95-004815 Division Of Real Estate vs. John P. Wickersham And Aladdin Real Estate Of Rockledge, Inc. Status: Closed Recommended Order on Thursday, January 18, 1996.

Summary: Broker who maintained records necessary to satisfy substantive requirements for escrow reconciliation, but not on approved form, is not guilty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4815

)

JOHN P. WICKERSHAM and ALADDIN )

REAL ESTATE OF ROCKLEDGE, INC., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry,

a duly designated Hearing Officer of the Division of Administrative Hearings, on

December 15, 1995, in Melbourne, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation

Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802

For Respondents: John P. Wickersham, pro se,

Aladdin Real Estate of Rockledge, Inc.

966 South US 1

Rockledge, Florida 32955

STATEMENT OF THE ISSUES

The issues for determination are whether Respondents violated Florida

Administrative Code Rule 61J2-14.012(2) 1/ and Section 475.25(1)(e) Florida

Statutes, 2/ by committing the acts alleged in the Administrative Complaint

and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondents on June

26, 1995. Respondents timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of its

investigator and submitted five exhibits for admission in evidence. Respondents

called Mr. John P. Wickersham as their only witness and submitted four exhibits

for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each,

are set forth in the record of the formal hearing. None of the parties

requested a transcript of the formal hearing.

Petitioner timely filed its proposed recommended order ("PRO") on January

8, 1996. Respondents timely filed their PRO on December 22, 1995. Proposed

findings of fact in the parties' PROs are addressed in the Appendix to this

Recommended Order.

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, John P. Wickersham ("Wickersham"), is licensed as a real

estate broker under license number 0095775. Respondent, Aladdin Real Estate of

Rockledge ("Aladdin"), is a Florida corporation registered as a real estate

broker under license number 0213244. Wickersham is the qualifying broker and

corporate officer for Aladdin.

3. Respondents maintain their escrow account at the Barnett Bank of Cocoa.

On April 28, 1994, Ms. Marie Ventura, Petitioner's investigator, audited

Respondents' escrow account.

4. Ms. Ventura concluded that Respondents' escrow account had a liability

of $46,287.30 and a reconciled balance of $43,557.26. Ms. Ventura concluded

that Respondents' escrow account had a shortage of $2,730.04.

5. Respondents provided Ms. Ventura with additional information. On May

16, 1994, Ms. Ventura concluded that Respondents' escrow account had a liability

of $43,546.21 and a reconciled balance of $42,787.26. Ms. Ventura concluded

that Respondents' escrow account had an excess of $11.05.

6. Respondents never had a shortage in their escrow account. Respondents

maintained an excess of $11.05 in their escrow account since September, 1993.

7. In September, 1993, Respondents converted their method of bookkeeping

to a computer system. The computer system failed to disclose an excess of

$11.05 due to Respondents' misunderstanding of the appropriate method of

labeling inputs to the software system. Respondents discovered and corrected

the error prior to the formal hearing.

8. Respondents properly made and signed written monthly reconciliation

statements comparing their total escrow liability with the reconciled bank

balances of their escrow account. Although Respondents did not use the form

suggested in Rule 61J2- 14.012(2), Respondents satisfied the substance of the

requirements for record keeping and reporting.

9. Respondents maintained the information required in Rule 61J2-14.012(2)

in bank statements, ledger cards, and checkbooks. At the time of the formal

hearing, Respondents presented the information in a form that complied with the

requirements of Rule 61J2-14.012(2).

10. The shortage determined by Petitioner on April 28, 1994, was caused,

in part, by errors made by Petitioner's investigator. It was the investigator's

first audit, and the information provided by Respondents was not in an easily

discernible form. However, Respondents never withheld any information, and

Respondents maintained and provided all information required by applicable law.

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 failed to satisfy its burden of proof in this proceeding.

