STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1427

)

RAYMOND J. MCGINN, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida on September 18, 1996, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street, N-308 Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Was not present and was not represented.

STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated November 21, 1995, S. D. Fieldman, for Henry Solares, Director of the Division of Real Estate, on behalf of Richard T. Farrell, Secretary of the Department of Business and Professional Regulation, charged Respondent with violating an order of the Florida Real Estate Commission and with operating as a real estate broker without being the holder of a valid and current license as a broker in Florida, both in violation of Section 475.25(1), Florida Statutes. Respondent requested hearing on the allegations and this hearing ensued. The hearing was scheduled for 1:00 PM on September 18, 1996 in Sarasota.

The morning of the hearing, the Judge was informed that on September 17, 1996 a letter from the Respondent had been received in the Division of

Administrative Hearings in which he indicated he would not attend or participate in the hearing. Nonetheless, to afford Respondent an opportunity to appear if he changed his mind before the hearing was held, the Judge delayed the commencement of the hearing for one half hour past the scheduled time, but Respondent did not appear. Therefore, the hearing was held in Respondent's absence.

Counsel for Petitioner presented the testimony of J. A. James, an investigator with the Department, and introduced Petitioner's Exhibits 1 - 4. No evidence was introduced by or on behalf of the Respondent.

No transcript of the proceedings was furnished. Counsel for Petitioner indicated his intent not to file a post-hearing submittal and concurred with the issuance of an expedited Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division) was the state agency in Florida responsible for licensing real estate brokers and salespersons and for the regulation of the real estate profession in this state. Respondent was licensed as a real estate broker, but his license had been suspended effective October 13, 1996

   
   

2. On May 17, 1994, after Respondent had requested but failed to appear at an informal hearing on his alleged misconduct, the Florida Real Estate Commission (Commission) issued a Final Order in which it ordered Respondent be reprimanded and pay a $500.00 administrative fine within thirty days of the filing of the order on pain of suspension of his broker's license until the fine was paid. In addition, the Commission placed Respondent's license on probation for one year with the requirement that, inter alia, he enroll in and satisfactorily complete a sixty hour post-licensure education course for brokers within one year of the filing of the order.

   
   

3. Though in collateral communications to Petitioner's counsel, to an investigator, Ms. May, and to the prior Judge assigned in this matter, all of which are a part of the file in this case, Respondent claimed not to have received the Final Order in issue, Mr. James, another investigator for the Department of Business and Professional Regulation (Department), in his visit to Respondent's office on June 28, 1995, found a copy of the order in Respondent's office files.

   
   

4. The prior misconduct by Respondent bears on the instant case only in so far as it supports the action taken with respect to it by the Commission. As it appears, Respondent failed to file his monthly escrow account reconciliation on the required form though he had received and had a copy of the required form in his file. He claims, in his correspondence, and there is no evidence to refute his claim, that because of his poor memory at the advanced age of eighty years, he forgot the new form had become required and continued to use the previously approved form he had used over his prior twenty-eight years in the real estate business.

   
   

5. It appears that when that discrepancy was found by the former investigator, Ms. Mays, Respondent was issued a citation calling for a fine of

   $100.00 and 30 hours of continuing education, but considering that proposed penalty too severe for a "minor" offense resulting from a lapse of memory, especially when no loss was occasioned to any client, he rejected the citation and demanded a hearing. He then did not attend the informal hearing scheduled.

   Thereafter, the commission entered the Final Order alleged in the instant Administrative Complaint, the terms of which were described above.

   
   

6. The required $500.00 administrative fine has not been paid nor has the required post-licensing education been completed. Respondent still contends the fine is too severe and because of his age and inability to drive at night, he is unable to take the required course.

   
   

7. On June 28, 1995, Mr. James, an investigator for the Department, acting on a report that Respondent was continuing to operate his brokerage even though his license had been suspended, went to the Respondent's office located at 56 Harvard Street in Englewood, Florida. At that address Mr. James found Respondent operating two businesses from the same office. One was Englewood Realty and the other was a dry ice company.

   
   

8. During the interview held on June 28, 1995, Respondent admitted he had received the Final Order but considered it unfair. Respondent also admitted he was actively engaged in the practice of real estate and wanted to keep the brokerage open until he could sell his own property, and "just in case something else came up."

