STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 02-3454PL

)

TERRENCE MCMANUS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on

October 25, 2002, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Christopher J. DeCosta, Esquire

Department of Business and Professional Regulation

Post Office Box 1900 Orlando, Florida 32802-1900

For Respondent: James R. Mitchell, Esquire

Baker & Hostetler, LLP

200 South Orange Avenue, Suite 2300 Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.

PRELIMINARY STATEMENT

On December 31, 2001, Petitioner filed an Administrative Complaint against Respondent containing the following "essential allegation[s] of material 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, and Chapters 120, 455 and 475, Fla. Stat., and the rules promulgated pursuant thereto.

   
   

2. Respondent is and was at all times material hereto a licensed Florida real estate salesperson, issued license number 0520022 in accordance with Chapter 475 of the Florida Statutes.

   
   

3. The last license issued was as an active salesperson at Jordyn Taylor Properties, Inc., 1900 Okeechobee Blvd. C1, West Palm Beach, Florida 33409.

   
   

4. On or about February 29, 2000, Respondent, as buyer, entered into a purchase and sale contract. A copy of the purchase and sale contract is attached hereto and incorporated herein as Exhibit 1.

   
   

5. The contract closed on or about May 15, 2000. A copy of the settlement statement is attached hereto and incorporated herein as Exhibit 2.

   
   

6. At closing, Respondent was to pay

   $3,670.04 to the title agent.

   
   

7. To the closing, Respondent brought a cashier's check made payable to him in the amount of $3,684.64. A copy of the check is attached hereto and incorporated herein as Exhibit 3.

   
   

8. The title agent neglected to collect the funds from Respondent.

   
   

9. Two days after closing, on or about May 17, 2000, Respondent negotiated the above-mentioned check. A copy of the negotiated check and teller ledger is attached hereto and incorporated herein as Exhibit 4.

   
   

10. On or about August 1, 2000, an agent from Cypress Title Insurance Corp. demanded that Respondent remit the funds that the title agent failed to collect on the day of closing. A copy of the letter is attached hereto and incorporated herein as Exhibit 5.

    
    

11. Despite negotiating the check two days after closing, Respondent maintains that he gave the title agent the necessary funds to close.

According to Count I of the Administrative Complaint (the Administrative Complaint's sole count), "based upon the foregoing," Respondent is guilty of "dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes."

By letter dated April 8, 2002, from his attorney, which read as follows, Respondent requested a "formal hearing":

Mr. Terrence McManus does dispute the allegations of fact contained in the Administrative Complaint and requests this be considered a petition for a formal hearing, pursuant to Section 120.57(1), Florida Statutes, before an Administrative Law Judge to be appointed by the Division of Administrative Hearings.

The specific facts in dispute are: paragraphs 8 and 9, and Count I. [1/]

The matter was referred to the Division of Administrative Hearings (Division) on September 3, 2002, for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested.

On October 17, 2002, the parties filed their Joint Response to Pre-Hearing Order, which provided, in part, as follows:

1. Concise statement of the controversy:

   
   

   1. Whether Respondent is guilty of dishonest dealings [2/]in any business transaction in violation of § 475.25(1)(b), Florida Statutes (2001).

   
   

2. Statement of each party's position:

   
   

   Petitioner asserts that on or about May 15, 2000, Respondent brought a cashier's check to a closing in which Respondent was the buyer. The transaction required that Respondent deliver the check, which was for the closing costs, to the title agent, upon closing. Respondent failed to deliver the check, and cashed said check on May 17, 2000. Subsequent to the closing, title agent discovered that check was not delivered, and requested Respondent to deliver closing funds. Respondent refused to pay the closing costs, and denied that he

   failed to deliver the check to the closing agent.

   
   

   Respondent asserts that Respondent did indeed tender the cashier's check to the closing agent at closing on May 15, 2000. In the course of tendering the cashier's check, Respondent endorsed the check along with his account number as the check was made payable to Respondent, thereby necessitating endorsement. Respondent denies having deposited or otherwise cashing the cashier's check subsequent to closing.

