STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-1532

)

LAWRENCE A. BENNETT, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 24, 1998, by video teleconference at Miami, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven D. Fieldman, Esquire

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Lawrence A. Bennett, pro se

11077 Biscayne Boulevard

Miami, Florida 33161 STATEMENT OF THE ISSUES

Whether Respondent violated Sections 475.25(1)(b), (d)1, and (f), Florida Statutes, and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On February 19, 1998, Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), filed a three-count Amended Administrative Complaint against Respondent, Lawrence A. Bennett (Bennett), alleging that Bennett violated Sections 475.25(1)(b), (d)1, and (f), Florida Statutes. The case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge.

At the final hearing, Petitioner called Jean Rikman, Siona Hayoun, and Myron Syken as its witnesses. Respondent testified in his own behalf. Petitioner's Exhibits 1-3 were admitted in evidence. Respondent's Exhibits 1 and 2 were admitted in evidence. Official recognition was taken of Chapter 475, Part I, Florida Statutes, and Chapter 61J2, Florida Administrative Code.

The parties agreed to file proposed recommended orders within ten days of the date of the filing of the transcript. The transcript was filed on August 3, 1998. On August 11, 1998, Petitioner requested an extension of time to file its proposed recommended order. The time for filing proposed recommended orders was extended to August 17, 1998. The parties timely filed their proposed recommended orders. The

parties' proposed recommended orders have been considered in rendering this recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state 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 and Chapters 120, 455, and 475, Florida Statutes, and the administrative rules promulgated pursuant thereto.

2. Respondent, Lawrence A. Bennett (Bennett), is and was at all times material hereto a licensed Florida real estate broker, issued license numbers 0603561 and 3003909 in accordance with Chapter 475, Florida Statutes.

3. On September 20, 1996, Siyona Hayoun, a licensed real estate salesperson working for Isran Realty, asked her broker,

   Jean Rikman, to go to Macken Realty and pick up a key to unit G511 of Point East condominium complex. Ms. Rikman picked up the key and gave it to Ms. Hayoun.

4. Ms. Hayoun took a client to Point East and met with Bennett. Bennett showed Ms. Hayoun and her client one or two units that he had listed at Point East. After viewing Bennett's listings, Ms. Hayoun and her client went to Unit

   G511, which was not listed by Bennett. Bennett accompanied them to Unit G511.

5. After Ms. Hayoun and her client left Point East, Bennett telephoned Myron Syken, a salesperson with Macken Realty, and told him that he wished to show Unit G511 on the following day and needed the key. Mr. Syken told Bennett that he could have the key and that it would be available at Macken Realty the next morning.

6. In the evening Ms. Hayoun received a telephone call from Bennett, who told her that he had permission from Mr. Syken to get the key to Unit G511 from her. Based on Bennett's representation, Ms. Hayoun gave him the key.

7. Later in the evening, Ms. Hayoun received a telephone call from Mr. Syken, who asked her to bring the key to Unit G511 back to his office because another agent wanted to pick up the key the next morning. Ms. Hayoun told Mr. Syken that she had given the key to Bennett because Bennett told her that Mr. Syken had given him permission to get the key.

8. The next day, September 21, 1996, Mr. Syken called Bennett and asked him to return the key. Bennett refused to do so, saying that the listing for the apartment had expired.

9. After his telephone conversation with Bennett, Mr.

   
   

   Syken went to Bennett's apartment to retrieve the key. Bennett refused to give the key to him, and the two men

   exchanged words. The police were called, but by the time they arrived at Bennett's apartment, Mr. Syken had left.

10. According to Bennett, he took the key to the office of the condominium complex and left it after the police came to his apartment. He did not get a receipt for the key and stated that he did not need a receipt because he was an owner at Pointe East so the key was still in his possession when he placed it in the office. Bennett conceded at the final hearing that he retained possession of the key.

11. Later on Mr. Syken and Bennett had another confrontation near the gate house for the apartment complex, resulting in Bennett spraying mace at Mr. Syken. The police were called again. When the police arrived, they arrested Bennett and charged him with battery on the elderly. The charge was later reduced to battery.

12. After a bench trial on November 18, 1997, Bennett was found guilty of battery relating to the September 21, 1996,

    incident. Dade County Case No. 97-41495. Adjudication was withheld.

13. As a result of an incident on October 12, 1996, involving Anita Gilden, another licensee who worked for Macken Realty, Bennett was arrested and charged with battery on the elderly. The charge was later reduced to battery. On November 25, 1997, Bennett pled nolo contendere to a battery upon Anita Gilden. Bennett was convicted of battery, and adjudication was withheld. Dade County Case No. 97-41496.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

15. Petitioner is seeking suspension of Bennett's real estate broker's license and alleges that Bennett violated Sections 475.25(1)(b), (d)1, and (f), Florida Statutes. Petitioner must establish the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

16. Sections 475.25(1)(b), (d)1, and (f), Florida Statutes, provide that the Florida Real Estate Commission may discipline a licensee if the licensee:

    (b) Has been found 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 in this state or any other state, nation, or territory; . .

