STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA DEPARTMENT OF BUSINESS ) AND PROFESSIONAL REGULATION, ) DIVISION OF REAL ESTATE, )
)
Petitioner, )
)
vs. ) CASE NO. 93-0261
)
JAY B. MEITCHIK, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on September 30, 1993, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Steven W. Johnson, Esquire
Senior Attorney
Department of Professional Regulation, Division of Real Estate
Legal Section, Suite N308 Hurston Building, North Tower
400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
For Respondent: Jay B. Meitchik, pro se
2001 West Sample Road No. 318 Pompano Beach, Florida 33064
STATEMENT OF THE ISSUES
Whether Respondent committed the violations alleged in the Administrative Complaint?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On December 16, 1992, the Department of Business and Professional Regulation (formerly the Department of Professional Regulation and hereinafter referred to as the "Department") issued a one-count Administrative Complaint against Respondent, a licensed real estate salesperson, charging him with "fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes."
Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On January 21, 1993, the Department referred the matter to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Respondent had requested.
Five witnesses testified at the final hearing held in this matter on September 30, 1993: 1/ Ed Gruskin, an investigator with the Department; Michael Glusman; William Landman; Steven Ruttenberg; and Respondent. In addition to the testimony of these five witnesses, a total of eight exhibits (Petitioner's Exhibits 1 through 4 and Respondent's Exhibits 1 through 4) were offered and received into evidence.
At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties that they had the right to file post-hearing submittals and established a deadline, October 20, 1993, for the filing of such submittals. On October 18, 1993, the Department and Respondent timely filed separate post-hearing submittals. The proposed findings of fact
set forth in the parties' post-hearing submittals have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
The Department is a state government licensing and regulatory agency.
Respondent is now, and has been since December 28, 1989, a licensed real estate salesperson in the State of Florida.
He holds license number 0552966.
From the time he received his license until April of 1991, Respondent was employed as a salesperson by National Real Estate Corporation (hereinafter referred to as "National").
During this period of time, William Landman was also employed as a salesperson by National and Steven Ruttenberg was National's owner and chief executive officer.
National is no longer in existence. It was voluntarily dissolved in 1992.
Ruttenberg now owns NFC Realty, Inc. (hereinafter referred to as "NFC").
Before leaving the employ of National, Respondent was involved in a real estate transaction for which he and National were due a commission.
Only half ($3,500.00) of the total commission ($7,000.00) had been paid at the time Respondent left the employ of National.
Sometime after his departure, while he was employed as a real estate salesperson by his current employer, Spectrum Realty, Inc. (hereinafter referred to as "Spectrum"), Respondent telephoned Michael Glusman to inquire about the unpaid balance of the commission (hereinafter referred to simply as the "commission"). Glusman represented the entity responsible for paying the commission.
During their telephone conversation, Respondent told Glusman that he was now employed by Spectrum and no longer associated with National. Glusman, in turn, advised that he would need to have a letter from National authorizing him to pay the commission to Respondent.
Following his telephone conversation with Glusman, Respondent spoke with William Landman about the commission.
Landman was, at the time, as he still is today, NFC's qualifying broker and Steven Ruttenberg's business partner.
Respondent told Landman that he would make the necessary arrangements to secure payment of the commission. Landman did not express any objection to Respondent taking such initiative.
On or about May 22, 1992, Respondent drafted, and then typed on a sheet of paper with National's letterhead that he had in his possession, the following letter (hereinafter referred to as the "May 22 letter") to Glusman which purported to be from Ruttenberg:
May 22, 1992 MICHAEL GLUSMAN
Realty Investors, Inc.
3111 Stirling Road, Suite C-302 Ft. Laud. FL 33312
Dear Michael:
With regard to the placement of a customer in WEST BOCA SQUARE, National Real Estate Corp. realizing that Mr. Jay Meitchik of Spectrum Realty, Inc. being the procuring cause will waive its right to the balance of the commission due.
Thank you,
Steve Ruttenberg, Pres.
Respondent signed Ruttenberg's name on the May 22 letter and then mailed the signed letter to Glusman.
Respondent did not have, nor did he have reason to believe that he had, permission to sign and send such a letter to Glusman on Ruttenberg's behalf.
