STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF, )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7084

) JOHN A. GEDEON and THE GEDEON ) GROUP, INC., t/a SELLER'S CHOICE ) REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on April 13, 1993 in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Senior Attorney

Florida Department of Professional Regulation, Division of Real Estate

Legal Section - Suite N308 Hurston Building North Tower

400 West Robinson Street Orlando, Florida 32801-1772

For Respondent: John A. Gedeon, pro se

The Gedeon Group, Inc. 9825 San Jose Boulevard

Jacksonville, Florida 32257 STATEMENT OF THE ISSUE

Whether the allegations against John A. Gedeon (Count I) and The Gedeon Group, Inc. (Count II) pursuant to Section 475.25(1)(b) F.S. for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction as alleged in the Administrative Complaint are true and, if so, what discipline should be imposed against Respondents' real estate broker licenses.

PRELIMINARY STATEMENT

At formal hearing, Petitioner had admitted in evidence the following exhibits: Petitioner's Exhibit No. 1 (A certified copy of Respondent Gedeon's Licensure File Printout), Petitioner's Exhibit No. 2 (A certified copy of

Respondent Gedeon Group, Inc.'s Licensure File Printout), Petitioner's Exhibit No. 3 (A copy of Respondents' Admissions), Petitioner's Exhibit No. 4 (A copy of a deposit Receipt and Purchase and Sale Offer from Stephanie Byrer dated March 26, 1992 for $73,900), Petitioner's Exhibit No. 5 (A copy of a copy of a Deposit Receipt and Purchase Sale Offer from Stephanie Byrer dated March 26, 1992, for

$75,500), Petitioner's Exhibit No. 6 (A copy of a copy of a Deposit Receipt and Purchase and Sale Offer from Stephanie Byrer dated March 26, 1992 for $77,000), Petitioner's Exhibit No. 7 (A composite copy of Jennifer Jewels' FAX Transmission Report of March 26, 1992 at 2027 Hours to 904/268-7667 and the FAX Cover Sheet), Petitioner's Exhibit No. 8 (A composite copy of Jennifer Jewels' FAX Transmission Report of March 26, 1992 at 2030 Hours to 904/268-7667), Petitioner's Exhibit No., 9, (A copy of a Deposit Receipt and Purchase and Sale Offer from Annette Y. Ward dated March 27, 1992 for $73,900), Petitioner's Exhibit No. 10 (A copy of Deposition of Lt. John J. O'Leary taken April 9, 1993 in Clearwater, Florida), Petitioner's Exhibit No. 11 (A copy of Lt. John J. O'Leary's acceptance FAX letter of March 27, 1992), Petitioner's Exhibit No. 12 (A copy of Lt. John J. O'Leary's Affidavit made December 18, 1992 in Pinellas County, Florida), and Petitioner's Exhibit No. 13 (A copy of Steven B. Smith's letter of April 8, 1992, requesting a written rejection of Byrer's offers).

Petitioner presented the oral testimony of John A. Gedeon, Arlene (Connie) Morrow, Jennifer Jewels, Steven B. Smith, and Robert Miller. Lt. John J. O'Leary testified by deposition (P-10).

Respondent appeared at the formal hearing and offered in evidence Respondents' Exhibit A (A copy of an unsigned letter dated July 13, 1992 from Jennifer Jewels to the Florida Real Estate Commission), Respondents' Exhibit B (A copy of an ATC telephone log for the dates of 03-26 through 04-24), Respondents' Exhibit C (A copy of a copy of a Deposit Receipt and Purchase and Sale Offer from Stephanie Byrer dated March 26, 1992, for $77,000), Respondents' Composite Exhibit E (A copy of a FAX Cover Sheet page 1, from Jennifer Jewels noted at 20:18 hours March 26, 1992, page 1 of a FAX transmission from Jennifer Jewels noted at 20:26 hours March 26, 1992, and page 1 of a FAX transmission from Jennifer Jewels noted at 20:29 hours March 26, 1992), Respondents' Exhibit F (A copy of an Offer to Purchase dated March 26, 1992 and marked "Rejected by Seller 3/27"), and, Respondents' Exhibit H (A Written Offers Comparison). Each of Respondents' identified exhibits were received in evidence with the exception of Respondents' Exhibit C which, by stipulation of the parties, was substituted by Petitioner's Exhibit No. 6 already in evidence.

