STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 94-4163

)

DAVID WILLIAM TRICKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings, by its duly-designated Hearing Officer, Daniel M. Kilbride, on October 19, 1994, in Orlando, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Senior Attorney

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

For Respondent: David W. Tricker (pro se)

555 Estates Place Longwood, Florida

STATEMENT OF THE ISSUES

Whether the Respondent's real estate broker's license should be disciplined based upon the allegations that Respondent was guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction in violation of Section 475.25(1)(b) Florida Statutes.

PRELIMINARY STATEMENT

On June 28, 1994, the Petitioner filed a two count Administrative Complaint against the Respondent, alleging violations of Chapter 475, Florida Statutes.

Respondent filed an Election of Rights, dated July 18, 1994 and requested a formal hearing. This matter was referred to the Division of Administrative Hearings and was set for hearing.

At the formal administrative hearing, the Petitioner voluntarily dismissed Count I of the Complaint and paragraphs 5 through 11, and proceeded on Count II. Petitioner presented the testimony of five witnesses, Heather Shimmin, Peter Shimmin, Fred Seli, Stephen Neveleff, and Hal Klein. Petitioner offered a total of three (3) exhibits which were received in evidence. The Respondent cross- examined each of Petitioner's witnesses, testified on his own behalf and offered one (1) exhibit in evidence. Official Recognition is taken of Section 20.165(2)(i), and Chapters 120, 455 and 475, Florida Statutes.

The Petitioner filed a proposed recommended order with the Division on November 8, 1994. On November 15, 1994, Stephen T. Ball, Esquire, of Maguire, Voorhis & Well, P.A., filed a notice of appearance on behalf of Respondent and filed a proposed recommended order in his behalf. In addition, Respondent submitted his own response to Petitioner's proposed recommended order. 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 David William Tricker is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0270690 in accordance with Chapter 475, Florida Statutes. The last license issued to the Respondent was as a broker in care of Florida Country Clubs International, Inc., 555 Estates Place, Longwood, Florida, 32779, a Florida corporation.

   
   

3. Respondent became the broker for Henro, Inc. (hereinafter Henro) and Henro Realty, Inc. early in 1993 and served until approximately October 21, 1993, when Respondent submitted his letter of resignation to the Florida Real Estate Commission ("FREC"). The Henro companies were owned by a British couple, David and Marion Moth, who also did business in the United Kingdom as Henro Land Leisure Limited.

   
   

4. On or about July 8, 1993, Henro negotiated a verbal contract with Gilman Pool Services to maintain and provide pool cleaning services at homes managed by Henro on behalf of its owners.

   
   

5. The contract was followed up with a letter dated the same date from Henro and signed by Marion Moth, as vice president. The fee for the service was

   $65.00 per month for each pool cleaned. Payment terms were to be on 30-day invoice.

   
   

6. Heather and Peter Shimmin operated the pool service, and relied upon Henro to pay them for their services.

7. There was no clear and convincing evidence that the Shimmins relied upon Respondent to pay them for their services, or that Respondent was aware of this contract between Gilman Pool Services and Henro.

   
   

8. The July 1993 bill to Henro was $5,227.40. On September 1, 1993, Henro issued check #2123 in the amount of $5,227.40 to Gilman Pool Services. This check did not clear and was later made good by Henro by payment in cash to Gilman Pool Service.

   
   

9. The August 1993 bill was in the amount of $6,352.36 was not paid. The September, 1993 bill, which amounted to $5,887.00 and the October, 1993 partial bill in the amount of $1,595.00 remains due, owing and unpaid.

   
   

10. On October 31, 1993, Henro went out of business. At the time Henro closed, Henro owed Gilman Pool Services $13,061.76, in unpaid maintenance and pool cleaning services.

    
    

11. Gilman Pool Services made no demand upon Respondent for past due invoices.

    
    

12. The testimony of the witness, Hal Klein, was not credible.

    
    

    CONCLUSIONS OF LAW

    
    

13. 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.

    
    

14. Revocation of license proceedings are penal in nature; State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973) and must be construed strictly in favor of the one against whom the penalty would be imposed. Munch v. Department of Professional Regulation, Division of Real Estate, 592 So.2d 1136(Fla. 1st DCA 1992); Fleischman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983). The standard 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 Heifetz 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). Petitioner has the burden of proving by clear and convincing evidence each of the allegations in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

15. Subsection 475.25(1)(b), Florida Statutes (1993) as it pertains to the alleged facts in this matter reads, 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; and may issue a reprimand, ... if it finds that the licensee ....

       (b) Has been guilty of fraud, misrepresentation, concealment, false promises false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction . . .

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.

    . . .

    
    

17. In order to find a real estate broker has violated this statute, an intentional act must be proven before a violation can be found. Munch v. Department of Professional Regulation, Division of Real Estate,592 So.2d 1136 (Fla. 1st DCA 1992).

    
    

18. The evidence does not establish by clear and convincing evidence that the Respondent committed fraud, dishonest dealing or was culpably negligent in his dealings with Gilman Pools. In fact, the reliable evidence failed to show that Respondent had any dealings with Gilman Pools, or that he had knowledge of any verbal or written contract between them and Henro. Neither did the evidence show that Respondent acted as an officer or agent of Henro, other than the fact that he was its broker during the relevant time.

    
    

19. Certainly, Gilman Pools has been injured. They entered into a contract to provide pool cleaning services with Henro. They performed those services for which they are entitled to compensation. However, in this regard, they dealt directly with officers of the corporation and sought compensation from them and not the Respondent. They have recourse against the corporation and perhaps its officers for breach of contract. see: Florida Real Estate Commission v. McGregor, 336 So.2d 1156 (Fla. 1976).

    
    

20. There was no credible evidence to show that Respondent received money from the corporation which was intended to pay Gilman Pool Service and that he converted it to his own use, as alleged.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Florida Real Estate Commission issue and file a Final Order finding the Respondent not guilty of violating Subsections 475.25(1)(b), Florida Statutes, and DISMISSING the Administrative Complaint.

DONE and ENTERED this 1st day of December, 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 1st day of December, 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, 2, 3(in part), 4(in part), 5(in part), 6, 7, 8, 9, 10(in part).

Rejected as against the greater weight of credible evidence: paragraphs 3(in part), 4(in part), 5(in part),10(in part), 11, 12.

Respondent's proposed findings of fact.

Accepted in substance: paragraphs 1, 2, 3(in part), 4, 5, 6, 7, 8, 9, 10,

11, 12(in part).

Rejected as against the greater weight of evidence: paragraph 3(in part). Rejected as argument: paragraph 12.

COPIES FURNISHED:

Jack McRay, Esquire Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

Darlene F. Keller Division Director

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Steven W. Johnson, Esquire Senior Attorney

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

David W. Tricker (pro se)

555 Estates Place Longwood, Florida

Stephen T. Ball, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Plaza

Post Office Box 633

Orlando, Florida 32802-0633

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: 94-004163

Orders for Case No: 94-004163