STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF BUSINESS ) AND PROFESSIONAL REGULATION, ) DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7150

)

HERMAN J. VIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard in Orlando, Florida, before the Division of Administrative Hearings, by its duly-designated Hearing Officer, Daniel M. Kilbride, on March 18, 1994.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Senior Attorney

Florida Department of Business and Professional R egulation Division of Real Estate

Legal Section - Suite N 308 Hurston Building North Tower

400 West Robinson Street Orlando, Florida 32801-1772

For Respondent: Herman J. Vis (pro se)

654 Madrid Drive

Kissimmee, Florida 34758 STATEMENT OF THE ISSUES

Whether the Respondent's real estate broker license should be disciplined based upon alleged violations of Sections 475.25(1)(b) and 475.455(2), Florida Statutes.

PRELIMINARY STATEMENT

On November 19, 1993, the Petitioner filed an Administrative Complaint against the Respondent, alleging two violations of Chapter 475, Florida Statutes. Respondent filed an Election of Rights, dated December 9, 1993 and requested a formal hearing. This matter was referred to the Division of Administrative Hearing and was set for hearing.

At the formal administrative hearing, the Petitioner presented the testimony of the Respondent, Investigator John D. Allen, Development Specialist Mary Tiffany Schwartz, Assistant General Counsel Robin L. Suarez, and Bureau Chief James E. Mullins. Petitioner offered a total of five (5) exhibits which were received in evidence.

The Respondent cross-examined each of Petitioner's witnesses, testified on his own behalf and offered seven (7) exhibits in evidence. Official Recognition was taken of Section 20.165 and Chapters 120, 455 and 475, Florida Statutes.

The Petitioner filed a proposed recommended order with the Division on March 25, 1994. Respondent filed a letter explaining or disputing the testimony of the various witnesses who testified at the hearing. In addition, Respondent submitted fourteen letters of reference. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order, except where such proposals were not supported by the evidence or were irrelevant, immaterial, cumulative, or subordinate. Specific rulings on the parties' proposed findings of fact are contained in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

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 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. Respondent Herman J. Vis is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0475507 in accordance with Chapter 475, Florida Statutes.

   
   

3. The last license issued was a broker percentVestige International Services Corp., 654 Madrid Drive, Poinciana, Kissimmee, Florida 34758, a dissolved Florida corporation.

   
   

4. On April 6, 1992, the Division of Land Sales filed a Notice to Show Cause directed to Respondent for violations of Chapter 498, Florida Statutes.

   
   

5. Respondent admitted the violations and requested an informal hearing, pursuant to Section 120.57(2), Florida Statutes.

   
   

6. Following an informal hearing, on July 30, 1992, the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes entered a Final Order directed to the Respondent which found Respondent had violated Sections 498.023(1) and (2), Florida Statutes and imposed a fine of

   $2,500 and administrative costs of $1,500 for a total of $4,000 to be paid by him within 45 days from the date of the order.

   
   

7. Respondent failed to comply with the Final Order and the Division sought and obtained a Final Judgment in the Second Judicial Circuit of Florida. Following notice and an opportunity to be heard, the Final Judgment, dated September 28, 1993, directed Respondent to comply with the Final Order and pay an additional civil penalty of $1,000.

8. Respondent has a duty imposed by law to pay the civil and administrative fines and costs and has failed to do so.

   
   

9. As of the date of this Order, Respondent has paid neither the $2,500 civil penalty nor the administrative cost of $1,500. The civil judgments in favor of the Petitioner have not been satisfied.

   
   

10. Respondent's explanation of his misunderstanding of the law and his good intentions does not relieve him of his obligation to comply with the Final Order and Final Judgment.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Subsection 120.57(1), and Section 120.60, Florida Statutes.

    
    

12. Revocation of license proceedings are penal in nature. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). The burden of proof required in this matter is that relevant and material findings of fact must be supported by clear and convincing evidence of record. 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).

    
    

13. Petitioner has the burden of proving by clear and convincing evidence the allegations in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. Subsections 475.25(1)(b) and (e), Florida Statutes (1993) as it pertains to the alleged facts in this matter read, 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, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense ... if it finds that the licensee ....

       (b) Has ... violated a duty imposed by

       law ...