Respondent presented the oral testimony of Jerry Sachs, John A. Gedeon, Barbara Gedeon, and Don Quinn.

Section 20.30, and Chapters 120, 455, and 475 F.S. and Rules 21V-10.024 and 21V-10.032 F.A.C. were officially recognized pursuant to Rule 22I-6.020 F.A.C.

After some confusion, a transcript was filed, and all timely-filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.30 F.S., Chapters 120, 455 and 475 F.S., and the rules promulgated pursuant thereto.

2. Respondent John A. Gedeon is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0307833 in accordance with Chapter 475 F.S.

3. The last license issued was as a broker c/o The Gedeon Group, Inc., t/a Sellers Choice Real Estate, 9825 35 San Jose Blvd., Jacksonville, Florida 32257.

   
   

4. The Respondent The Gedeon Group, Inc., t/a Sellers Choice Real Estate, is now and was at all times material hereto a corporation registered as a real estate broker in the State of Florida having been issued license number 0258056 in accordance with Chapter 475 F.S.

   
   

5. The last license issued The Gedeon Group, Inc., was at the address of 9825 35 San Jose Boulevard, Jacksonville, Florida 32257.

   
   

6. At all times material hereto, the Respondent John A. Gedeon was licensed and operating as qualifying broker and officer of Respondent The Gedeon Group, Inc., t/a Sellers Choice Real Estate and more recently as Help-U-Sell of Mandarin.

   
   

7. On March 26, 1992, at approximately 3:30 p.m. Jennifer Jewels, while licensed and operating as a real estate salesperson in the employ of corporate broker Jennifer Jewels Real Estate, Inc., solicited, drafted, and obtained a written offer to purchase certain residential property at 3025 Paddle Creek Drive, Jacksonville, with John J. O'Leary, as seller, and Stephanie Byrer, as purchaser, at a sales price of $73,900.

   
   

8. Jennifer Jewels personally delivered the $73,900 offer, hereinafter referred to as the first or initial Jewels' offer, to Help-U-Sell's agent, Arlene (Connie) Morrow on the premises of the O'Leary residence at approximately 4:30 p.m. Both agents were expecting their respective customers to arrive momentarily to view the house. Each was anxious to make the sale. Ms. Jewels demanded that her initial offer, which was now in a sealed envelope, be presented to Morrow's/Help-U-Sell's client-seller O'Leary immediately and Ms. Morrow refused. Harsh words were exchanged including Ms. Jewels' threat of legal action and a professional disciplinary complaint, which threat greatly flustered and unnerved Ms. Morrow.

   
   

9. There is no clear evidence of whether there was a working telephone on the O'Leary premises at that time nor even whether Ms. Morrow could have reached Lt. O'Leary at that precise moment had a telephone been available, because Lt. O'Leary had been on active duty with the U.S. Coast Guard in Clearwater, Florida since the previous October and Ms. Morrow knew from experience that she had to catch him at either his work or at his Clearwater motel, or leave a message with someone at each location and await his returning her call. In any case, the terms of the initial Jewels' offer, as understood by both agents at that time, was that the offer would remain open until 8:00 p.m. March 26. Accordingly, it was not unreasonable for Ms. Morrow to delay presenting the first Jewels' offer to Lt. O'Leary until she got back to the Help-U-Sell office telephone after showing the house. It is noted that the hard copy exhibit of this document stated, contrary to all oral representations, that 10:00 p.m. March 26 was the cutoff point for Lt. O'Leary to accept or reject it.

   
   

10. At approximately 6:57 p.m. March 26, Ms. Morrow telephoned Lt. O'Leary at his motel from the Help-U-Sell office. She left a message for him to call her back. She was not sure when he returned her call, but when he called back, she explained to him Jennifer Jewels' initial offer. She also told him that another offer would be coming in from her own potential buyer the following day.

    She suggested that he request an extension of time to consider Jewels' initial offer so that he could also simultaneously consider the other potential offer, which might be more advantageous. Ms. Morrow did not FAX Jewels' initial offer to Lt. O'Leary. Lt. O'Leary did not reject Jewels' initial offer, and he did not accept it. He authorized Ms. Morrow to ask for the extension she had suggested.