Glusman received the May 22 letter. After looking at it, he forwarded it to Steven Levin. Levin had "bought out" Glusman and, in so doing, had assumed responsibility for payment of the commission.
On or about May 27, 1992, Levin spoke with Landman about the commission and the May 22 letter that Glusman had received concerning the matter.
Following his discussion with Levin, Landman told Ruttenberg about the May 22 letter.
That same day, Landman and Ruttenberg were faxed a copy of the letter.
In early June of 1992, Levin paid the commission, not to Respondent, but to Ruttenberg, who had made known that the May 22 letter was sent without his knowledge and permission and that it did not accurately reflect his position with respect to Respondent's entitlement to the full amount of the commission.
Shortly thereafter, Ruttenberg, accompanied by Landman, went to Respondent's office and personally delivered to Respondent his share of the commission. While they were there, they unsuccessfully tried to obtain information from Respondent concerning testimony he was going to give on behalf of two former National employees who had filed a lawsuit against Ruttenberg. 2/ Ruttenberg and Landman also discussed with Respondent the May 22 letter that Respondent had sent to Glusman regarding the commission.
Although Ruttenberg and Landman had discussed the possibility of filing a complaint with the Department a short time after learning about the May
22 letter, it was not until after Respondent had given a deposition in the aforementioned civil action that such a complaint was actually filed. 3/
Following its receipt of the complaint, the Department commenced an investigation of the matter.
The investigation led to the issuance of the instant Administrative Complaint.
Respondent has not been the subject of any other administrative complaints issued by the Department.
CONCLUSIONS OF LAW
The Florida Real Estate Commission (hereinafter referred to as the "Commission") is statutorily empowered to take disciplinary action against a State of Florida-licensed salesperson based upon any of the grounds enumerated in Section 475.25(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: license denial; license revocation; license suspension for a period not exceeding ten years; imposition of an administrative fine not to exceed $1,000 for each count or separate offense; issuance of a reprimand; and placement of the licensee on probation. Section 475.25(1), Fla. Stat.
Where the disciplinary action sought is the revocation or suspension of the salesperson's license, the proof of guilt must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or 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).
Where the discipline does not involve the loss of licensure, the salesperson's guilt need be established by only a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).
Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in administrative complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
Furthermore, in determining whether Section 475.25(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).
The Administrative Complaint issued in the instant case charges that, in drafting the May 22 letter, signing Ruttenberg's name on the typed letter and then sending the signed letter to Glusman without Ruttenberg's knowledge and permission, Respondent committed a violation of Section 475.25(1)(b), Florida Statutes, which authorizes the Commission to discipline a licensed salesperson who "[h]as been guilty of fraud, misrepresentation, 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." 4/
The evidence clearly and convincingly establishes that Respondent violated Section 475.25(1)(b), Florida Statutes, as alleged in the Administrative Complaint.
In determining what disciplinary action should be taken against Respondent for having committed this violation, it is necessary to consult Rule 21V-24.001, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Commission. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).
Subsection (3) of Rule 21V-24.001, Florida Administrative Code, provides that the normal range of penalties for violations of Section 475.25(1)(b), Florida Statutes, is "[u]p to 5 years suspension or revocation."
Subsection (4)(a) of Rule 21V-24.001, Florida Administrative Code, provides that the Commission may impose a penalty outside the normal range where there are mitigating or aggravating circumstances.
The mitigating or aggravating circumstances that may warrant such a deviation are described in subsection (4)(b) of Rule 21V-24.001, Florida Administrative Code, as follows:
Aggravating or mitigating circumstances may include, but are not limited to, the following:
The severity of the offense.
The degree of harm to the consumer or public.
The number of counts in the Administrative Complaint.
The number of times the offenses previously have been committed by the licensee.
The disciplinary history of the licensee.
The status of the licensee at the time the offense was committed.
The degree of financial hardship incurred by a licensee as a result of the imposition
of a fine or suspension of the licensee.
Violation of the provision of Chapter 475, Florida Statutes, where in a letter of guidance as provided in Section 455.225(3), Florida Statutes, previously has been issued to the license.
