STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-2814

)

EDWARD GRANT MARKLEY, )

)

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 July 10, 1991, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation Division of Real Estate

Hurston North Tower

400 W. Robinson Street Orlando, Florida 32801-1772

For Respondent: Edward Grant Markley, pro se

6945 103rd Street

Jacksonville, Florida 32210 STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

On May 17, 1990, Petitioner filed a Notice To Show Cause Why The Commission Should Take No Action against the Respondent. The notice alleges that "Respondent is guilty of having had a nursing home administrator's licence relinquished in violation of Subsection 475.455(2), Florida Statutes, and therefore in violation of Section 475.25(1)(e), Florida Statutes. Respondent disputed the factual allegations and requested a formal hearing. The Petitioner forwarded the request to the Division of Administrative Hearings for further proceedings.

At the hearing, Petitioner had exhibits numbered 1-5 admitted into evidence. Respondent testified on his own behalf, presented the testimony of Raymond Harris, and had one composite exhibit admitted.

No hearing transcript was filed. The parties timely filed proposed recommended orders. The 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. Respondent Edward Grant Markley is and at all material times has been licensed as a real estate broker, Florida license numbers 0268896 and 0530864. The Respondent's most recent licensure was as a broker for Harris Real Estate and Associates, Inc., t/a C-21 Harris Real Estate and Associates, Inc., 6945 103rd Street, Jacksonville, Florida 32210 and Harris Real Estate and Associates, Inc. of Orange Park, 2346 Kingsley Avenue, Orange Park, Florida 32073.

   
   

2. From a date uncertain in 1987 to July of 1988, Respondent was the licensed nursing home administrator at Holly Point Manor in Orange Park, Florida.

   
   

3. By letter dated August 22, 1988, Respondent was advised that, based upon a complaint, an investigation was being undertaken related to his licensure as administrator of the Holly Point Manor nursing home.

   
   

4. The Respondent applied for licensure as a real estate salesman on October 5, 1988. Question 14(a) of the application reads "[h]as any license, registration, or permit to practice any regulated profession, occupation, or vocation been revoked, annulled or suspended in this or any other state...upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending?" In response to the question, Respondent wrote "see attached". Petitioner's files contain the application but do not contain the attachment. Respondent did not retain a copy of the attachment. Respondent testified that in the attachment he disclosed the investigation related to his licensure as a nursing home administrator. There is no evidence contradicting his testimony. The Respondent's real estate salesman's license was issued effective December 30, 1988.

   
   

5. On July 2, 1991, an Administrative Complaint was filed by the Department of Professional Regulation against the Respondent alleging failure to assure competent nursing management, staffing, and care in the referenced nursing home. Following an informal hearing, which left the matter unresolved, the Department of Professional Regulation, on December 18, 1990, filed an Amended Administrative Complaint specifically alleging that an investigation in July of 1988 revealed medical neglect and inadequate supervision and care of patients in the facility.

   
   

6. On January 23, 1991, the Respondent executed a voluntary relinquishment of license. The executed document states that the Respondent entered into the agreement "[t]o avoid the necessity of further administrative proceedings in this case" and that the licensure was relinquished "with the provision that Respondent agrees never again to apply for licensure as a nursing home administrator in the State of Florida."

   
   

7. At the time the license was relinquished, Respondent was no longer associated with or employed in the nursing home industry. He does not intend to re-enter the industry, and was therefore amenable to relinquishing his license.

   
   

8. On February 18, 1991, the Florida Board of Nursing Home Administrators, Florida Department of Professional Regulation, issued a Final Order in which tie

   Board found "that all the allegations in the Administrative Complaint are accepted and Respondent may voluntary (sic) relinquish his license. "

   
   

9. There is no evidence which indicates that the Respondent failed to cooperate in the nursing home investigation or in the instant matter. There is no evidence that Respondent has been unable or unwilling to appropriately discharge his responsibilities as a real estate salesman or broker.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Petitioner has responsibility for disciplinary action taken against licensed real estate brokers. Section 475.25(1), Florida Statutes.

    
    

12. The Petitioner must establish, by clear and convincing evidence, the truthfulness of the allegations set forth in the Notice To Show Cause Why The Commission Should Take No Action. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 34 (Fla. 1st DCA 1977); Ferris v. Turlington,

    510 So.2d 292 (Fla. 1987). As to the factual allegations Petitioner has met the burden.

    
    

13. Petitioner asserts that it has cause to discipline the licensed Respondent by operation of Sections 475.455(2) and 475.25(1)(e), Florida Statutes.

    
    

14. Section 475.455(2), Florida Statutes, provides:

    
    

    (2) If the commission 1/ finds that another state agency has suspended or revoked the license or registration of, or imposed a penalty against, a licensee, it shall issue a notice to the licensee to show cause why the commission should take no action, which notice shall provide for a hearing in accordance with chapter 120, upon request.

    
    

15. Petitioner asserts that Respondent's voluntary relinquishment of his nursing home administrator license constitutes a penalty imposed against the Respondent. However, the facts do not establish that the Respondent's license was suspended or revoked or otherwise penalized. The executed document relinquishing the license clearly states that the purpose of the voluntary relinquishment was to avoid the necessity of further administrative proceedings in the case. There is no admission by Respondent as to the allegations in the Administrative Complaints related to his licensure as a nursing home administrator. At the time the license was relinquished, Respondent was no longer associated with or employed in the nursing home industry. He did not intend to re-enter the industry, and therefore agreed to relinquish the license and not to reapply for such licensure.

    
    

16. Section 475.25(1)(e), Florida Statutes, provides:

    
    

    1. The commission may deny an application for licensure, certification, registration, or permit, or renewal thereof; may place a licensee, certified appraiser, registrant, or

       permittee on probation; may suspend a license, certification, registration, or permit for a period not exceeding 10 years; may revoke a license, certification, registration, or permit; may impose an administrative fine not to exceed

       $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, certified appraiser, registrant, permittee, or applicant:

       
       

       (e) Has violated any of the provisions of

       this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.

       
       

17. The evidence fails to establish that the Respondent violated any provision of Chapter 475 or any order or rule made or issued under Chapters 475 or 455. The voluntary relinquishment of licensure as a nursing home administrator does not constitute a violation of said statutes.

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 taking no action against the licensure of Edward Grant Markley as a real estate broker.

DONE and ENTERED this 28th day of August, 1991, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1991.

ENDNOTES

1/ "Commission" is the Florida Real Estate Commission. Section 475.01(1)(a), Florida Statutes.

APPENDIX CASE NO. 91-2814

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.

Respondent

The Respondent's proposed findings of fact are listed in paragraph 2 of his proposed recommended order and are accepted as modified in the Recommended Order except as follows:

2.i. Rejected. There is no evidence that the Real Estate Commission did not pursue the disclosed information.

2.k. Rejected, immaterial.

COPIES FURNISHED:

Darlene F. Keller, Director Division of Real Estate

Department of Professional Regulation Division of Real Estate

Hurston North Tower

400 W. Robinson Street

P.O. Box 1900

Orlando, Florida 32802

Jack McRay General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Steven W. Johnson, Esq.

Department of Professional Regulation Division of Real Estate

Hurston North Tower

400 W. Robinson Street Orlando, Florida 32801-1772

Edward Grant Markley 6945 103rd Street

Jacksonville, Florida 32210

NOTICE OF RIGHT TO SUBMIT EXCEPTION

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

Docket for Case No: 91-002814

Orders for Case No: 91-002814