    
    

11. From this point onwards, the chronology of events becomes both rapid- fire and murky.

    
    

12. Ms. Morrow telephoned Ms. Jewels at her office the evening of March 26, and asked for the extension through March 27 requested by Lt. O'Leary. Ms. Jewels misunderstood and thought that the extension was requested only until 10:00 p.m. on March 26, not through March 27. Ms. Jewels orally granted the extension.

    
    

13. Ms. Jewels also decided that Ms. Morrow was trying to gain an advantage for Ms. Morrow's own potential buyer because Ms. Jewels had made Ms. Morrow aware the O'Leary house had a desirable non-qualifying FHA assumable mortgage loan. Ms. Jewels, in her buyer's presence, struck through the $73,900 and created a second Jewels' offer of $75,500, which was above the full asking price. Ms. Jewels testified she conveyed that second offer orally to Ms. Morrow and FAXED her a copy. Ms. Morrow denies that Jewels did so. Several heated and confusing phone calls ensued.

    
    

14. Ms. Morrow's testimony that she did not ever see a hard copy of any second or third Jewels' offers is found credible and accepted.

    
    

15. Mr. John A. Gedeon, a Respondent herein and the qualifying broker for Respondent The Gedeon Group, Inc., told Ms. Morrow not to talk to Ms. Jewels any more, and Ms. Morrow told this to Ms. Jewels in terms that Ms. Jewels interpreted as meaning Help-U-Sell would not take any more "counteroffers" from Jewels. Ms. Morrow admitted hanging up on Ms. Jewels.

    
    

16. Ms. Morrow's testimony explaining what constitutes "counteroffers" clearly demonstrates that she would have known that Jewels' second and third offers, if they had been made clearly to her, were increased offers but not "counteroffers." Consequently, it is unlikely that Ms. Morrow would ever have used the phrase, "we're not accepting any counteroffers at this time," attributed to her by the complaining witnesses, Jewels and Smith. However, it is also probable that all of the confusion of Ms. Morrow's and Ms. Jewels' several phone conversations occurred because Ms. Jewels wanted her buyer's offer(s) presented to Lt. O'Leary before 10:00 p.m. March 26 and Ms. Morrow genuinely believed she had through March 27 to present the first Jewels' offer.

    
    

17. John A. Gedeon then got on the phone with Mr. Steven B. Smith, who is Ms. Jewels' husband and qualifying broker for her real estate agency. Mr. Gedeon told Mr. Smith that Lt. O'Leary wanted an extension of time to consider the offer (meaning Jewels' first offer of $73,900). Mr. Smith believed they were talking about the second offer of $75,500 and believed Gedeon had received a FAX from Jewels of the second Jewels' offer and that neither of Jewels' first two offers were being presented to Lt. O'Leary by anyone at Help-U-Sell.

    
    

18. However, Gedeon maintained credibly at formal hearing that Mr. Smith told him Jewels Real Estate, Inc. was FAXING him "another" offer but that Smith never told him the amount of this other offer and that Gedeon went to his FAX

    machine in another room and found a cover sheet requiring an answer by 8:40 p.m. and two blank pages. (Respondent's Exhibit E)

    
    

19. Smith and Jewels conferred. They agreed to waive Jewels' cooperating commission and FAXED a third offer of three pages for $77,000 to Help-U-Sell.

    
    

20. Gedeon telephoned Smith back and told him the FAXED pages were blank. Smith began to question either how this could happen or Gedeon's truthfulness. At that point, Gedeon overheard a feminine voice in the background refer to him as a "stupid mother f ." Gedeon, believing the speaker to be Ms. Jewels, lost his temper and told Smith that he did not have to listen to that sort of language, that he was turning off his FAX machine, and that if Jewels Real Estate, Inc. had any further bona fide offers they could deliver them to him, as he would be in his office that night and the Help-U-Sell office would be open all day the next day. Respondent Gedeon then turned off his FAX machine.

