STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5046

)

MARCO ANTONIO VERGARA, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on January 15, 1997, in Orlando, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Geoffrey Kirk, Esquire

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

For Respondent: Frederick H. Wilsen, Esquire

Gillis and Wilsen

1415 East Robinson Street, Suite B Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent violated Section 475.25(1)(s), Florida Statutes,1 by having a registration for a state license revoked and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on August 23, 1996. Respondent timely requested a administrative hearing.

At the administrative hearing, Petitioner presented the testimony of no witnesses and submitted two exhibits for admission in evidence. Respondent testified in his own behalf and submitted nine exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the formal hearing filed with the undersigned on January 31, 1997.

Petitioner timely filed its proposed recommended order ("PRO") on February 6, 1997. Respondent timely filed his PRO on February 11, 1997.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses to practice real estate. Petitioner is also responsible for regulating licensees on behalf of the state.

2. Respondent is licensed as a real estate sales person under license number 0532841. Respondent's license is issued c/o Pan American Equities, Inc., 35725 Tanglewood Drive, Eustis, Florida, 32726.

3. Respondent is also licensed as a mortgage broker. He earns his living as a real estate broker and as a mortgage broker.

4. Prior to January 5, 1996, Respondent was licensed as an

   insurance agent by the Florida Department of Insurance (the "Department") pursuant to license number 589181909. Sometime prior to January 5, 1996, Respondent had terminated his involvement in the business of insurance and had become employed as a real estate salesman and as a mortgage broker.

5. On December 11, 1995, the Department filed a 16 page administrative complaint against Respondent alleging violations in five separate counts. At the time, Respondent was employed full time as a real estate salesman and mortgage broker and was preoccupied with his wedding plans.

6. On January 5, 1996, Respondent voluntarily surrendered his insurance license and signed a settlement stipulation for a consent order. On January 9, 1996, the Department entered a consent order.

7. The settlement stipulation and consent order are analogous to a plea of convenience. Respondent did not admit to the allegations in the administrative complaint filed by the Department. In relevant part, the settlement stipulation stated:

   . . . The Department conducted an investigation of the Respondent in his capacity as an insurance agent. As a result thereof, the Department alleges that the Respondent made material misrepresentations in surplus lines business and engaged in illegal premium financing and sliding. (emphasis supplied)

   * * *

   . . . By execution of this Settlement Stipulation For Consent Order and by entry of the subsequent Consent Order in this case, the Department and the Respondent intend to and do resolve all issues which pertain to the matters raised in the

   Department's investigation. (emphasis supplied)

8. Like the settlement stipulation, the consent order contains no admission of guilt by Respondent. The consent order states, in relevant part:

   . . . The Settlement Stipulation for Consent Order dated January 5, 1996, is hereby approved and fully recorded herein by reference.

   
   

   . . . The licenses and eligibility for licensure and appointment of the Respondent . . . as an insurance agent in this state are hereby surrendered to the Department . . . .

   
   

   . . . The surrender . . . shall have the same force and effect as a revocation pursuant to Section 626.641(4).

9. Respondent surrendered his insurance license because he no longer needed it as a real estate agent and as a mortgage broker. Respondent was not represented by counsel and was not fully informed that the surrender of his insurance license would jeopardize his real estate license.

10. When Respondent learned that the surrender of his insurance license threatened his real estate license, Respondent retained counsel. Counsel moved to vacate the Department's consent order. The Department denied Respondent's motion.

    CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. The parties were duly noticed for the formal hearing.

12. Petitioner has the burden of proof in this proceeding.

    Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

13. Petitioner satisfied part of its burden of proof. Petitioner showed by clear and convincing evidence that Respondent violated Section 475.25(1)(s).

14. Petitioner did not show by clear and convincing evidence that revocation of Respondent's real estate license is a reasonable penalty. The penalties authorized for violating Section 475.25(1)(s) are prescribed in Sections 455.227 and 475.25(1) and Florida Administrative Code Rule 61J-24.001.2 The authorized penalties range from a reprimand to revocation.

15. Revocation of a license under Section 475.25 should be aimed at the dishonest and unscrupulous. Cf. Dreyer v. Florida Real Estate Commission, 370 So.2d 95, 100 (Fla. 4th DCA 1979); Brod v. Jernigan, 188 So.2d 575, 581 (Fla. 2d DCA 1966); Rivard v. McCoy, 212 So.2d 672, 674-676 (Fla. 1st DCA 1968). Petitioner failed to show by clear and convincing evidence that Respondent is dishonest and unscrupulous.

16. Petitioner failed to show by clear and convincing evidence that other factors supporting revocation of Respondent's real estate license are present in this proceeding. Petitioner failed to show: that Respondent converted or mishandled client funds; that the amount of funds converted or mishandled was significant; that Respondent has not made restitution of a

client's funds; or that any other harm caused by Respondent, if any, was egregious.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 475.25(1)(s) and reprimanding Respondent for doing so.

RECOMMENDED this 21st day of February, 1997, in Tallahassee, Florida.

DANIEL MANRY

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 21st day of February, 1997.

ENDNOTES

1/ All section and chapter references are to Florida Statutes (1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order.

COPIES FURNISHED:

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

Lynda Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Center

1940 North Monroe Street Tallahassee, Florida 32399-0792

Geoffrey Kirk, Esquire Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

Frederick H. Wilsen, Esquire Gillis and Wilsen

1415 East Robinson Street, Suite B Orlando, Florida 32801

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: 96-005046

Orders for Case No: 96-005046