   
   

9. While Mr. James was at the Respondent's office, Respondent was visited by a female representative of an advertising publication who spoke with him about his advertisement for the sale of some real estate. Also during the visit, as James recalls, Respondent received at least one telephone call which seemed to relate to the sale of real property. In both cases, however, it appeared to Mr. James that Respondent was referring to his own property. James did not discover any reference to sales or dealing relating to property owned by anyone other than Respondent. James also reviewed Respondent's books for the brokerage and it appeared to him that Respondent was operating at a loss. Nonetheless, at no time did Respondent fail to identify himself as a real estate broker either to the advertising representative or in response to the telephone call.

   
   

10. In light of Respondent's refusal to comply with the earlier suspension, his apparent unwillingness to cease operations as directed until it suited his purpose, and his unfavorable financial position as to the brokerage, the Petitioner recommends only that Respondent's license as a real estate broker be revoked.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. In its Administrative Complaint, the Division charged the Respondent with having operated as a real estate broker without being the holder of a valid and current license as a broker, in violation of Section 475.25(1)(a) and (e), Florida Statutes, and seeks to revoke his license, currently under suspension, because of that alleged misconduct.

    
    

13. The burden of proof rests with the Petitioner to establish Respondent's misconduct by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

14. Here, Petitioner has established that Respondent's license as a real estate broker was suspended because of, admittedly, minor misconduct. The suspension was imposed through the issuance of a Final Order of the Florida Real Estate Commission on May 17, 1994, which required Respondent to pay an administrative fine and attend continuing education. If he did not do so, the suspension would come into effect. Respondent neither paid the fine nor completed the required continuing education courses.

    
    

15. Thereafter, Respondent continued to operate his real estate brokerage although the suspension had become effective and his license as a broker was then invalid. Though the Department's investigator could not find any indication Respondent was actively brokering real estate for other clients, he did establish that Respondent continued to hold himself out as a licensed real estate broker and was available to do so. As Respondent commented, he wanted to keep his license just in case something came up. Respondent offered nothing to rebut the clearly established conclusion that he was in violation of the statute prohibiting the operation of a real estate brokerage without a valid license.

    
    

16. The Division seeks to revoke Respondent's broker's license. At first blush the revocation of a broker's license might seem excessive in this case, especially since the initial misconduct setting the disciplinary wheel in motion was no more than the use of an out-of-date form. However, the fundamental issue here is not the first underlying misconduct, for which only a fine was initially intended, but the Respondent's failure to comply with the lawful requirements of the agency. Not only did Respondent unilaterally conclude the intended fine was too severe, he requested a hearing on the matter and then failed to attend it and state his position.

    
    

17. When the Commission then reiterated the imposition of an administrative fine and directed Respondent undergo additional continuing education, he again refused to pay the fine, claiming the fine was too severe, and also declined to attend the continuing education courses, relying on his contention that, because of his advanced age and weak night vision, he could not drive to the courses at night. When his license was thereafter suspended because of his failure to comply with the Commission's discipline, he continued to hold himself out as a broker.

    
    

18. When the agency then initiated further disciplinary action for that misconduct, Respondent demanded formal hearing and, notwithstanding counsel and the Judge traveled to Respondent's location for the hearing, at the eleventh hour advised of his intent not to participate, characterizing the procedure as a "farce."

    
    

19. The proposed punishment is within statutory and rule parameters for the offense proven. Taken as a whole, Respondent's actions and attitude toward the Commission's rules and requirements and the disciplinary process is indicative of his utter contempt for the regulatory process, and under those circumstances, revocation appears to be the most appropriate form of discipline. Apparently, Respondent agrees, as his most recent letter indicates his intention not to renew his license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Florida Real Estate Commission enter a Final Order in this case revoking Respondent's license as a real estate broker in Florida.

RECOMMENDED this 2nd day of October, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1996.

COPIES FURNISHED:

Raymond J. McGinn Englewood Realty

56 Harvard Street Englewood, Florida 34223

Steven W. Johnson, Esquire Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street, N-308 Post Office Box 1900

Orlando, Florida 32802-1900

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Henry M. Solares Division Director

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001427

Orders for Case No: 96-001427