   
   

   * * *

   
   

3. Facts which are admitted:

   
   

   Respondent admits paragraphs one (1) through [seven] (7) of the Administrative Complaint.

   
   

4. Facts which remain to be litigated:

Paragraphs eight through eleven of the Administrative Complaint.

As noted above, the final hearing was held on October 25, 2002. Four witnesses testified at the hearing: Loretta Ramsey, Edmarie Edwards, Susan Anderson, and Respondent. In addition to the testimony of these four witnesses, four exhibits (Petitioner's Exhibits 5, 6, 7, and 9) were offered and received into evidence.

At the close of the evidentiary portion of the hearing, the undersigned established a deadline (30 days from the date of the filing of the hearing transcript with the Division) for the filing of proposed recommended orders.

A Transcript of the final hearing (consisting of one volume) was filed with the Division on December 19, 2002. Petitioner and Respondent filed their Proposed Recommended Orders on January 16, 2003, and January 21, 2003, respectively. These post-hearing submittals have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and the record as a whole, including the admissions made by Respondent in the Joint Response to Pre-Hearing Order, the following findings of fact are made:

1. At all times material to the instant case, Respondent was a Florida-licensed real estate salesperson.

2. Since June of 2002, Respondent has been a Florida- licensed real estate broker.

3. Respondent is a convicted felon as a result of a single felony conviction. 3/

4. In 2000, Respondent was involved in a real estate transaction in which he was the buyer.

5. The property that was the subject of the transaction was located at 119 Hammocks Drive in West Palm Beach, Florida.

6. The transaction was closed through a title company, Cypress Title Company (Cypress).

7. The closing took place on May 15, 2000.

   
   

8. Cypress was represented at the May 15, 2000, closing by Susan Anderson, a marketing representative with Cypress who conducted closings (approximately five or six a month) as part of her job responsibilities.

9. Ms. Anderson had two years experience conducting closings at the time of the May 15, 2000, closing.

10. At each closing at which she represented Cypress,

    
    

    Ms. Anderson was responsible for, among other things, collecting the funds necessary to effectuate the closing and making the appropriate disbursements.

11. It was Ms. Anderson's routine practice, before turning a closing file over to Cypress' "post closer" following a closing, to "make sure [that] everything [that needed to be in the file was] there."

12. Prior to the May 15, 2000, closing, Respondent was contacted by "someone from Cypress" and instructed to bring to the closing a cashier's check in the amount of $3,684.64 made payable to himself. Respondent was advised that the $3,684.64 represented an "estimate" of the amount he needed to pay from his own funds to close the transaction.

13. On May 15, 2000, prior to the time of the closing, Respondent went to Bank United, where he had an account, and

    purchased a cashier's check in the amount of $3,684.64 made payable to himself, as he had been instructed to do.

14. Respondent brought the cashier's check to the closing.

    
    

15. At the closing, Respondent endorsed the check with his signature, underneath which he wrote, in accordance with his routine practice when endorsing checks, the number of his account at Bank United.

16. He then handed the cashier's check to Ms. Anderson.

    
    

17. The actual amount due from Respondent was $3,670.04,

    
    

    $14.64 less than the amount of the cashier's check.

    
    

18. Accordingly, Ms. Anderson gave Respondent a check for

    
    

    $14.64.

    
    

19. Following the closing, Ms. Anderson examined the closing file (in accordance with her routine practice). In doing so, it did not "come to [her] attention that the [cashier's] check [that Respondent had brought to the closing] was not there."

20. After conducting such an examination, she gave the closing file to the "post-closer."

21. The cashier's check that Respondent had given to Ms.

    
    

    Anderson at the May 15, 2000, closing was cashed at Bank United on May 17, 2000, by someone other than Respondent or

    Ms. Anderson.