Having considered the facts of the instant case in light of the provisions of Rule 21V-24.001, Florida Administrative Code, set forth above, the Hearing Officer concludes that the Commission should discipline Respondent for having committed the violation of Section 475.25(1)(b), Florida Statutes, alleged in the Administrative Complaint by suspending his real estate salesperson license for a period of six months and requiring him to pay an administrative fine in the amount of $1,000.00 payable within 30 days of the entry of the final order.
Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Florida Real Estate Commission enter a final order finding Respondent guilty of the violation alleged in the Administrative Complaint, suspending his real estate salesperson's license for a period of six months, and fining him in the amount of $1,000.00 payable within 30 days of the date of the entry of the final order.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1993.
STUART M. LERNER
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 3rd day of November, 1993.
ENDNOTES
1/ The case was twice continued to allow the parties additional time to effectuate a settlement of the instant controversy. The parties entered into two separate Settlement Stipulations, but both Settlement Stipulations were rejected by the Florida Real Estate Commission.
2/ These two former National employees, like Respondent, are now employed by Spectrum.
3/ Following this meeting, Respondent wrote a letter to the FBI in which he made the following remarks, among others, regarding the meeting:
During this meeting, it is my belief that Mr. Landman purposely denied ever giving me permission to collect this money as a way of getting me to buckle under and give them the
information and answers to questions that Mr. Ruttenberg posed to me earlier, because he further threatened to call the DPR (Department of Professional Regulation) and report my doings to them and threatened to have my license taken away. In the past, I have collected money for them and myself under similar situations and it was always approved and agreed that I did so. At that point we end[ed] the meeting but not without further threatening comments being made a[bout] the loss of the license as they were leaving the office. Most of this meeting
was also heard by an associate who although not in the meeting was directed by me to stay close to my office to listen to whatever possible.
4/ "It is immaterial to the guilt of the licensee [under this statutory provision] that the victim or intended victim of the misconduct 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." Section 475.25(1)(b), Fla. Stat.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-0261
The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their post-hearing submittals:
The Department's Proposed Findings
Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
First sentence: Accepted as true and incorporated in substance; Second sentence: Accepted as true, but not incorporated because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
3-10. Accepted as true and incorporated in substance. Respondent's Proposed Findings
First and last sentences, and assertion made in remaining sentences that Ruttenberg and Landman "threatened" to file a complaint against Respondent with the Department if he testified against them in the civil action: Rejected because they are contrary to the greater weight of the evidence; Remainder of proposed finding: Accepted as true and incorporated in substance.
First sentence: Accepted as true and incorporated in substance; Second sentence: Rejected because, even if true, it would have no bearing on the outcome of the instant case.
To the extent that this proposed finding states that "the writing of the letter" was "with the permission of the parties involved," it has been rejected because it is contrary to the greater weight of the evidence; To the extent that this proposed finding states that "the writing of the letter" was "an ill advised thing to do," it has been accepted as true and incorporated in substance; Remainder of proposed finding: Rejected as a finding of fact because it is more in the nature of an offer of settlement on Respondent's part.
COPIES FURNISHED:
Steven W. Johnson, Esquire Senior Attorney
Department of Business and Professional Regulation, Division of Real Estate
Legal Section, Suite N 308 Hurston Building, North Tower
400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Jay B. Meitchik
2001 West Sample Road #318 Pompano Beach, Florida 33064
Darlene F. Keller, Division Director Division of Real Estate
400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Jack McRay, Esquire General Counsel
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 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 of time 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. 92-83247
DOAH NO. 93-0261
JAY B. MEITCHIK,
Respondent
/
FINAL ORDER
On February 15, 1994, the Florida Real Estate Commission heard this case to issue a Final Order.
Hearing Officer Stuart M. Lerner of the Division of Administrative Hearings presided over a formal hearing on September 30, 1993. On November 3, 1993, he
issued a Recommended Order, a copy of which is attached here to as Exhibit A and made a part hereof.
The Respondent filed Exceptions to the Recommended Order. A copy of these Exceptions is attached hereto as Exhibit B and made a part hereof.
The Petitioner filed a Motion to Reject Exceptions to Recommended Order. A copy of this Motion is attached hereto as Exhibit C and made a part hereof.
After completely reviewing the record and being otherwise fully advised, the Commission rejects the Respondent's Exceptions to the Hearing Officer's Recommended Order and adopts the Petitioner's Motion to Reject the Exceptions. Accordingly, the Commission adopts the Hearing Officer's Findings of Fact and Conclusions of Law.