    
    

21. Jewels and Smith testified that Petitioner's Exhibits 7 and 8 show they made a FAX transmission of the second $75,500 Jewels' offer that lasted 33 seconds and a FAX transmission of the third Jewels' offer of $77,000 that lasted

    38 seconds. Exhibit P-7 from Jewels' FAX machine actually shows by a cover sheet that three pages were intended to be transmitted, requiring an answer by 8:40 p.m., and a second page printout showing only one page was transmitted during 33 seconds and notes the time of 8:26 p.m. Exhibit P-8 actually shows by a printout from Jewels' FAX machine that only one page was transmitted during 38 seconds and notes the time of 8:29 p.m. Nothing thereon tells the undersigned whether the times noted were beginning or ending times of transmittal. Respondents' Exhibit E corroborates John A. Gedeon's testimony that he received the same cover sheet demand for an answer by 8:40 p.m. and notes time of 8:18 p.m., that he received a blank page labelled "p.1" that notes a time of 8:26 p.m., and that he received another blank page also labelled "p.1" that notes a time of 8:29 p.m. Nothing thereon tells the undersigned whether the times noted were beginning or ending times of transmittal.

    
    

22. Smith in testimony, and Petitioner in its proposed findings of fact, conjectured that Respondent Gedeon switched his FAX machine on and off so as to create the time gaps and blank pages on the foregoing transmission(s) and Respondent's Exhibit E, but this is pure conjecture. There is neither factual nor expert testimony to bolster it. The only evidence that this could have happened is that the Help-U-Sell FAX to and from other entities besides Jewels Real Estate, Inc. worked fine the next day and that the Help-U-Sell FAX machine had an on/off toggle switch. The complainants' theory hangs on the supposed length of each transmission. However, without knowing something about the capabilities of each FAX machine, such as whether or not Exhibits P-7 and P-8 from Jewels FAX machine and R-E from Help-U-Sell's FAX machine uniformly recorded the time that transmission began or uniformly recorded the time that transmission ended or whether or not one machine recorded the start and the other recorded the finish of transmission(s), or that the clocks of each machine were in perfect synchronization, or that Jewels' machine had an "interrupt" function, it may be equally conjectured that either machine malfunctioned or that there was operator error on Jewels Real Estate, Inc.'s end of the transmission(s).

    
    

23. Based upon the evidence as a whole, including Steven B. Smith's testimony that the FAX transmission for the third offer would not go through, it is most likely that the FAX of the three pages of the second offer malfunctioned and Gedeon turned off his machine before the third offer of three pages was transmitted by Mr. Smith, but even that scenario is unproven.

24. Smith, Jewels, and their buyer next drove to the Help-U-Sell office and found it locked. They left a hard copy of Jewels' third offer on the pavement outside the front door. This hard copy of the third offer was a modified copy of the first and second offers. It struck through the two prior purchase price amounts and substituted $77,000. It also struck out Jewels' cooperating commission amount, and, without changing the 10:00 p.m. acceptance deadline on one page, another page carried the written notation that 9:00 p.m. March 26 was the acceptance cut off time. There is insufficient evidence to show they delivered the hard copy of the third Jewels' offer before either expiration time of 9:00 or 10:00 p.m. March 26 written on the hard copy, and it is not credible that it could have been delivered before the 8:40 p.m. deadline written on the portion of the material successfully FAXED to Gedeon.

    
    

25. Respondent Gedeon was inside the Help-U-Sell office at all times material on March 26. He denied ever locking the door or hearing anyone knock.

    
    

26. Help-U-Sell is located in a busy shopping center. No one from Help-U- Sell found the third Jewels' offer on the doorstep the night of March 26 or the next day of March 27.

    
    

27. Approximately 11:22 a.m., March 27, 1992, Morrow solicited, drafted and obtained a written offer to purchase the 3025 Paddle Creek Drive residential property with John O'Leary, as seller, and Annette Y. Ward, as purchaser, at the sales price of $73,900. This offer differed in several ways from Jewels' three offers. Ward's/Help-U-Sell's offer and Jewels' initial offer at the same sales price, which was the only hard copy offer Help-U-Sell had ever received from Jewels, were discussed and compared for Lt. O'Leary by telephone by Help-U- Sell's agents Jerry Sachs and Ms. Morrow. However, the written Ward/Help-U-Sell offer was the only one FAXED to him. Lt. O'Leary accepted the Ward/Help-U-Sell offer because it meant a higher net to him. Lt. O'Leary FAXED one acceptance to Respondents which did not specify clearly which offer he was accepting. This meant more phone calls. Later the same day, Lt. O'Leary "FAXED" his clear acceptance of the Ward/Help-U-Sell offer to the Respondents.