22. Pursuant to Bank United policy, "[o]nly the payee can cash [a cashier's] check." Bank United tellers are supposed to ask for a "picture ID" when a cashier's check is presented for cashing. There have been tellers at the bank, however, who have not followed this policy and, as a result, have been counseled or disciplined. 4/

23. Approximately, two months after the May 15, 2000, closing, Cypress' owner approached Ms. Anderson and told her that there was no proceeds check from Respondent in the closing file.

24. Ms. Anderson was asked to contact Respondent to inquire about the matter, which she did.

25. Respondent was initially "very cooperative." He gave Ms. Anderson his "account number [at Bank United] and [the name of a person] to call at the bank."

26. Using the information Respondent had provided,

    
    

    Ms. Anderson was able to obtain a copy of the cashier's check that Respondent had given to Ms. Anderson at the closing and that subsequently had been cashed at Bank United.

27. Kevin Wilkinson, an attorney acting on behalf of Cypress, also contacted Respondent. Mr. Wilkinson's tone, in Respondent's view, was accusatory and threatening.

28. Respondent's response to Mr. Wilkinson's "aggressive[ness]" was to stop cooperating with Cypress.

    CONCLUSIONS OF LAW

    
    

29. The Florida Real Estate Commission (Commission) is statutorily empowered to take disciplinary action against Florida-licensed real estate salespersons and brokers based upon any of the grounds enumerated in Section 475.25(1), Florida Statutes.

30. Such disciplinary action may include one or more of the following penalties: license revocation; license suspension (for a period not exceeding ten years); imposition of an administrative fine not to exceed $1,000.00 for each count or separate offense; issuance of a reprimand; and placement of the licensee on probation. Section 475.25(1), Florida Statutes.

31. The Commission may take such action only after the licensee has been given reasonable written notice of the charges and an adequate opportunity to request a proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes.

32. An evidentiary hearing must be held if requested by the licensee when there are disputed issues of material fact. Sections 120.569(1) and 120.57(1), Florida Statutes.

33. At the hearing, Petitioner bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violations, alleged in the charging instrument.

34. Proof greater than a mere preponderance of the evidence must be presented by Petitioner to meet its burden of

    proof. Clear and convincing evidence of the licensee's guilt is required. See Department of Banking and Finance, Division of

    Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So.

    2d 292, 294 (Fla. 1987); Pou v. Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

35. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .

    the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re

    Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA

    1983). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

36. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate Petitioner's evidentiary presentation in light of the specific factual allegations made in the charging instrument. Due process prohibits an agency from taking disciplinary action against a licensee based upon conduct not specifically alleged in the charging instrument. See Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

37. Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the charging instrument] to have been violated." Delk v. Department of Professional

    Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In deciding whether "the statute or rule claimed [in the charging instrument] to have been violated" was in fact violated, as alleged by Petitioner, if there is any reasonable doubt, that doubt must be resolved in favor of the licensee. See Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531

    (Fla. 1st DCA 1996); Elmariah v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

38. In those cases where the proof is sufficient to establish that the licensee committed the violation(s) alleged in the charging instrument and that therefore disciplinary action is warranted, it is necessary, in determining what disciplinary action should be taken against the licensee, to consult the Commission's "disciplinary guidelines," as they existed at the time of the violation(s). See Parrot Heads, Inc. v. Department of Business and Professional Regulation, 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is bound by its own rules . . . creat[ing] guidelines for disciplinary penalties."); and Orasan v. Agency for Health Care Administration, Board of Medicine, 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996)("[T]he case was properly decided under the disciplinary guidelines in effect at the time of the alleged violations."); see also State v. Jenkins, 469 So. 2d 733, 734 (Fla. 1985)("[A]gency rules and regulations, duly promulgated under the authority of law, have the effect of law."); Buffa v. Singletary, 652 So. 2d 885, 886 (Fla. 1st DCA 1995)("An agency must comply with its own rules."); and Williams v. Department of Transportation, 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency

    is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

39. At all times material to the instant case, the Commission's "disciplinary guidelines" have been set forth in Rule 61J2-24.001, Florida Administrative Code, and have provided, in part, as follows:

    1. Pursuant to s. 455.2273, Florida Statutes, the Commission sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon licensees guilty of violating Chapters 455 or 475, Florida Statutes. The purpose of the disciplinary guidelines is to give notice to licensees of the range of penalties which normally will be imposed for each count during a formal or an informal hearing. For purposes of this rule, the order of penalties, ranging from lowest to highest, is: reprimand, fine, probation, suspension, and revocation or denial. Pursuant to s. 475.25(1), Florida Statutes, combinations of these penalties are permissible by law. Nothing in this rule shall preclude any discipline imposed upon a licensee pursuant to a stipulation or settlement agreement, nor shall the range of penalties set forth in this rule preclude the Probable Cause Panel from issuing a letter of guidance.

       
       

       * * *

       
       

       (3) The penalties are as listed unless aggravating or mitigating circumstances apply pursuant to paragraph (4). The verbal identification of offenses is descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included.

       
       

       * * *

       
       

       (c) In the case of . . . dishonest dealing, the usual action the Commission shall be to impose a penalty of revocation

       
       

       * * *

       
       

       (4)(a) When either the Petitioner or Respondent is able to demonstrate aggravating or mitigating circumstances . . . to a Division of

       Administrative Hearings [Administrative Law Judge] in a s. 120.57(1), Florida Statutes, hearing by clear and convincing evidence, the . . . [Administrative Law Judge] shall be entitled to deviate from the above guidelines in . . . recommending discipline . . . upon a licensee. . . .

       
       

       (b) Aggravating or mitigating circumstances may include, but are not limited to, the following:

       
       

       1. The severity of the offense.

          
          

       2. The degree of harm to the consumer or public.

          
          

       3. The number of counts in the Administrative Complaint.

          
          

       4. The number of times the offenses previously have been committed by the licensee.

          
          

       5. The disciplinary history of the licensee.

          
          

       6. The status of the licensee at the time the offense was committed.

          
          

       7. The degree of financial hardship incurred by a licensee as a result of the imposition of a fine or suspension of the license.

       8. Violation of the provision of Chapter 475, Florida Statutes, where in a letter of guidance as provided in s. 455.225(3), Florida Statutes, previously has been issued to the licensee.

       
       

40. The Administrative Complaint issued in the instant case, as narrowed by the parties' Joint Response to Pre-Hearing Order, alleges that Respondent engaged in "dishonest dealing by trick" in violation of Subsection (l)(b) of Section 475.25, Florida Statutes, by claiming, in connection with a real estate purchase he had personally made, that he had paid the title company the required closing costs with a cashier's check on the day of the closing, when, in fact, he had not done so, but rather had retained possession of the check until cashing it two days after the closing.

41. At all times material to the instant case, Subsection (1)(b) of Section 475.25, Florida Statutes, has authorized the Commission to take disciplinary action against a Florida- licensed real estate salesperson or broker who "[h]as been guilty of . . . dishonest dealing by trick . . . in any business transaction in this state or any other state, nation, or territory."

42. A salesperson or broker may be disciplined pursuant to Subsection (1)(b) of Section 475.25, Florida Statutes, "not only for dishonest conduct in transactions in which his only interest is as a [salesperson or] broker, but also for such conduct in

    his own personal affairs." LaRossa v. Department of Professional Regulation, 474 So. 2d 322, 323 (Fla. 3d DCA 1985); see also Santaniello v. Department of Professional Regulation, Board of Real Estate, 432 So. 2d 82, 83 (Fla. 2d DCA 1983)("[A] broker may be disciplined for objectionable conduct in dealing with his own land as contrasted with that of his clients."); Sellars v. Florida Real Estate Commission, 380 So. 2d 1052, 1054 (Fla. 1st DCA 1979)("A registered real estate broker may be disciplined for his dishonest conduct of business affairs for his own account, as well as for such conduct in transactions in which his only interest is as a broker."); and Department of Professional Regulation, Division of Real Estate v. Bloise, No. 87-2275, 1988 WL 617576 (Fla. DOAH 1988)(Recommended

    Order)("[E]even though the transaction was a personal one, Bloise still may be charged with violating Subsection 475.25(1)(b), Florida Statutes (1987) ").