    . .

    
    

    * * *

    
    

    (d)1. Has 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 as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or 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 judgment 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 or portion thereof, which has come into the licensee's hands and which is not the licensee's property or which the licensee is not in law or equity entitled to retain under the circumstances.

    * * *

    
    

    (f) Has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the activities of a licensed real estate broker or salesperson, or involves moral turpitude or fraudulent or dishonest dealing. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be prima facie evidence of such guilt.

    
    

17. Bennett violated Section 475.25(1)(b), Florida

    Statutes. He obtained the key from Ms. Hayoun by misrepresenting to Ms. Hayoun that Mr. Syken had given him permission to obtain the key from her. Misrepresentation may be spoken or written words, or "any other conduct which amounts to an assertion not in accordance with the truth." Nagashima v. Busck, 541 So. 2d 783 (Fla. 4th DCA 1989), citing Comment (b) to Section 525, Restatement (Second) of Torts.

18. Bennett violated Section 475.25(1)(d)1, Florida Statutes, by not returning the key to Macken Realty. Bennett knew that Ms. Hayoun had received the key from Macken Realty. Bennett called Macken Realty and spoke to Mr. Syken to request the key. Bennett argues that the listing for the apartment had expired and he did not think that Ms. Hayoun was credible. Bennett did not have permission from the owner of the apartment to keep the key. Macken Realty had received the key from the owner of the apartment and was responsible to the owner to for the key. Bennett was not entitled to retain the key and should have returned it to Mr. Syken when Mr. Syken made the demand to return the key.

19. Bennett is guilty of violating Section 475.25(1)(f).

    
    

    Florida Statutes. He was convicted of a crime which directly relates to the activities of a licensed real estate broker or salesperson. Bennett committed battery on another licensee

    during a dispute between the two licensees concerning the key to an apartment unit which had been listed with Macken Realty.

20. In Nelson v. Department of Business and Professional Regulation, 707 So. 2d 378 (Fla. 5th DCA 1998), the appellate court held that a real estate broker who was convicted of battery and criminal mischief by setting off a smoke bomb at the offices of a government agency as a political protest was not convicted of a crime of moral turpitude or fraudulent or dishonest dealings. Nelson does not stand for the proposition that battery can never be considered a crime involving moral turpitude.

21. In State ex rel. Tullidge v. Hollingsworth,

    
    

    146 So. 660, 661, (Fla. 1933), the court discussed the definition of moral turpitude and stated:

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. 126 Ga. 459, 55 S.E. 191, 7 L. R. A. (N. S.) 272,

    115 Am. St. Rep. 102, 7 Ann. Cas. 1164.

    It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

    
    

22. Based on the facts of the instant case, the two incidents of battery on elderly real estate licensees in less than a one-month period do constitute crimes involving moral turpitude. It shows that Bennett did not restrain his actions

    in dealing with other members of his profession and impugns his ability to deal fairly with the public.

23. Rule 61J2-24.001(3)(c), Florida Administrative Code, provides as a disciplinary guideline for violations of Section 475.25(1)(b), Florida Statutes, "in the case of fraud, misrepresentation or dishonest dealings, the usual action of the Commission shall be to impose a penalty of revocation. In the case of concealment, false promises and false pretenses, the usual action of the Commission shall be to impose a penalty of a 3 to 5 year suspension and an administrative fine of $1,000."

24. Rule 61J2-24-24.001(e), Florida Administrative Code, provides as a disciplinary guideline for a violation of Section 475.25(1)(d), Florida Statutes, "[t]he usual action of the Commission shall be to impose a penalty of an administrative fine of $1,000 to a 5 year suspension."

25. Rule 61J2-24.0001(g), Florida Administrative Code, provides as a disciplinary guideline for a violation of Section 475.25(1)(f), Florida Statutes, "[t]he usual action of the Commission shall be to impose a penalty from a 7-year suspension to revocation and an administrative fine of $1,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered

finding that Lawrence A. Bennett is guilty of violating Sections 475.25(1)(b), (d)1, and (f), Florida Statutes, suspending his license for one year, and imposing a $3,000 administrative fine.

DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge Division of Administrative

Hearings

Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative

this 3rd day of September, 1998.

COPIES FURNISHED:

Henry M. Solares Division Director Division of Real Estate

Department of Business and Professional Regulation

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

Laura McCarthy, Esquire Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Lawrence A. Bennett, pro se 11077 Biscayne Boulevard Penthouse Suite

North Miami, Florida 33161

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: 98-001532

Orders for Case No: 98-001532