STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner, )

)

vs. ) CASE No. 91-2887

)

JAMES E. WILLIS t/a )

AMBEST REALTY, )

)

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 case on December 19, 1991, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Florida Department of Professional Regulation

Division of Real Estate

400 West Robinson Street Orlando, Florida 32801-1772

For Respondent: James E. Willis, pro se

Post Office Box 12811

St. Petersburg, Florida 33733-2811 STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

In an Administrative Complaint dated December 6, 1990, the Petitioner, Department of Professional Regulation, Division of Real Estate (the Department) charged Respondent, James E. Willis t/a AmBest Realty (Willis), a licensed real estate broker with two violations of Chapter 475, Florida Statutes. More specifically, Respondent is charged with having failed to maintain an office and sign at the location registered with the Florida Real Estate Commission and having failed to preserve and make available to the Department all escrow trust account records.

The Respondent disputed the allegations of fact set forth in the Administrative Complaint, and timely requested a formal administrative hearing. The case was referred to the Division of Administrative Hearings on May 7, 1991, and was promptly scheduled for hearing by Hearing Officer James E. Bradwell. At

the request of the parties, the case was rescheduled from July 10, 1991, to December 18, 1991. The case was reassigned to Hearing Officer Veronica E. Donnelly on December 17, 1991, in order to minimize travel expenses for this proceeding. The case was rescheduled to December 19, 1991, and was heard on that date. During hearing, the Department identified six exhibits and presented one witness. Petitioner's Exhibit 4 was rejected, but all the remaining exhibits were admitted into evidence. Respondent Willis presented three exhibits and testified in his own behalf. All exhibits offered by Respondent, except Respondent's Exhibit 2, were admitted into evidence. At the close of the proceedings Respondent was given the opportunity to file additional exhibits within a ten-day period. Respondent did not submit the additional exhibits by January 10, 1992, the day this Recommended Order was prepared.

The transcript of the proceeding was filed January 9, 1992. The parties waived the opportunity to submit proposed findings of fact to expedite the filing of the Recommended Order.

FINDINGS OF FACT

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

   
   

2. Respondent's real estate broker license number 0325307 was active in Florida between October 1985 and November 1987. During this period, the business address registered at the Department for AmBest Realty was: 333-31st Street North #24, St. Petersburg, Florida 33713. Respondent was the qualifying broker for this real estate firm.

   
   

3. The real estate office at the above-mentioned address was officially closed by Respondent in November 1987. At this particular time, there had been a decrease in real estate sales throughout the state. Respondent changed careers and became a long haul trucker in order to provide for his family under the then prevailing real estate market conditions.

   
   

4. Post Office Box 12811, St. Petersburg, Florida 33733, was acquired by Respondent in November 1987 so that he could continue to receive communications regarding his former real estate practice, if necessary. His current profession as a long haul trucker frequently required his absence from the state for days at a time. The use of the post office box allowed him to review all correspondence regarding AmBest Realty whenever he returned to St. Petersburg, Florida from his trucking route.

   
   

5. Respondent did not surrender or account for his license to the Real Estate Commission when he closed or moved his real estate business to his home in November 1987. By statute, Respondent was required to do so within 10 days of the address change or office closure. Notification to the Board should have been done by Respondent on a form provided by the Real Estate Commission for that purpose.

   
   

6. Respondent's license ceased to be in force when he closed the real estate office at 333-31st Street North #24, St. Petersburg, Florida.

   
   

7. In March 1988, Respondent attempted to allow his broker license to automatically revert to inactive status, pursuant to Section 475.182(3), Florida Statutes [1987]. Although this decision ignored the previous deactivation of the license, it corroborates Respondent's testimony that the office closed in November 1987. When Respondent attempted to place the license in an inactive

   status in March 1988, it was his intention to reactivate his license within a four-year period if the real estate market recovered from its slump. Respondent notified the Department of his new mailing address at the post office box prior to his attempted placement of the license in an inactive status.

   
   

8. Respondent's failure to notify the Board of the change in his business address caused the Board to improperly rely on that business address as the proper location for office inspections and the Department's review of escrow/trust accounts.

   
   

9. In August of 1990, an investigator with the Department unsuccessfully attempted to contact the Respondent at the registered business address at 333- 31st Street North #24, St. Petersburg, Florida. The real estate office and a real estate sign were no longer at the location.