    
    

28. The $73,900 offer by Ward/Help-U-Sell provided a higher net gain to Lt. O'Leary than the first Jewels' offer of $73,900 because Jewels' offer also required O'Leary to leave his washer and dryer and his coffee maker, to provide title insurance, to agree to a later closing date, and to pay a higher commission because of a cooperative broker commission that would be due to Jennifer Jewels in addition to his commission deal with Help-U-Sell. Lt. O'Leary had previously authorized, through Ms. Morrow, payment of such an additional cooperative commission to Ms. Jewels if his house were sold by Ms. Jewels.

    
    

29. Byrer's/Jewels Real Estate Inc.'s second offer in the amount of

$75,500 increased the purchase price but would not have altered any features of the first offer except possibly for the extended cutoff time of 10:00 p.m. March

1. The third Jewels' offer in the amount of $77,000 would not have altered any of the other comparison features except to increase the purchase price and waive Jewels' cooperating commission. The time Jewels put for acceptance on the third offer is subject to several interpretations. See, Findings of Fact 9, 12, 16 and 24, supra.

   
   

   1. Closing the sale as soon as possible, whatever the price, had always been Lt. O'Leary's primary goal.

   2. During most of March 27, Jennifer Jewels repeatedly telephoned Lt. O'Leary telling him he should take the third Jewels offer for $77,000. He gave several versions of whether he knew from Jennifer Jewels of the third Jewels' offer before he orally accepted the Ward/Help-U-Sell offer by telephone or knew of the third Jewels' offer only after orally accepting the Ward/Help-U-Sell offer by telephone and before he FAXED one or more acceptances of their offer to Help-U-Sell. His deposition evidence is only clear to the extent that he never saw the third Jewels offer in writing, that he did not want to go back on his word to accept Help-U-Sell's offer once he had said he would accept it, regardless of what offers or threats Ms. Jewels made, and that before his final FAXED acceptance to Respondent, Lt. O'Leary was aware of at least the amount of the third Jewels' offer.

      
      

   3. The undersigned has made a concentrated effort to reconcile all witnesses' versions of the events of March 26 and 27 so as to accord every witness the benefit of the doubt as to his or her individual credibility or to attribute to each witness only reasonable and minor errors of perception and recollection. In most instances, that has been possible. Where it has not been possible, the undersigned has found facts upon a thorough assessment of credibility based on each witness' candor and demeanor, taking into consideration what each witness has to gain or lose by his or her testimony.

      The undersigned has also weighed both the internal consistency of each witness' version of events and the external credibility and weight of each witness' version of events in comparison to all other witnesses' evidence and the documentary evidence as a whole. It is also noted that all witnesses, but particularly Lt. O'Leary, who testified by deposition, were so confused by times, dates, and chronology of events that any inconsistent or variable prior statements, written or oral, cannot be relied upon to either lend credence or to discredit their sworn testimony. However, it is noted that the credibility of complaining witnesses Jewels and Smith is substantially discredited/diminished upon the testimony of expert questioned document examiner Don Quinn to the effect that the signatures of Byrer (Jewels' buyer) do not match or were rendered by different persons on Jewels' first and third offers, so that the issue of when Ms. Byrer authorized at least the first Jewels' offer, if not all offers, is entirely unclear.

      
      

   4. There was no monetary advantage to either Respondent in not presenting any of Jewels' offers to Lt. O'Leary because their arrangement with him was for a fixed fee commission which was substantially lower than the going rate and would be paid without going up or down, even if an additional cooperating commission were paid to Jennifer Jewels.

      
      

   5. Once Jennifer Jewels waived her cooperating commission, she had no monetary advantage in pursuing this matter, either.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), F.S.

      
      

   7. Revocation of license proceedings are penal in nature. See, State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Petitioner's burden of proof is that relevant and material findings of fact must be supported by clear and convincing evidence of record. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987) and Hal Halfetz v. d/b/a Key Wester Inn v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 475 So.2d 1277 (Fla. 1st DCA, 1985).

   8. Evans Packing Co. v. Department of Agriculture and Consumer Services,

      550 So.2d 112 (Fla. 1st DCA 1989) provides the following definition of the clear and convincing evidence standard:

      
      

      That standard has been described as follows:

      [C]lear and convincing evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact

      the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

      
      

   9. There simply has not been such clear and convincing evidence of Respondent's guilt presented in the instant case.

      
      

   10. Respondents are charged under Sections 475.25(1)(b) F.S., which provides in pertinent parts:

       
       

       1. The commission may . . . suspend a license, certification, registration, or permit for a period not exceeding 10 years; may revoke a license, certification, regist- ration, or permit; may impose an administ- rative fine not to exceed $1,000 for each count or separate offense . . . if it finds that the licensee . . . .

