11-000069PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Clifford Esterson Status: Closed Recommended Order on Monday, March 28, 2011.

Summary: Petitioner failed to prove allegations by clear and convincing evidence. Recommend dismissal of Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 11 - 0069 PL

)

CLIFFORD ESTERSON , )

)

Respondent. )

__________ ______________________)

RECOMMENDED ORDER

Edward T. Bauer , Administrative Law Judge of the Division

of Administrative Hearings , conducted the final hearing on

March 24, 2011 , by video teleconference a t sites in Tallahassee

and Lauderdale Lakes , Florida .

APPEARANCES

For Petitioner: Patrick J. Cunningham , Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N - 801

Orlando, Flo rida 32801

For Respondent: Clifford Esterson, pro se

3648 San Simeon Circle

Weston, Florida 33331

STATEMENT OF THE ISSUE S

Whether Respondent committed the violations alleged in the

Administrative Complaint , and, if so, the penalty that should be

imposed.

PRELIMINARY STATEMENT

On November 18, 2010 , Petitioner Department of Business and

Professional Regulation, Division of Real Estate , filed an

Administrative Complaint aga inst Respondent, Clifford Esterso n .

The Administrative Complaint, which consists of three counts,

alleges violations of various statu tes and rules governing

Florida real estate sales associates. Respondent timely filed a

request for a formal administrative hearing, which was forwarded

t o the Division of Administrative He arings ("DOAH") on

January 10, 2011 . This cause was initially assigned to

Administrative Law Judge John G. Van Laningham, who scheduled a

final h eari ng for March 24, 2011 , at 1:00 p.m.

On March 1, 2011, Respondent fi led a motion to continue the

final hearing . Petitioner objected to the request, arguing that

Respondent was "put on notice of the formal hearing by service

in January 2011 . . . [and] Respondent's failure to timely

prepare is not a valid reason for a cont inuance." On March 9,

2011, Judge Van Laningham denied the motion by written order.

The instant matter was subsequently transferred to the

undersigned for further proceedings.

At the outset of the March 24, 2011, final hear in g,

Petitioner requested a continuance on the ground that James

Gi lchrest, a witness residing in South Carolina who was critical

to its case, would not be able to offer sworn testimony by

telephone because the witness had not been advised th at it was

necessary for a notary public to administer an oath to him at

the remote location. 1 Noting that Petitioner had previously

objected to Respondent's motion for continuance, as well as the

fact that such a dilemma could have been avoided had Petitioner

discussed the issue with the witness prior to the day of the

hearing , the undersigned denied Petitioner's request to

continue . The undersigned did, however, allow Petitioner a

reasonable amount of time to confer with Mr. Gilchrest by

telephone and assist him in locating a notary .

After a b rief recess, Petitioner's counsel advised the

undersigned that Mr. Gilchrest, who was en route to a local bank

to locate a notary, would be calling into the hearing shortly.

In the meantime, Petitioner presented the testimony of one

witness, Ms. Krystal C ordo, an investigator employed by the

Department of Business and Professional Regulation. Petitioner

also introduced two exhibits into evidence, numbered 5 and 6.

Following the presentation of Ms. Cordo's testimony,

Mr. Gilchrest and a notary p ublic telephoned the final hearing

location . Strangely, the notary informed the undersigned and

the parties that although he wanted to help Mr. Gilchrest, he

did not believe that South Carolina notaries public were

authorized to administer oaths. After a short discussion, at

the conclusion of which the notary unequivocally stated that he

could not place Mr. Gilchrest under oath, the undersigned ended

the call.

A few minutes later and with the undersigned' s consent,

counsel for the Petitioner telephoned the bank and

unsuccessfully attempted to convince the bank manager ÏÏ by

referencing the appropriate section of the South Carolina notary

handbook ÏÏ that notaries are indeed authorized to administer

oaths. At that point, Petitioner's counsel excused

Mr. Gilchrest, indicating that he did not wish to inconvenience

him further. Petitioner renewed its request to continue the

hearing, whi ch the undersigned again denied on the basis that

Petitioner's issue with Mr. Gilchrest could have easily been

avoide d.

Following the denial of the renewed motion to continue,

Petitioner correctly c onceded that the evidence at its disposal

was insufficient to prove the material allegations of the

Administrative Complaint, and that the undersigned could prepare

an order recommending that the charges against Respondent be

dismis sed. Petitioner further agre ed, in light of its

concession, that it did not intend to order a copy of the

transcript or file a proposed recommended order.

At the conclusion of the hearing, the undersigned advised

the parties that a recommended o rder would be issued by Tuesday,

March 29, 2011.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

licensure and regulation of real estate brokers and salespersons

in the Stat e of Florida pursuant to chapters 455 and 475,

Florida Statutes.

2. At all times material to this action, Re spondent was

licensed a real estate sales associate in the State of Florida.