   
   

10. Respondent was later contacted by the investigator through the home address previously listed on his license that had been replaced in March 1988 by the post office box number.

    
    

11. The investigator requested Respondent make his escrow trust account records and supporting documentation available for inspection.

    
    

12. Respondent advised that he was unable to comply with the request as his original escrow trust account records had been stolen in a garage burglary in late November 1987.

    
    

13. No effort was made by Respondent to reconstruct or to aid in the reconstruction of the missing records.

    
    

14. No additional mitigating factors were presented at hearing other than the break-in to the location where Respondent stored his original escrow trust account records.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. In a proceeding to discipline a professional license, the Department 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). Ramsey v. Department of Professional Regulation, 574 So.2d 291 (Fla. 5th DCA 1991); Munch

    v. Department of Professional Regulation, Division of Real Estate, (1st DCA Case No. 90-3238; opinion filed January 2, 1992).

    
    

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

    
    

    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.

    
    

18. Proof adduced at hearing established Respondent Willis failed to notify the Real Estate Commission of his change in business address when he closed his

    office at 333-31st Street North, #24, St. Petersburg, Florida, in November 1987. As a matter of law, his broker license ceased to be in force when this change was made. Section 475.23 [1987] provides:

    
    

    A license shall cease to be in force whenever a broker changes his business address... . In ... such case, the old license shall be surrendered or accounted for and a replacement shall be issued upon request therefor on a form provided by the commission... .

    
    

19. Respondent's license was not reactivated through the replacement process. Therefore, it ceased to be effective in November 1987 as a matter of law.

    
    

20. Four months after the license ceased to be effective, Respondent reaffirmed that he did not want the license to be active at this stage of his career. He did not renew the license at the end of the biennium prescribed by the Department, as required by Section 475.183, Florida Statutes. This would have caused the license to become inactivated if it had not already ceased to be in force in November 1987.

    
    

21. Count I of the Administrative Complaint charges Respondent with having failed to maintain an office and sign at the location registered with the Department, in violation of Rules 21V-10.022 and 21V-10.024, Florida Administrative Code, which violates Section 475.25(1)(e), Florida Statutes.

    
    

22. Section 475.25(1)(e) is penal in nature. As such, it must be construed strictly, in favor of the one against whom the penalty would be imposed. See Munch, supra; Holmberg v. Department of Natural Resources, 503 So.2d 944 (Fla. 1st DCA 1987). Under the circumstances presented, Respondent should not be required to maintain an office and a sign at the closed business location. To require him to do so would result in a great disservice to the public, who would expect a licensed broker on the premises engaged in a real estate practice.

    Once Respondent's license ceased to be in force, the need for a sign at the registered location was extinguished as well.

    
    

23. Accordingly, the Respondent is not guilty of violations of Rules 21V-

    10.022 and 21V-10.024, Florida Administrative Code, as charged in Count I. These rules relate only to active brokers with active licenses.

    
    

24. Count II charges Respondent with having failed to preserve and make available to the Department all escrow trust account records with supporting documentation during regular business hours, in violation of Rule 21V-10.012(1), Florida Administrative Code, which violates Section 475.25(1)(e), Florida Statutes. While the November 1987 burglary might have expanded the time frame for the reconstruction of the records for a reasonable period of time, the crime does not negate Respondent's duty to provide the Department with these records, which he admits existed and were used in his real estate practice. Respondent has made no effort to reconstruct or to aid the Department in its reconstruction of the records, or to demonstrate that such reconstruction is not practicable. As a result, Respondent is guilty of the allegations set forth in Count II of the Administrative Complaint.

    
    

25. Rule 21V-24.001(3)(f), Florida Administrative Code, provides the disciplinary guidelines for a violation of Section 475.25(1)(e), 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:

* * *

475.25(1)(e) - Up to 8 years suspension or revocation. Although the mitigating circumstances presented by the Respondent were considered by the Hearing Officer pursuant to Rule 21V-24.001(4), Florida Administrative Code, the violation appears to be one in which the standard guidelines should be used in imposing discipline upon the license.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That Respondent, James E. Willis t/a AmBest Realty be found not guilty of Count I of the Administrative Complaint.