Petitioner did not show by clear and convincing evidence that Respondent

violated Section 475.25(1)(b) by failing to make a written statement containing

the information required in Rule 61J2-14.012(2). Petitioner's evidence was less

than clear and convincing.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a Final Order finding Respondent not

guilty of violating Section 475.25(1)(b) and Rule 61J2-14.012(2).

RECOMMENDED this 18th day of January, 1996, in Tallahassee, Florida.

___________________________________

DANIEL MANRY, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of January 1996.

ENDNOTES

1/ All references to rules are to rules promulgated in the Florida

Administrative Code as of the date of this Recommended Order.

2/ All section and chapter references are to Florida Statutes (1993) unless

otherwise stated.

APPENDIX

Petitioner's Proposed Findings of Fact

1.-6. Accepted in substance

7. Rejected as not supported by credible and persuasive

evidence

Respondents' Proposed Findings of Fact

1. Rejected as irrelevant and immaterial

2.-4. Rejected as recited testimony

5. Rejected as conclusion of law

6.-10. Rejected as recited testimony

COPIES FURNISHED:

Darlene F. Keller, Division Director

Division of Real Estate

Department of Business and

Professional Regulation

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

Steven W. Johnson, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802

John P. Wickersham

Aladdin Real Estate of Rockledge, Inc.

966 South US 1

Rockledge, Florida 32955

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF REAL ESTATE

Petitioner

vs. CASE NO. 94-82961

DOAH NO. 95-4815

JOHN P. WICKERSHAM and

ALADDIN REAL ESTATE

OF ROCKLEDGE, INC.

Respondents

______________________________/

FINAL ORDER

On March 19, 1996, pursuant to s.120.57(1), Florida Statutes, the Florida

Real Estate Commission heard this case to issue a Final Order.

Hearing Officer Daniel Manry of the Division of Administrative Hearings

presided over a formal hearing on December 15, 1995. On January 18, 1996, he

issued a Recommended Order, a copy of which is attached hereto as Exhibit A and

made a part hereof.

The Petitioner filed Exceptions to the Recommended Order. A copy of said

Exceptions is attached hereto as Exhibit B and made a part hereof.

After completely reviewing the record and being otherwise fully advised,

the Commission accepts the Petitioner's Exceptions to the Hearing Officer's

Recommended Order.

The Commission finds that, said Exceptions are based on competent and

substantial evidence. Accordingly, the Commission rejects the Hearing Officer's

Finds of Fact and Conclusions of Law and incorporates the Petitioner's

Exceptions into the Conclusions of Law.

Based on the foregoing, the Commission finds the Respondents guilty of the

violations cited in Counts VII and VIII of the Administrative Complaint.

The Florida Real Estate Commission therefore ORDERS that the Respondents be

reprimanded.

The Commission further ORDERS that Respondent John P. Wickersham pay a $350

administrative fine within 30 days of the filing date of this Order, or his

license shall be suspended until such time as the fine is paid in full.

This Order shall be effective 30 days from date of filing with the Clerk of

the Department of Business and Professional Regulation. However, any party

affected by this Order has the right to seek judicial review, pursuant to

5.120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate

Procedure.

Within 30 days of the filing date of this Order, review proceedings may be

instituted by filing a Notice of Appeal with the Clerk of the Department of

Business and Professional Regulation at 400 West Robinson Street, Suite 309,

Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with

applicable filing fees, must be filed with the appropriate District Court of

Appeal.

DONE AND ORDERED this 19th day of March 1996 in Orlando, Florida.

__________________________

Henry M. Solares, Director

Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Certified

Mail to John P. Wickersham and Aladdin Real Estate of Rockledge, Inc., 966 South

US 1, Rockledge, Florida 32955; by regular U.S. Mail to Hearing Officer Daniel

Manry, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee,

Florida 32399-1550; and a copy provided to Steven Johnson, Esquire, DBPR, Post

Office Box 1900, Orlando, Florida 32801, this 16th day of April 1996.

__________________________

Brandon L. Moore