43. Whether the business transaction is one in which the licensee acts in his capacity as a salesperson or broker or one in which he acts on his own behalf there must be wrongful intent or scienter on the part of the licensee for there to be a violation of Subsection (1)(b) of Section 475.25, Florida Statutes. See Munch v. Department of Professional Regulation,

    592 So. 2d 1136, 1143-44 (Fla. 1st DCA 1992)("It is clear that Section 475.25(1)(b) [Florida Statutes, which, in its first

    clause, authorizes the Commission to discipline a licensee 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] is penal in nature. As such, it must be construed strictly, in favor of the one against whom the penalty would be imposed. . . . Reading the first clause of Section 475.25(1)(b) (the portion of the statute which appellant was charged with having violated in Count I of the complaint), and applying to the words used their usual and natural meaning, it is apparent that it is contemplated that an intentional act be proved before a violation may be found."); and Morris v. Department of Professional Regulation, 474 So. 2d 841, 843 (Fla. 5th DCA 1985)(grounds of "'fraud, misrepresentation, concealment, false promises, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction' in violation of section 475.25(1)(b) . . . alleged by the complaint all require a finding of wrongful intent or scienter ").

44. The mere failure to fulfill a contractual obligation, without more, does not constitute a violation of Subsection (1)(b) of Section 475.25, Florida Statutes. See Capital Bank v. MVB, Inc., 644 So. 2d 515, 521 (Fla. 3d DCA 1994)("[F]ailure to perform a promise does not constitute fraud, unless the bank intended not to perform the contract at the time it was

    entered."); John Brown Automation, Inc. v. Nobles, 537 So. 2d 614, 618 (Fla. 2d DCA 1988)("[W]ell accepted precedent leaves no doubt that the mere failure to perform a promise does not constitute fraud. The result we reach would, of course, be different if the record disclosed a specific purpose in the appellants not to perform the contract at the time it was entered."); Steyr Daimler Puch of America v. A & A Bicycle Mart, Inc., 453 So. 2d 1149, 1150 (Fla. 4th DCA 1984)("As a general rule fraud cannot be predicated upon a mere promise not performed."); Department of Professional Regulation v. Boyd, No. 89-6718, 1991 WL 833017 (Fla. DOAH 1991)(Recommended

    Order)("[F]ailure to perform according to a contract of service is not tantamount to fraud regardless of who the parties to the contract are."); and Department of Professional Regulation,

    Division of Real Estate v. O'Neill, No. 87-1210, 1988 WL 618039 (Fla. DOAH 1988)(Recommended Order)("A promise that is merely unfulfilled, however, is not necessarily a false promise which would justify disciplinary action against the broker who makes it.").

45. The wrongful intent or scienter required to establish a violation of Subsection (1)(b) of Section 475.25, Florida Statutes may be proven by circumstantial evidence. See Walker

    v. Department of Business and Professional Regulation, 705 So. 2d 652, 654 (Fla. 5th DCA 1998)("DBPR presented undisputed

    circumstantial evidence that Walker's acts were intentional."); and Baker v. State, 639 So. 2d 103, 104 (Fla. 5th DCA 1994)("Intent is an operation of the mind and is not subject to direct proof, however, intent can be proven by circumstantial evidence."). For instance, it may be inferred from the licensee's actions. See Swanson v. State, 713 So. 2d 1097, 1101 (Fla. 4th DCA 1998)("Appellant's actions are sufficient to show intent to participate."); State v Breland, 421 So. 2d 761, 766 (Fla. 4th DCA 1982) ("Actions manifest intent."); G. K. D. v.

    State, 391 So. 2d 327, 328-29 (Fla. 1st DCA 1980)("Appellant testified that he did not intend to break the window, but the record indicates that he did willfully kick the window, and he may be presumed to have intended the probable consequences of his actions."); State v. West, 262 So. 2d 457, 458 (Fla. 4th DCA 1972)("[Intent] is not usually the subject of direct proof. It is inferred from the acts of the parties and from the surrounding circumstances."); and Rolex Watch U.S.A., Inc. v.