   
   

2. That Respondent be found guilty of violation of Section 475.25(1)(e), Florida Statutes, as set forth in Count II, based upon his failure to preserve and make available to the Department all escrow trust account records with supporting documentation, as required by Rule 21V-14.012(1), Florida Administrative Code.

   
   

3. That the privilege of Respondent Willis to reinstate his real estate broker's license be suspended for three years, subject to a reduction in the suspension term if the escrow trust account records are reconstructed and presented to the Board.

DONE and ENTERED this 14th day of January, 1992, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 14th day of January, 1992.

COPIES FURNISHED:

JAMES H GILLIS ESQUIRE

DPR - DIVISION OF REAL ESTATE

400 W ROBINSON ST ORLANDO FL 32801 1772

JAMES E WILLIS, AMBEST REALTY PO BOX 12811

ST PETERSBURG FL 33733 2811

DARLENE F KELLER/EXECUTIVE DIRECTOR DPR - DIVISION OF REAL ESTATE

400 W ROBINSON ST ORLANDO FL 32801 1772

JACK McRAY ESQ/GENERAL COUNSEL DEPT OF PROFESSIONAL REGULATION 1940 N MONROE ST

TALLAHASSEE FL 32399 0792

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-2887

)

JAMES E. FILMS )

t/a AMBEST REALTY, )

)

Respondent. )

)

AMENDED 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 case on December 19, 1991 in St. Petersburg, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation Division of Real Estate

400 West Robinson Street Orlando, FL 32801-1772

For Respondent: James W. Willis, pro se

Post Office Box 12811

St. Petersburg, FL 33733-2811 STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

In an Administrative Complaint dated December 6, 1990, the Petitioner, Department of Professional Regulation, Division of Real Estate (the Department) charged Respondent, James E. Willis, t/a AmBest Realty (Willis), a licensed real estate broker, with two violations of Chapter 475, Florida Statutes. More specifically, Respondent is charged with having failed to maintain an office and sign at the location registered with the Florida Real Estate Commission and having failed to preserve and make available to the Department all escrow trust account records.

The Respondent disputed the allegations of fact set forth in the Administrative Complaint and timely requested a formal administrative hearing. The case was referred to the Division of Administrative Hearings on May 7, 1991, and was promptly scheduled for hearing by Hearing Officer James E. Bradwell. At the request of the parties, the case was reassigned to Hearing Officer Veronica

1. Donnelly on December 17, 1991, in order to minimize travel expenses for this proceeding. The case was rescheduled to December 19, 1991, and was heard on that date.

   
   

   During hearing, the Department identified six exhibits and presented one witness. Petitioner's Exhibit 4 was rejected, but all the remaining exhibits were admitted into evidence. Respondent Willis presented three exhibits and testified in his own behalf. All exhibits offered by Respondent, except Respondent's Exhibit 2, were admitted into evidence. At the close of the proceedings, Respondent was given the opportunity to file additional exhibits within a ten-day period. After the filing of the Recommended Order, it was discussed that Respondent did timely submit one additional exhibit. The exhibit was located within the Division and is submitted with this amended Recommended Order as Respondent's Post-Hearing Exhibit A.

   
   

   The transcript of the proceeding was filed January 9, 1992. The parties waived the opportunity to submit proposed findings of fact to expedite the filing of the Recommended Order.

   
   

   FINDINGS OF FACT

   
   

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

   2. Respondent's real estate broker license number 0325307 was active in Florida between October 1985 and November 1987. During this period, the business address registered at the Department for AmBest-Realty was: 333-31st Street North #24, St. Petersburg, Florida 33713. Respondent was the qualifying broker for this real estate firm.

      
      

   3. The real estate office at the above-mentioned address was officially closed by Respondent in November 1987. At this particular time, there had been a decrease in real estate sales throughout the state. Respondent changed careers and became a long haul trucker in order to provide for his family under the then prevailing real estate market conditions.

      
      

   4. Post Office Box 12811, St. Petersburg, Florida 33733, was acquired by Respondent on December 4, 1987, so that he could continue to receive communications regarding his former real estate practice, if necessary. His current profession as a long haul trucker frequently required his absence from the state for days at a time. The use of the post office box allowed him to review all correspondence regarding AmBest Realty whenever he returned to St. Petersburg, Florida, from his trucking route.

