STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3326

)

GABOR A. BANFI, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Delray Beach, Florida on August 11, 1992 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCE

For the Petitioner: James H. Gillis, Esquire

DPR - Division of Real Estate Suite N-308, Hurston Bldg.

1400 W. Robinson Street Orlando, FL 32801-1772

For the Respondent: Gabor A. Banfi, pro se

FMT Holding Co.

The Prudential Florida Realty

160 S. 6th Avenue Delray Beach, FL 33483

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether the Respondent's license as a real estate broker in Florida should be disciplined because of the matters set out in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated April 23, 1992, the Department of Professional Regulation, (Department), on behalf of the Florida Real Estate Commission, (Commission), seeks to discipline Respondent's license as a real estate broker in Florida because he continued to do business as a broker during the period his license was suspended, in violation of Section 475.25(1)(a), Florida Statutes.

On or about May 9, 1992, the Respondent elected to request a formal hearing on the allegations and by letter dated May 29, 1992, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

On June 18, 1992, after both parties had responded to the Initial Order filed herein, the undersigned set the matter for hearing in Delray Beach on August 11, 1992 at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of the Respondent, Gabor

1. Banfi, and introduced Petitioner's Exhibits 1 - 8. Respondent testified in his own behalf but presented no documentary evidence at hearing. A letter from Respondent and one from his supervisor at the time alleged in the Administrative Complaint, copies of both of which were furnished to counsel for the Petitioner, were received by mail subsequent to the hearing. Neither party presented other witnesses. At the request of Petitioner's counsel, and with the concurrence of the Respondent, the undersigned officially recognized pertinent portions of Chapters 120, 455 and 475, Florida Statutes.

   
   

   No transcript was furnished. Petitioner submitted Proposed Findings of Fact in a Proposed Recommendation. Those proposed Findings have been ruled upon in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times pertinent to the issues herein, the Florida Real Estate Commission was the state agency responsible for the regulation of the real estate profession and the licensing of real estate professionals in Florida. The Respondent, Gabor A. Banfi, was licensed as a real estate broker in this state and has held a real estate license since 1981.

      
      

   2. In April, 1990, a claimant sued Banfi Realty, Inc., located at 807 NE 8th Street, Delray Beach, and owned by the Respondent, for allegedly concealing defects in a property he had sold. The claimant secured Final Judgement against Banfi Realty in August, 1990, amended in September, 1990 as to amount only. In November, 1990, the claimant sued Respondent indiovidually. Before that suit was judicially resolved, in January, 1991, Respondent and the claimant entered into a stipulation whereby Respondent would pay a lesser amount than was called for in either the suit against him or in the judgement against his company. Thereafter, in May, 1991, the claimant also got a judgement against the Respondent, and, after Respondent had paid 3 monthly payments of $25.00 each called for under the terms of the stipulation, on August 1, 1991, the claimant notified the Commission of a possible recovery fund claim. She asserted that her diligent search and inquiry had failed to locate any assets of Mr. Banfi to satisfy the final judgement.

      
      

   3. By Final Order dated October 16, 1991, the Commission paid the claimant

      $866.25 as the amount due from Respondent, and, coincidentally therewith, suspended Respondent's license as a broker until such time as he reimbursed the fund in full the amount paid the claimant. The certificate of service on this Final Order reflects that a copy was sent by US Mail to the Respondent at his Banfi Realty, Inc. address, 807 NE 8th Street, Delray Beach, on October 21, 1991.

      
      

   4. The evidence shows, however, that in April, 1990, approximately 18 months prior to the entry of the Commissions Final Order suspending his license, Respondent closed Banfi Realty, Inc. and went to work with Prudential Florida Realty in July, 1990. At that time, Respondent signed a request to register the Prudential Florida Realty as his employer and, to the best of his knowledge, the management of that firm was to forward this form to the Commission. Respondent believed this was done. However, he received neither confirmation of the change nor notice it had been denied. This did not disturb him, however, since his

      understanding was that no acknowledgment was sent out. He had renewed his license in April, 1990, and was not due to again renew until April, 1992.

      
      

   5. Petitioner failed to present any evidence to indicate whether Respondent's change of address was ever received by the Commission. The documentation in his licensure file kept at the Commission reveals that in February, 1992, Geraldine Spinella, Vice President of the Prudential office where Respondent went to work, wrote to the Commission and enclosed what purported to be a copy of the form 400.5 sent in on or about July 2, 1990, reflecting The Prudential Florida Realty, 160 SE 6th Avenue, Delray Beach, as his new employer. No evidence in rebuttal was submitted by the Department.

      
      

   6. Respondent unequivocally denied having received any notice of the Fund payment from the Commission. It is noted that approximately 30 days after Respondent signed the form 400.5 in July, 1990, The Prudential Florida Realty changed its name to FMT Holding Ltd., t/a The Prudential Florida Realty, and a second form 400.5, reflecting Respondent's new business address was sent in.

      
      

   7. In February, 1992, Respondent learned from an associate that the then most recent Commission newsletter reflected the Final Order regarding the Fund pay out and his resultant license suspension. On February 12, 1992, Respondent sent in his check to reimburse the Fund in full for its pay out. The accompanying letter reflected Respondent's home address of 2001 SW 15th Avenue in Boynton Beach. Nonetheless, the Department's letter of acknowledgment dated February 26, 1992 was sent to the invalid Banfi Realty, Inc. address.

