991.

CLAUDE B. ARRINGTON

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 30th day of December, 1991.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

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

Neil F. Garfield, Esquire Garfied & Associates, P.A. World Executive Building Suite 333

3500 North State Road 7

Fort Lauderdale, Florida 33319

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Darlene F. Keller Division Director Division of Real Estate

Department of Professional Regulation

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE

Petitioner, DOAH CASE NO. 90-5132 vs. CASE NO. 0166577,

0166578

BENJAMIN C. ROLFE and DUANE C. HEISER

Respondents.

/

FINAL ORDER

On February 20, 1992, the Florida Real Estate Commission heard this case to issue a Final Order.

Hearing Officer Claude B. Arrington of the Division of Administrative Hearings presided over a formal hearing on November 21, 1991. On December 30, 1991, he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact, Conclusions of Law and Recommendation. A copy of this Recommended Order is attached here to as Exhibit A and made a part hereof.

The Commission interprets the Hearing Officer's reference to continuing education to also include post-license education. Therefore, the Commission ORDERS that Respondent Heiser pay an administrative fine of $300 and be placed on probation for a period of one (1) year, subject to the following terms and conditions:

1. The licensee shall notify the Division of Real Estate of any changes in address or employment.

   
   

2. The licensee shall not violate any provisions of Chapter 475, Florida Statutes, or Rules adopted by the Commission.

   
   

3. The licensee shall not be convicted or found guilty of a crime in any jurisdiction.

   
   

4. The licensee shall pay the administrative fine within 30 days of the filing of the Final Order.

5. The licensee shall enroll in and satisfactorily complete 60 hours of continuing education and/or post-licensure education. Thirty of the 60 hours shall include a 30-hour management course for brokers. These 60 hours of education shall be in addition to any other continuing education required of the licensee to remain active and current as a real estate broker in the State of Florida.

The Commission further ORDERS that Respondent Rolfe pay an administrative fine of $300 and be placed on probation for a period of one (1) year, subject to the following terms and conditions:

1. The licensee shall notify the Division of Real Estate of any changes in address or employment.

   
   

2. The licensee shall not violate any provisions of Chapter 475, Florida Statutes, or Rules adopted by the Commission.

   
   

3. The licensee shall not be convicted or found guilty of a crime in any jurisdiction.

   
   

4. The licensee shrill pay the administrative fine within 30 days of the filing of the Final Order.

   
   

5. The licensee shall enroll in and satisfactorily complete 60 hours of continuing education and/or post-license education. Thirty of the 60 hours shall include a 30-hour management Course for brokers. These 60 hours of education shall be in addition to any other continuing education required of the licensee to remain active and current as a real estate broker in the State of Florida.

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 1992 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: Neil F. Garfield, Esq. , Garfield and Associates, P.A., World Executive Center Suite 333, 3500 North State Road 7, Ft. Lauderdale, FL 33319; to Hearing Officer Claude B. Arrington, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and to James Gillis, Esq., DPR, P. 0. Box 1900, Orlando, FL 32802, this 3 day of March , 1992.

Docket for Case No: 90-005132

Orders for Case No: 90-005132