      
      

   5. Respondent did not surrender or account for his license to the Real Estate Commission when he closed or moved his real estate business to his home in November 1987. By statute, Respondent was required to do so within 10 days of the address change or office closure. Notification to the Board should have been done by Respondent on a form provided by the Real Estate Commission for that purpose.

      
      

   6. Respondent's license ceased to be in force when he closed the real estate office at 333-31st Street North #24, St. Petersburg, Florida.

      
      

   7. In March 1988, Respondent attempted to allow his broker license to automatically revert to inactive status, pursuant to Section 475.182(3), Florida Statutes (1987). Although this decision ignored the previous deactivation of the license, it corroborates Respondent's testimony that the office closed in November 1987. When Respondent attempted to place the license in an inactive status in March 1988, it was his intention to reactive his license within a four year period if the real estate market recovered from its slump. Respondent notified the Department of his new mailing address at the post office box prior to his attempted placement of the license in an inactive status.

      
      

   8. Respondent's failure to notify the Board of the change in his business address caused the Board to improperly rely on that business address as the proper location for office inspections and the Department's review of escrow/trust accounts.

      
      

   9. In August of 1990, an investigator with the Department unsuccessfully attempted to contact the Respondent at the registered business address at 333- 31st Street North #24, St. Petersburg, Florida. The real estate office and a real estate sign were no longer at the location.

      
      

   10. Respondent was later contacted by the investigator through the home address previously listed on his license that had been replaced in March 1988 by the post office box number.

       
       

   11. The investigator requested Respondent make his escrow trust account records and supporting documentation available for inspection.

   12. Respondent advised that he was unable to comply with the request as his original escrow trust account records had been stolen in a garage burglary in late November 1987.

       
       

   13. No effort was made by Respondent to reconstruct or to aid in the reconstruction of the missing records.

       
       

   14. No additional mitigating factors were presented at hearing other than the break-in to the location where Respondent stored his original escrow trust account records. Testimony regarding how settlement negotiations in this case may have stalled Respondent's attempts to recreate records were not considered by the Hearing Officer as evidence regarding settlement negotiations is generally not admissible except in settlement enforcement proceedings.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   16. In a proceeding to discipline a professional license, the Department 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); Ramsey v. Department of Professional Regulation, 574 So.2d 291 (Fla. 5th DCA 1991); Munch

       v. Department of Professional Regulation, Division of Real Estate, (1st DCA Case No. 90-3238, opinion filed January 2, 1992).

       
       

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

       
       

       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.

       
       

   18. Proof adduced at hearing established Respondent Willis failed to notify the Real Estate Commission of his change in business address when he closed his office at 333-31st Street North #24, St. Petersburg, Florida, in November 1987. As a matter of law, his broker license ceased to be in force when this change was made. Section 475.23 (1987) provides:

       
       

       A license shall cease to be in force whenever a broker changes his business address . .

       In . . . such case, the old license shall be surrendered or accounted for and a replacement shall be issued upon request there for on a form provided by the commission

       
       

       Respondent's license was not reactivated through the replacement process. Therefore, it ceased to be effective in November 1987 as a matter of law.

       
       

   19. Four months after the license ceased to be effective, Respondent reaffirmed that he did not want the license to be active at this stage of his

       career. He did not renew the license at the end of the biennium prescribed by the Department, as required by Section 475.183, Florida Statutes. This would have caused the license to become inactivated if it had not already ceased to be in force in November 1987.

       
       

   20. Count I of the Administrative Complaint charges Respondent with having failed to maintain an office and sign at the location registered with the Department, in violation of Rules 21V-10.022 and 21V-10.024, Florida Administrative Code, which violates Section 475.25(1)(e), Florida Statutes.

       
       

   21. Section 475.25(1)(e) is penal in nature. As such, it must be construed strictly, in favor of the one against whom the penalty would be imposed. See Munch, supra; and Holmberg v. Department of Natural Resources,

       503 So.2d 944 (Fla. 1st DCA - 1987). Under the circumstances presented, Respondent should not be required to maintain an office and a sign at the closed business location. To require him to do so would result in a great disservice to the public, who would expect a licensed broker on the premises engaged in a real estate practice. Once Respondent's license ceased to be in force, the need for a sign at the registered location was extinguished as well. Accordingly, the Respondent is not guilty of violations of Rules 21V-10.022 and 21V-10.024, Florida Administrative Code, as charged in Count I. These rules relate only to active brokers with active licenses.