          (b) Has been guilty of fraud, misrepresenta- tion, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state or any other state, nation, or territory; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; . . . It is immaterial to the guilt of the licensee that the victim or intended victim of the mis- conduct 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 . . . .

          
          

   11. The worst interpretation of the facts as found is that principals for both Help-U-Sell and Jennifer Jewels Real Estate, Inc. indulged in some ugly and childish behavior doing no credit to their profession. The best interpretation is that a series of ludicrous misunderstandings occurred. The entire matter

probably could have been resolved by Jewels and Smith hand-delivering the hard copy of their third offer to the Help-U-Sell office when it opened for business March 27, but the discrepancy in times for acceptance on that offer suggests otherwise. It might also have been more aggressive practice for Morrow, Sachs, and Gedeon, as fiduciaries of Lt. O'Leary, to actively solicit the Jewels Real Estate, Inc. principals for a higher hard copy offer once everyone cooled off, but the Respondents' behavior falls far short of fraud or sharp practice.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Department of Professional Regulation, Division of Real Estate enter a final order finding Respondents not guilty on both counts and dismissing the administrative complaint.

RECOMMENDED this 4th day of August, 1993, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 4th day of August, 1993.

APPENDIX TO RECOMMENDED ORDER 92-7084

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-7Accepted

8Accepted except to the degree unnecessary, subordinate or cumulative. Also modified to conform to the record in Findings of Fact 8, and 32. The last sentence is rejected as not proven and as a conclusion of law.

9-14Rejected in Findings of Fact 10-23 and 32 and as not proven upon the respective credibility vel non of the witnesses, and the evidence as a whole. 15Rejected as not proven and as a conclusion of law.

16Accepted in part and rejected in part in Finding of Fact 27 as out of context and chronology, not proven upon the respective credibility of the witnesses and the evidence as a whole.

17-21Covered in Finding of Fact 32. Each discrepancy in Mr. Gedeon's prior statements also have other reasonable explanations within the evidence as a whole or in the manner in which the questions were put to him and those questions which were not put to him. Some material proposed is rejected as mere legal or persuasive argument.

22Accepted in part and rejected in part in Findings of Fact 24-26 as out of context and chronology, not proven upon the respective credibility of the

witnesses (See, Findings of Fact 32-34) and the evidence as a whole. Unnecessary, subordinate, and cumulative material was excluded.

23Covered in Finding of Fact 28-31. Respondent's PFOF:

1-7Accepted as modified to better conform to the record and except to the degree unnecessary, subordinate, or cumulative and except for persuasive or legal argument.

8Covered in Finding of Fact 20. 9Covered in Finding of Fact 25.

10-11Accepted except to the extent unnecessary, subordinate, or cumulative or mere persuasive or legal argument.

12Accepted in part and rejected in part in Findings of Fact 31-34., Unnecessary, subordinate, or cumulative material and mere persuasive or legal argument are rejected for those reasons.

13Accepted that these statements, hearsay and otherwise, were made. Rejected in part as mere persuasive argument on credibility and as unnecessary, subordinate, or cumulative. Rejected in part, as hearsay, not subject to Section 120.58(1)(a) F.S. Credibility is resolved in Findings of Fact 31-34.

14Accepted in Findings of Fact 27 and 31.

15-17Accepted in part and rejected in part as out of context and chronology, not proven upon the respective credibility of the witnesses and the evidence as a whole. Don Quinn's evidence is substantially covered in Finding of Fact 31.

Immaterial proposals have not been utilized.

1-6 Under "Conclusion" are rejected as cumulative or mere persuasive or legal argument.

COPIES FURNISHED:

James H. Gillis, Esquire

Florida Department of Business & Professional Regulation

Division of Real Estate Hurston Building North Tower

400 West Robinson Street Orlando, Florida 32801-1772

John A. Gedeon

The Gedeon Group, Inc. 9825 San Jose Boulevard

Jacksonville, Florida 32257

Darlene F. Keller Division Director Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900

Jack McRay, Esquire General Counsel

Department of Business and 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.

Docket for Case No: 92-007084

Orders for Case No: 92-007084