3. On November 18, 2010, Petitioner filed an

Administrative Comp laint against Responden t, which reads in

pertinent part:

5. On or about October 5, 2007, Respondent

prepared a sales purchase contract on behalf

of Anne Vincent (Buyer) and Donald Gilchrest

(Seller) for a property known as 6521 SW 9th

Street , Pembroke Pin es, Florida 33023 for

$250,000.

6. Respondent represented in the sales and

purchase contract for the Subject Property

that a $2,000 deposit was held in escrow by

Title Sense Inc.

7. Respondent communicated to the Sellers

that he had received a check in the amount

of $2,000 from the Buyer.

* * *

10. Respondent failed to place with

Respondent's registered employer any funds

entrusted to Respondent by the Buyer for the

Subject Property.

* * *

12. Respondent failed to deliver a copy of

the sales and purchase contract to

Respondent's Broker, Edgar Rhenals.

4. Based upon th e foregoing, Petitioner alleged t hat

Respondent violated section 475.25 (1)(b), (1)(e), and (1)(k),

Florida Statutes, as well as Florida Administrative Code Rule

61J2 - 14.009.

5. As discussed in the preliminary statement of this

Recommended Order, Petitioner's sole witness at the final

hearing was Ms. Krystal Cordo, an investigator employed with the

Division of Real Estate . Other than Ms. Cordo's description of

statements made by Respondent during the investigation ÏÏ in which

Respondent denied all wrongdoing ÏÏ Ms. Cordo's testimony and

investigative report consisted entirely of hearsay, with no

applicable hearsay exceptions. In light of the complete absence

of incriminating non - hearsay evidence, Petitioner properly

conceded t hat Respondent's guilt could not be established in

connection with any of the charges. 2

6 . Accordingly, t he undersigned finds, as a matter of

ultimate fact, that Respondent is not guilty of Counts I, I I,

and III of the Administrative Complaint.

CONCLUSIONS OF LAW

7 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to section 120.57(1), Florida Statutes .

8 . This is a disciplinary p roceeding against Respondent's

licen se. Accordingly, Petitioner must prove the allegations in

the Administrative Complaint by clear and convincing evidence.

Dep't of Ba nking and Fin., Div. of Sec s . & Investor Prot . v.

Osborne Sterne, Inc. , 670 So. 2d 932 , 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 , 294 (Fla. 1987).

9 . Clear and convincing evidence:

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony mu st be precise

and lacking in confusion as to the facts in

issue. The evidence must be of such a

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 establ ished.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994 )( quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) ) .

10 . In Count I of the Administrative Complaint, Petitioner

alleges that Respondent violated section 475.25(1)(b), which

subjects a real estate licensee to discipline for committing

" fraud, misrepresentation, concealment, false promises, false

pretenses, dishonest dealing by trick, scheme, or device,

culpable negligence, or breach of trust in any business

transaction ."

11. In Co unt II, Petitioner alleges that Respondent

violated Florida Administrative Code Rule 61J2 - 14.009 ÏÏ which

requires a real estate sales associate who receives a deposit to

deliver it to the broker or employer by the end of the next

business day ÏÏ and is theref ore subject to discipline pursuant to

section 475.25(1)(e).

12 . As its final charge, Petitioner alleges in Count III

that Respondent viola ted section 475.25(1)(k), which requires,

in relevant part, that a real estate sales associate place a

deposit wi th his or her registered employer.

13. Based upon the findings of fact contained herein,

Petitioner failed to demonstrate Respondent's guilt by clear and

convincing evidence. Accordingly, Respondent is not guilty of

Counts I, II, and III of the Admini strative Complaint.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that Petitioner enter a final order dismissing

the Administrative Complaint against Respondent.

DONE AND ENTERED this 28th d ay of March, 2011 , in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWARD T. BAUER

Administrative Law Judge

D ivision 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 March, 2011 .

ENDNOTE S

1 To his credit, Petitioner's counsel was aware of Florida

Administrative Code Rule 28 - 106.213(5)(b), which provides that

for "any testimony taken by means of . . . telephone, a notary

public must be physically present with the witness to administer

the oath." From counsel's comments, however, it seems that at

some point prior to the day of the final hearing, the witness

called a telephone number listed on the subpoena and received

erroneous information from an unknown person. Petitioner's

phone number is one of those listed on the subpoena.

2 Dieguez v. Fla. Dep't of Law Enf. , Crim. Just. Stands. &

Training Comm'n , 947 So. 2d 591, 594 (Fla. 3d DCA 2007) ("Under

the evidence which can support a factual

finding includes evidence which is not hearsay, and evidence

which is admissible under a hearsay objection").

COPIES FURNISHED :

Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulat ion

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

Clifford Esterson

3648 San Simeon Circle

Weston, Florid a 33331

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Str eet

Tallahassee, Florida 32399 - 0792

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N80 1

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 must be filed with the

agency that will issue the final order in this case.