       
       

   22. Count II charges Respondent with having failed to preserve and make available to the Department all escrow trust account records with supporting documentation during regular business hours, in violation of Rule 21V-10.012(1), Florida Administrative Code, which violates Section 475.25(1)(e), Florida Statutes. While the November 1987 burglary might have expanded the time frame for the reconstruction of the records for a reasonable period of time, the crime does not negate Respondent's duty to provide the Department with these records, which he admits existed and were used in his real estate practice. Respondent has made no effort to reconstruct or to aid the Department in its reconstruction of the records, or to demonstrate that such reconstruction is not practicable. As a result, Respondent is guilty of the allegations set forth in Count II of the Administrative Complaint.

       
       

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

       
       

       The minimum penalty for all below

       listed sections is a reprimand and/or fine1 up to $1,000.00 per count . . . The maximum penalties are as listed;

       475.25(1)(e) - Up to 8 years suspension or revocation.

       
       

   24. Although the mitigating circumstances presented by the Respondent were considered by the Hearing Officer pursuant to Rule 21V-24.001(4), Florida Administrative Code, the violation appears to be one in which the standard guidelines should be used in imposing discipline upon the license.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That Respondent, James E. Willis t/a AmBest Realty, be found not guilty of Count I of the Administrative Complaint.

   
   

2. That Respondent be found guilty of violation of Section 475.25(1)(e), Florida Statutes, as set forth in Count II, based upon his failure to preserve and make available to the Department all escrow trust account records with supporting documentation, as required by Rule 21V-14.012(1), Florida Administrative Code.

   
   

3. That the privilege of Respondent Willis to reinstate his real estate broker's license be suspended for three years, subject to a reduction in the suspension term if the escrow trust account records are reconstructed and presented to the Board.

DONE and ENTERED this 21st day of January, 1992, in Tallahassee, Florida.

- VERONICA E. DONNELLY

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 21st day of January, 1992.

COPIES FURNISHED:

James H. Gillis, Esquire

Department of Professional Regulation Division of Real Estate

400 West Robinson Street Orlando, FL 32801-1772

James E. Willis

Post Office Box 12811

St. Petersburg, FL 33733-2811

Darlene F. Keller, Executive Director Division of Real Estate

400 West Robinson Street Orlando, FL 32801-1772

Jack McRay General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE

Petitioner

vs. CASE NO. 01-64087

DOAH NO. 91-2887

JAMES E. WILLIS

Respondent

/

FINAL ORDER

On August 17, 1993, 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 December 19, 1991. On January 21, 1992, she issued a Recommended Order, a copy of which is attached hereto as Exhibit A and made a part hereof.

At a hearing on March 17, 1992, the Commission requested the case be remanded to the Hearing Officer for a Recommended Penalty that was within the guidelines of Chapter 475, Florida Statutes. The Petitioner filed a Request for Corrected Recommended Order with the Division of Administrative Hearings. This request was denied.

After completely reviewing the record and being otherwise fully advised, the Commission adopts the Hearing Officer's Recommended Order as to the Findings of Fact and Conclusions of Law.

However, the Commission finds the Hearing Officer's Recommended Penalty to be outside of Chapter 475, Florida Statutes, and of Rule 61J2-24.001, Florida Administrative Code. Therefore, in an effort to administer and interpret the Commission's rules and regulations and also to follow the Hearing Officer's recommendation, the Florida Real Estate Commission ORDERS that Respondent James

E. Willis be found guilty of a violation of s.475.25(1)(e), Florida Statutes, as set forth in Count II of the Administrative Complaint, and that the license of James Willis be suspended for a period of three (3) years.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Business and 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 Business and 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 17th day of August 1993 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: James E. Willis, Post Office Box 12811, St. Petersburg, Florida 33733- 2811; to Hearing Officer Veronica Donnelly, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and to James Gillis, Esquire DBPR, Post Office Box 1900, Orlando, Florida 32802, this 2nd day of September, 1993.

DIRECTOR

MD:JM:pep

Docket for Case No: 91-002887

Orders for Case No: 91-002887