       (e) 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. ...

       
       

15. Subsections 475.455(2), Florida Statutes (1993) as it pertains to the alleged facts in this matter read, in pertinent part:

    
    

    (2) If the commission finds that another state agency has ... imposed a penalty against ... a licensee, it shall issue a notice to the licensee to show cause why the commission should take no action, which notice shall provide for a hearing in accordance with Chapter 120, upon request.

16. Relative to the above statutory prohibitions, the Commission's disciplinary guidelines are codified in Rules 61J2-24.001(2) and (3), Florida Administrative Code. These rules provide that the Respondent may be fined up to

    $1,000.00 per count and may have his broker license penalized as follows:

    
    

    . . .

    "(c) 475.25(1)(b) - Up to 5 years

    suspension

    or revocation.

    . . .

    "(f) 475.25(1)(e) - Up to 8 years

    suspension

    or revocation.

    . . .

    (11) 475.455(2) - Up to 6 years

    suspension

    or revocation.

    
    

17. The above rules also provide that when "aggravating or mitigating circumstances" can be demonstrated to the Commission by clear and convincing evidence, the Commission shall be entitled to deviate from the above guidelines in imposing discipline upon a licensee. These circumstances include, inter alia, the severity of the offense, the degree of harm to the consumer or public, and the number of counts in the Administrative Complaint.

    
    

18. The Petitioner presented clear and convincing testimony and evidence that each of the two charges in the Administrative Complaint occurred as alleged, and therefore the Respondent should be found guilty of the charges. Additionally, the public is harmed by Respondent's conduct regarding the sale of unregistered home site lots. The State's requirements to register such parcels of real property cannot be waived by the purchasers.

    
    

19. Respondent's course of conduct is fairly contemplated by the legislature in its enactment of Chapter 498, Florida Statutes. The real estate practice act provides a means of severing the Respondent's professional real estate license in the State of Florida should his conduct in other related professional fields be shown as significantly deficient.

    
    

20. There was little or no mitigation of record concerning Respondent's violations. Respondent provided no character witnesses during the hearing. He attempted to add letters of reference after the record of the hearing was closed.

    
    

21. Respondent showed little understanding of his obligation to determine which laws of Florida applied to his property. Instead, he made only general inquiries to various agencies. Respondent seeks to avoid taking any personal responsibility for his own acts of omission.

    
    

22. Suspension of Respondent's license is an appropriate penalty and is within the Commission's penalty guidelines for one or more of the offenses proven.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED as follows:

1. The Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b) and (e), Florida Statutes, as charged in the Administrative Complaint.

   
   

2. The Final Order should further direct that all of Respondent's real estate licenses, registrations, certificates and permits, be suspended for a period of five (5) years or until such time as Respondent satisfies the judgments in favor of the Florida Department of Business and Professional Regulation, Division of Land Sales, whichever occurs first.

   
   

3. Should Respondent satisfy the said judgments within the time allowed, then Respondent's real estate licenses, registrations, certificates and permits, should thereafter be placed on probation for a period of one (1) year with such terms and conditions as the Commission may deem appropriate and should include the payment of a five hundred dollars ($500) administrative fine to be paid by the Respondent within his probationary period.

   
   

4. Should all said judgments and fines not be satisfied within the above time allowed, then all Respondent's real estate licenses, registrations, certificates and permits shall be, in accord with the Commission's penalty guidelines, permanently revoked.

DONE and ENTERED this 25th day of May, 1994, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 25th day of May, 1994.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's proposed findings of fact.

Accepted in substance: paragraphs 1-7

Respondent's proposals.

Respondent submitted, in letter form, a restatement of the testimony of witnesses or disputation of that testimony. Said comments cannot be ruled on individually, but have been reviewed and considered.

COPIES FURNISHED:

James H. Gillis, Esquire Florida Department of Business

and Professional Regulation Division of Real Estate

Legal Section - Suite N 308 Hurston Building North Tower

400 West Robinson Street Orlando, Florida 32801-1772

Herman J. Vis (pro se) 654 Madrid Drive

Kissimmee, Florida 34758

Darlene F. Keller Division Director

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 that will issue the final order in this case concerning their 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: 93-007150

Orders for Case No: 93-007150