As to the Hearing Officer's Recommended Penalty, the Commission finds it necessary to increase this penalty, based on the record. The Commission cites specifically to the transcript, on Page 60, Line 23, through Page 61, Line 2, as competent and substantial evidence that the Respondent's admission indicated the need for education.
The Florida Real Estate Commission therefore ORDERS that the Respondent pay a $1000 administrative fine within 30 days of the filing date of this Order.
The Commission further Orders that the license of Jay B. Meitchik be suspended for a period of six (6) months. At the conclusion of the period of suspension, the Respondent is directed to contact the Records Section of the Division of Real Estate at Post Office Box 1900, Orlando, Florida 32802, or
(407) 423-6060, to secure the proper forms for reinstatement of the suspended license.
Concurrent with the 6-month suspension, the Respondent shall be placed on probation for a period of one (1) year, subject to the following terms and conditions:
The licensee shall notify the Division of Real Estate of any changes in address or employment.
The licensee shall not violate any provisions of Chapter 475, Florida Statutes, or Rules adopted by the Commission.
The licensee shall not be convicted or found guilty of a crime in any jurisdiction.
The licensee shall enroll in and satisfactorily complete a 45-hour, post licensure education course for salespersons within one (1) year of the filing date of this Order. These course hours are in addition to any other education required to maintain a valid and current license.
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 15th day of February 1994 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. Certified Mail to Jay B. Meitchik, 18201 Clearbrook Circle, Boca Raton, Florida 33498; and by Hand Delivery to Steven Johnson, Esquire, DBPR, Post Office Box 1900, Orlando, Florida 32801, this 4th day of March, 1994.
Brandon L. Moore Deputy Agency Clerk
| Issue Date | Proceedings |
|---|---|
| Mar. 23, 1994 | Final Order filed. |
| Jan. 18, 1994 | Transcript filed. |
| Nov. 16, 1993 | Letter to Parties of Record from SML sent out (Re: Exceptions to Recommended Order) |
| Nov. 15, 1993 | (Respondent) Exceptions to Recommended Order filed. |
| Nov. 03, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held September 30,1993. |
| Oct. 18, 1993 | (Petitioner) Proposed Recommended Order filed. |
| Oct. 18, 1993 | (Respondent) Proposed Recommended Order filed. |
| Sep. 30, 1993 | CASE STATUS: Hearing Held. |
| Sep. 27, 1993 | Notice of filing Petitioner`s Admissions; Petitioner`s First Request for Admissions filed. |
| Sep. 13, 1993 | Second Notice of Hearing sent out. (hearing set for 09/30/93;9:30AM;Ft Lauderdale) |
| Sep. 03, 1993 | (Petitioner) Notice of Filing Petitioner`s Admissions filed. |
| Aug. 26, 1993 | (Petitioner) Motion to Reset Hearing Date filed. |
| Jul. 14, 1993 | Order Granting Continuance and Placing Case in Abeyance sent out. (Parties to file status report by 9/1/93) |
| Jul. 09, 1993 | (Petitioner) Motion to Continue and Hold Case in Abeyance filed. |
| Apr. 02, 1993 | Notice of Hearing sent out. (hearing set for 7-15-93; 10:00am; Fort Lauderdale) |
| Mar. 25, 1993 | (Petitioner) Status Report; Request for New Hearing Date filed. |
| Mar. 17, 1993 | Order of Abeyance sent out. (Parties to file status report by 3-31-93) |
| Mar. 10, 1993 | (Petitioner) Motion to Continue and Hold Cse in Abeyance filed. |
| Feb. 16, 1993 | Notice of Hearing sent out. (hearing set for 4-8-93; 10:00am; Fort Lauderdale) |
| Feb. 08, 1993 | Response to Initial Order filed. (From Jay B. Meitchik) |
| Feb. 08, 1993 | (Petitioner) Unilateral Response to Initial Order filed. |
| Jan. 27, 1993 | Initial Order issued. |
| Jan. 21, 1993 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 15, 1994 | Agency Final Order | |
| Nov. 03, 1993 | Recommended Order | Salesperson who sent letter purporting to be from former employer w/o former employer's permission guilty of viol warranting 6 mo. sus & $11,000 fine. |
