STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 92-6308

)

BRUCE D. ROBERTSON and )

IDC PROPERTIES, INC. )

)

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 January 28, 1993, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation Division of Real Estate

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

For Respondent: Bruce D. Robertson, pro se

IDC Properties, Inc.

17980 San Carlos Boulevard

Fort Myers Beach, Florida 33931 STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On August 26, 1992, the Petitioner filed an Administrative Complaint alleging that the Respondent had failed to pay to a licensed salesperson commission due on the sale of property, that the salesperson filed suit and subsequently obtained final judgement against the Petitioner which remains unsatisfied. The Respondent disputed the allegations and requested a hearing. The request was forwarded to DOAH and was scheduled for hearing.

At the hearing, Petitioner presented the testimony of one witness and had eight exhibits admitted into evidence. The Respondent testified on his own behalf and had one exhibit admitted into evidence.

The Petitioner filed a proposed recommended order which was considered during the preparation of this Recommended Order. The proposed findings of fact are ruled upon in the Appendix which is hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, Respondent Bruce D. Robertson ("Respondent") was a licensed real estate broker, license #0343680, operating as a president and qualifying broker for IDC Properties ("IDC")

   
   

2. At all times material to this case, IDC was a corporation registered as a real estate broker, license #0234614, located at 17980 San Carlos Boulevard, Fort Myers Beach, Florida.

   
   

3. By agreement dated January 16, 1990, the Respondent agreed to pay to salesperson Randy Thibault a commission of $10,362.50 upon the closing of the sale of property at "Old Pelican Bay, Inc.," to Paula E. Brown, hereinafter referred to as the "Brown transaction".

   
   

4. On July 5, 1990, the Brown transaction closed. The Respondent received the commission funds related to the sale of the property.

   
   

5. The Respondent subsequently issued a check in the amount of $10,362.50 payable to Mr. Thibault. When Mr. Thibault attempted to negotiate the check, he was informed that the Respondent had issued a stop payment order on the check.

   
   

6. Mr. Thibault thereafter filed a civil complaint against the Respondent in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida Case No. 90-5851-CA. The matter was heard in a bench trial.

   
   

7. On October 3, 1991, Mr. Thibault obtained a Final Judgement in the amount of $11, 817.42 against IDC for the sum owed plus interest.

   
   

8. On October 28, 1991, Mr. Thibault obtained a Final Judgement in the amount of $14,551.31 against IDC for the sum owed plus interest, attorney's fees and costs.

   
   

9. On November 4, 1991, the Respondent filed a Notice of Appeal in the matter in the Second District Court of Appeal but subsequently abandoned the appeal.

   
   

10. At hearing, the Respondent asserted that Mr. Thibault received his commission share at the closing. The Respondent presented no credible documentary evidence to support the claim.

    
    

11. The Respondent also asserted that Mr. Thibault misled the Respondent as to Mr. Thibault's role in the sale of other unrelated property and that the Respondent intends to take legal action against him. The Respondent presented no credible documentary evidence to support the claim.

    
    

12. The Respondent admitted that the Final Judgement obtained by Mr. Thibault remains unsatisfied and stated that stated that he will not pay the judgement pending resolution of the unrelated matter alleged above.

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Pursuant to Section 475.25, Florida Statutes, the Petitioner has responsibility for disciplinary action taken against licensed real estate brokers.

    
    

15. License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Administrative Complaint by clear and convincing evidence. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977), Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met.

    
    

16. 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.

    
    

17. Section 475.25(1), Florida Statutes, provides, in relevant part, that the license of a Florida real estate broker may be disciplined by the Petitioner when the Respondent:

    
    

    (b) Has been guilty of...breach of trust in any business transaction in this state. It

    is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public.

    * * *

    1. 1. Has failed to account or deliver to any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money,...including a share of a real estate commission,...which has come into his hands and which is not his property or which he is not in law or equity entitled to retain under the circumstances.

       * * *

    2. 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. In this case, the evidence establishes that the Respondent is guilty of a breech of trust in his dealings with Mr. Thibault and that he has failed to deliver to Mr. Thibault his a share of the Brown transaction real estate commission.

    
    

19. Guidelines for disciplinary action are stated at Chapter 21V-24, Florida Administrative Code. Except as otherwise provided, the minimum penalty which may be imposed for each violation is a reprimand, or a fine up to $1,000 per count, or both. The recommended penalty imposed for a violation of Section 475.25(1)(b), Florida Statutes, is up to five years suspension or revocation. The recommended penalty imposed for a violation of Section 475.25(1)(d), Florida Statutes, is up to five years suspension.

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 determining Bruce D. Robertson and IDC Properties, Inc., guilty of the violations set forth herein and revoking the licenses identified herein.

DONE and ENTERED this 19th day of March, 1993, 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 19th day of March, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6308

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. The Respondent did not submit a proposed recommended order.

COPIES FURNISHED:

Darlene F. Keller, Director Division of Real Estate

Department of Professional Regulation Hurston North Tower

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Steven W. Johnson, Esquire Division of Real Estate

Department of Professional Regulation Hurston North Tower

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

Mr. Bruce D. Robertson IDC Properties, Inc.

17980 San Carlos Boulevard Fort Myers, Florida 33931

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 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: 92-006308

Orders for Case No: 92-006308