    Dauley, 1986 WL 12432 (N.D. Cal. 1986)("A finding of wrongful intent may be inferred from defendant's actions.").

46. In the instant case, Petitioner relied primarily on the testimony of Ms. Anderson in its effort to meet its burden of clearly and convincingly establishing that Respondent committed the violation of Subsection (1)(b) of Section 475.25, Florida Statutes, alleged in the Administrative Complaint.

    Ms. Anderson was the only one of Petitioner's three witnesses who was present at the May 15, 2000, closing referenced in the Administrative Complaint. In response to the request made by counsel for Petitioner on direct examination that she "briefly detail what happened that [she] remember[ed] on the day of [the] closing," Ms. Anderson candidly stated, "[U]nfortunately, being two and a half years ago, I don't remember a lot of it."

    Ms. Anderson was unable to definitely state, without hesitancy, that Respondent did not give her the cashier's check in question at the closing. The best she could do was to testify that she did not remember him doing so. Her lack of certainty regarding the matter is evident from the following exchange, later in direct examination, between her and counsel for Petitioner:

    Q. With reference to the proceeds check, you've previously stated that you didn't collect the check?

    
    

    A. I don't remember collecting the check.

    
    

    Q. And you - - did you cash the check?

    
    

    A. I did not cash the check.

    
    

47. The only other witness at the final hearing who testified about what occurred at the closing was Respondent. His recollection of these events was clearer than

    Ms. Anderson's. Respondent gave unequivocal testimony that he handed the cashier's check to Ms. Anderson at the closing. 5/ This testimony is believable even though it is self-serving and

    comes from a convicted felon. Ms. Anderson had been doing closings five or six times a month for two years. Given her experience, it is highly unlikely that she would have allowed the transaction to close without receiving the monies Respondent owed. For this reason, the undersigned has credited Respondent's testimony and found that, contrary the allegation made in the Administrative Complaint, Respondent did pay these monies, in the form of a cashier's check, to Ms. Anderson at the closing.

48. In making this finding, the undersigned has not overlooked the fact that the check was made payable to Respondent and was cashed two days after the closing at Bank United, which has a policy of allowing a cashier's check to be cashed only by the person who establishes, by showing a "picture ID" to the teller, that he or she is the payee identified on the check. Considering the totality of evidence presented, including the testimony of Edmarie Edwards, a regional service manager with Bank United, that all of the bank's tellers have not always enforced the bank's check cashing policy, the undersigned has concluded that there was not strict adherence to this policy when Respondent's cashier's check was presented for cashing. See Adams v. Aetna Casualty & Surety Company, 574 So. 2d 1142, 1154 (Fla. 1st DCA 1991)("In short, Aetna's proof of routine practice as the predicate for inferring that one or the

    other brochure had been sent to Mr. Adams and adequately informed him of his statutory rights is not conclusive by any means and does not support a finding on this issue as a matter of law."); Hayes v. Kincheloe, 784 F.2d 1434, 1439 (9th Cir.

    1986)("The attorney's regular practice might support a finding that he explained the elements of second degree murder to Hayes. The attorney's habits, however, are not conclusive."); and Levin v. U.S., 338 F.2d 265, 274 (D.C. Cir. 1964)("Proof of habit, for religious reasons, to be at home on Friday evenings clearly is not conclusive proof that the person having the habit may not be elsewhere on occasion and particularly on the specific Friday evening in issue.").

49. Inasmuch as Petitioner has not established by clear and convincing evidence that Respondent committed the violation of Subsection (1)(b) of Section 475.25, Florida Statutes, alleged in the Administrative Complaint, the Administrative Complaint should be dismissed.

RECOMMENDATION

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

RECOMMENDED that the Commission issue a final order dismissing the instant Administrative Complaint.

DONE AND ENTERED this 28th day of January, 2003, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2003.