      
      

   8. At the same time he sent in his repayment, Respondent had Prudential send in another request for employee registration change, (Form 400.5), which included a copy of the prior form sent in previously. (See FOF #6, supra.) Thereafter, Respondent's license was reinstated and renewed for 2 years on April 1, 1992.

      
      

   9. Respondent admits that during the period his license was suspended, he continued to operate and do business as a broker. He claims not to have known of the suspension, however, and asserts in support of his claim that he had been elected President of the Delray Beach Board of Realtors and consciously would have done nothing to jeopardize his ability to serve in that position or to jeopardize his ability to earn his living in the real estate profession. In late July, 1992, in response to an inquiry by Prudential, Respondent was advised that his address change had been entered on the Commission records.

      
      

      CONCLUSIONS OF LAW

      
      

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

       
       

   11. Petitioner has alleged in its Administrative Complaint that Respondent operated as a broker without having a current license as a broker in violation of Section 475.25(1)(a), Florida Statutes, which authorizes the Commission to discipline the license of a license holder who commits certain prohibited misconduct.

   12. Section 475.42(1)(a), Florida Statutes, states:

       
       

       No person shall operate as a broker or salesperson without being the holder of a valid and current active license therefor.

       
       

   13. Petitioner has the burden to establish, by clear and convincing evidence, that Respondent committed the offense alleged. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   14. The evidence of record clearly establishes, and Respondent frankly admits, that, as alleged in the Administrative Complaint, he did work as a broker for Prudential Florida Realty for a time during which his broker's license had been suspended. The evidence clearly demonstrates his license was suspended automatically when the Commission's Fund paid out money to a former client of his in reimbursement for misconduct established in judicial decree and unpaid by him. Respondent does not deny that.

       w

   15. He denies, however, that he was unaware that the Fund had made the payment resulting in the suspension of his license because he was not notified of that fact by the Commission at any time up until February, 1992, when he was advised by a colleague who had seen the notification of that action in a Commission newsletter. He was aware of the suit filed against his former company and against himself, however, and he had been engaged in settlement negotiations with the claimant regarding that suit. Armed with that knowledge, he should have taken more than routine precautions to insure his address was on file correctly with the Commission and not have relied of what he felt to be standard procedure. In short, he should have checked to make sure he had done all he could to avoid missing any pertinent communications from the commission. Such attention to detail can be expected of one dealing with other people's property as do real estate brokers.

       
       

   16. The evidence establishes that when he closed out his prior agency, he requested his new agency employer to notify the Commission of his new and current address. The evidence seems to establish that Prudential sent in the required form 400.5 to do so. Had the change been made, Respondent would have been advised of the payment, could have and, he asserts, would have made restitution to the Fund, and forestalled the implementation of the suspension. At the very least, the suspension could have been terminated sooner. Nonetheless, as of February, 1992, even after Respondent sent the Commission reimbursement for the Fund payment and gave his new home address in Boynton Beach, the Commission still sent communications to him at the old Banfi Realty address which had been changed, (and noticed), in April, 1990, some 18 months previously.

       
       

   17. Petitioner has not presented any evidence to refute Respondent's claims regarding the failure to change his address on its records. Consequently, it is concluded that the change was not made, though noticed, and it is this failure of the Commission to change its records, and it's continuing mailings to the old, outdated address for the Respondent which while not causing, certainly compounded and lengthened the time during which he practiced without a valid license. While he was in technical violation of the terms of the statute, the extent of the violation was as much the result of the Commission's failure to notify him of the suspension as it was of Respondent. As a result, any further disciplinary action would be excessive.

   18. In that regard, in his post hearing submittal, Respondent requests that the undersigned reduce the period of the suspension of his license which was effected upon the Fund's payment of reimbursement to his former client and which extended until his repayment to the fund. He claims that if that period of suspension is upheld, he will, perforce, be required to repay all commissions earned during the suspension period.

       
       

   19. Such action as is requested by Respondent is not within the authority of Hearing Officers of the Division of Administrative Hearings. The sole issue before this tribunal is whether Respondent's existing broker's license should be disciplined because, during the period of that prior suspension, he operated as a broker without a valid and current active license. The undersigned has no authority to set aside a suspension which was effected by operation of law when his license was originally suspended. Any recourse he might seek for correction of that situation, if appropriate, would be in another forum.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered concluding that Respondent had operated as a real estate broker in Florida without a valid and current active license therefor, but assessing no further penalty because of the mitigating circumstances shown to exist regarding notice to him of the existence of the suspension.

RECOMMENDED this 31 day of August, 1992, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 31st day of August, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3326

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. - 3. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted but noted that the service was made to Respondent's former address, a change from which

   had previously been noticed to the Commission.

3. Accepted and incorporated herein.

4. Accepted and incorporated herein.

5. & 9. Accepted and incorporated herein.

Copies furnished:

James H. Gillis, Esquire

DPR - Division of Real Estate Suite N-308, Hurston Building 1400 W. Robinson Street Orlando, Florida 32801-1772

Gabor A. Banfi

FMT Holding Company, Ltd.

The Prudential Florida Realty

160 South 6th Avenue

Delray Beach, Florida 33483

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Darlene F. Keller Division Director Division of Real Estate

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

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 92-003326

Orders for Case No: 92-003326