STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1898

) ROBERT JOSEPH GUMBREWICZ, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on June 8, 1994, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street, #N-308 Orlando, Florida 32801

For Respondent: Did not appear and was not represented.

STATEMENT OF ISSUES

Whether the Respondent is 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 contrary to Section 475.25(1)(b), Florida Statutes, and Whether the Respondent is guilty of failure to account or deliver real estate brokerage books and records and other personal property in violation of Section 475.25(1)(d), Florida Statutes.

PRELIMINARY STATEMENT

The Department filed an Administrative Complaint against the Respondent alleging that he violated Chapter 475, Florida Statutes, as stated above. The Respondent timely requested a formal hearing denying the allegations in the Administrative Complaint, and the Department forwarded the case to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57, Florida Statutes.

The case was noticed for hearing on June 8, 1994. Notice was given to the Respondent at his address of record by first class mail and was not returned as undeliverable. The hearing was held as noticed, and the Respondent did not attend.

At the hearing, Mr. Johnson entered an appearance for the Department. The Department introduced into evidence admissions filed by the Respondent (Exhibits 1, 2, 3, and 4) and the testimony of Tamara Byrd, Phyllis Sellers, and Roberta Kaufman.

The Department did not advise the Hearing Officer of its intent to order a transcript, and the date for filing a proposed order is well past. This Recommended Order is, therefore, entered without the aid of a transcript; and neither party has presented proposed findings.

FINDINGS OF FACT

1. The Petitioner is a state agency charged by statute with the regulation of real estate salespersons and brokers.

   
   

2. The Respondent, Robert Joseph Gumbrewicz, at all times relevant to this complaint, held real estate salesperson license number 0576053.

   
   

3. On or about March 31, 1992, the Respondent bought Buy Owner Realty of Jacksonville, Inc. (Buy Owner) from James Weiss, a licensed real estate broker. Phyllis Sellers was employed by Respondent as the corporation's broker of record.

   
   

4. Phyllis Sellers notified U.S. Title that she had become broker of record for Buy Owner.

   
   

5. Buy Owner had incurred debts while owned by Weiss. A debt owed by Buy Owner to a copier company was not paid, and the company obtained a judgment against Buy Owner. The company then executed on its judgment and froze, on April 28, 1993, the operating account of Buy Owner, Account Number 5084900-134, at First Bank of Jacksonville.

   
   

6. On April 27, 1993, the Respondent issued a check in the amount of $350 on Buy Owner's Account Number 5084900-134 at First Bank of Jacksonville to Phyllis Sellers as partial payment of a commission which she had already earned. Buy Owner had already earned its commission in this transaction and had already transferred its money from its trust account to its operating account.

   
   

7. On April 27, 1993, Phyllis Sellers deposited the check from Respondent on Buy Owner's Account 5084900-134 into her bank account. On April 29, 1993, the check was presented to First Bank of Jacksonville for payment. This check was not paid because the account had been frozen pursuant to court order.

   
   

8. There was no evidence presented that the Respondent knew, at the time he issued the check, that the account was going to be frozen. There were funds sufficient to pay the check in the account when it was issued.

   
   

9. Immediately following receipt of the check, Sellers went on vacation. Upon her return, she found that the office of Buy Owner had been closed, and the records of the business were not present on the former business premises. Sellers attempted to contact the Respondent, but he would not return her calls.

10. Hearsay evidence was received that the Respondent had removed the records of the office and was maintaining them in his garage at his home; however, there was no direct evidence of what happened to the records. The Respondent, in a response to admissions filed by Petitioner, denied taking the records.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

12. The Department charges the Respondent with violation of Section 475.25(1)(b), Florida Statutes, because he issued a check which was not honored because the account upon which it was drawn was frozen pursuant to a court order. Section 475.25(1)(b), supra., prohibits fraud, misrepresentation, etc. The facts reveal that the account had sufficient funds to pay the check when it was drawn, and the Respondent had no knowledge that the judgment creditor was going to garnish the account. There is no violation of the statute.

    
    

13. The Department charges that the Respondent violated Section 475.25(1)(d)1, Florida Statutes, because he retained the records of the corporate broker. Section 475.25(1)(d)1, Florida Statutes, provides that it is a violation to have:

    
    

    . . . 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 a money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value, including a share of a real estate commission if a civil judgment relating to the practice of the licensee's profession has been obtained against the licensee and said judgement has not been satisfied in accordance with the terms of the judgment within a reasonable time, or any secret or illegal profit or any divisible share of portion thereof, 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.

    
    

14. There is no specific mention of business records in the enumeration of items which the licensee must deliver in the cited statute. The rules of statutory construction provide that the enumeration of specific items acts as an exclusion of other items. However, if one deems these records "personal property", there was no time agreed upon for their delivery; there is no law setting the time for their delivery; and the broker never made demand for their return.

15. Further, there is no direct evidence that the Respondent took the records. The business closed while the broker of record was out of town on vacation. When she returned, the owner had been forced to close the doors of the business by the seizure of the operating funds of the business. The other employees were told by the Respondent that he was closing the business and that they should come and pick up their personal things. When Sellers returned from her vacation, she had the landlord open up the premises; and upon accessing the office, the records were gone. The records could have been taken by anyone with access to the office.

    
    

16. The Respondent did not violate Section 475.25(1)(d)1, Florida Statutes, by failing to give the records to the broker of record.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That the Department of Business and Professional Regulation enter a final order which dismisses the Administrative Comoplaint against the Respondent.

DONE and ENTERED this 29th day of July, 1994, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 29th day of July, 1994.

COPIES FURNISHED:

Steven W. Johnson, Esquire DPR - Division of Real Estate

400 West Robinson Street, #N-308 Orlando, FL 32801

Robert J. Gumbrewicz, Esquire 808 Elmwood Street

Orange Park, FL 32073

Darlene F. Keller, Division Director DPR - Division of Real Estate

400 West Robinson Street, #N-308 Orlando, FL 32801

Jack McRay, 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: 94-001898

Orders for Case No: 94-001898