ENDNOTES

1/ Pursuant to Subsection (2)(d) of Rule 28-106.201, Florida Administrative Code, a petition requesting an evidentiary hearing must include "[a] statement of all disputed issues of material fact."

2/ This "[c]oncise statement of the controversy" made by the parties in their Joint Response to Pre-Hearing Order effectively narrowed the Administrative Complaint, which alleged that Respondent was guilty of "dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes." See Gunn Plumbing, Inc. v. Dania Bank, 252 So. 2d 1,

4 (Fla. 1971)("A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court."); O'Neill v. O'Neill, 812 So. 2d 448, 452 (Fla. 5th DCA 2002)("When appropriately made, stipulations are binding on the parties and the courts."); and City Laundry and Linen Supply v. Coster, 465 So. 2d 641, 643 (Fla. 1st DCA 1985)("Parties are bound by a pretrial stipulation absent good cause for modification.").

3/ This information (which the undersigned has taken into consideration in evaluating the credibility of Respondent's exculpatory testimony) was permissibly elicited by Petitioner during its cross-examination of Respondent. See Porter v.

State, 593 So. 2d 1158, 1159 (Fla. 2d DCA 1992)("The state may impeach the character of the defendant by asking him whether he or she has ever been convicted of a felony or of a crime involving dishonesty or a false statement, and how many times."); and Section 90.610(1), Florida Statutes ("A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions: (a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness. (b) Evidence of juvenile adjudications are inadmissible under this subsection."). While the testimony of a convicted felon, like Respondent, should be given special scrutiny inasmuch as such person is "more apt to lie than is a person with an unblemished past" (Harris v. State, 660 So. 2d 378, 380 (Fla. 5th DCA 1995), if it withstands such scrutiny, it may be credited and relied upon by the trier of fact, regardless of its self-serving nature. See The Florida Bar v. Karten, 829 So. 2d 883 (Fla. 2002)(no error in "referee's reliance on the testimony of . . . a twelve-time convicted felon"); Melendez v. State, 498 So. 2d 1258, 1262 (Fla. 1986)(Barkett, J., specially concurring)("The jury is clearly entitled to believe the convict's testimony, and a verdict based on this evidence cannot and should not be disturbed."); Martuccio v. Department of Professional Regulation, Board of Optometry, 622 So. 2d 607, 609-10 (Fla. 1st DCA 1993)("Neither Dr. Martuccio's personal interest in his own case, nor his lack of licensure in Florida rendered his testimony incompetent. Thus the hearing officer acted within her prerogative to rely upon Dr. Martuccio's testimony as competent substantial evidence to support her conclusions.").

4/ The evidentiary record in the instant case does not reveal whether or not the teller who cashed Respondent's cashier's check was one who consistently followed Bank United's check cashing policy.

5/ See the following portions of the Transcript of the final hearing (on pages 135, 136, and 138 thereof):

Q. (By counsel for Respondent) Let me back up. Did you tender this check to the closing agent at the closing?

A. (By Respondent) I certainly did.

* * *

Q. (By counsel for Respondent) Did you give the check to the closing coordinator or agent, Susan Anderson?

A. (By Respondent) Yes.

* * *

Q. (By counsel for Respondent) I'll ask the question one more time. Did you tender this proceed[s] check to Susan Anderson?

A. (By Respondent) Yes, I did at closing.

Q. Did she take it from you?

A. She certainly did and [gave] a refund check to me.

COPIES FURNISHED:

Christopher J. DeCosta, Esquire Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900

James R. Mitchell, Esquire Baker & Hostetler, LLP

200 South Orange Avenue, Suite 2300 Orlando, Florida 32801

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Buddy Johnson, Director Division of Real Estate Department of Business and

Professional Regulation

400 West Robinson Street, Suite 802, North Orlando, Florida 32801

Nancy P. Campiglia, Chief Attorney Division of Real Estate

Department of Business and Professional Regulation

400 West Robinson Street, Suite 802, North 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: 02-003454PL

Orders for Case No: 02-003454PL