Morris v. Department of Professional Regulation

• Decision Date: 01 August 1985
• Docket Number: No. 84-1079,84-1079
• Citation: 10 Fla. L. Weekly 1867,474 So.2d 841
• Parties: 10 Fla. L. Weekly 1867 H. Ernest MORRIS, Sr., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, et al., Appellee.
• Court: Florida District Court of Appeals

Page 841

474 So.2d 841

10 Fla. L. Weekly 1867

H. Ernest MORRIS, Sr., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, et al., Appellee.

No. 84-1079.

District Court of Appeal of Florida Fifth District.

Aug. 1, 1985.

Rehearing Denied Aug. 27, 1985.

W.C. Hutchison, Jr. of Hutchison & Mamele, Sanford, for appellant.

James R. Mitchell, Contract Atty., Dept. of Professional Regulation, Div. of Real Estate, Orlando, for appellee.

SHARP, Judge.

Morris appeals from an order of the Florida Real Estate Commission which suspended his real estate license as a broker for one year, pursuant to section 475.25, Florida Statutes (1983). He argues the commission erred by substituting its finding of fraud on Morris' part for that of a Department of Professional Regulation hearing officer. We agree and reverse.

In this case, the department filed an administrative complaint charging Morris with violating section 475.25(1)(b), Florida Statutes:

(1) The commission may deny an application for licensure, registration, or permit, or renewal thereof; may suspend a license or permit for a period not exceeding 10 years; may revoke a license or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, or any or all of the foregoing, if it finds that the licensee, permittee, or applicant:

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(b) Has been 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; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design, or scheme. It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public.

The complaint alleged that Morris had written a check on an account with insufficient funds for a deposit for the purchase of land, stopped payment, and refused to make good on it. It alleged Morris was "guilty 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) by that action.

The facts in the record were in bitter conflict. The hearing officer resolved most of them in favor of the department. He found that Morris entered into a contract to purchase real property, for his own purposes, and that Morris was unconditionally obligated for the deposit. Morris gave the seller's representatives a check for the $37,500.00 required deposit written on an account which he knew contained at that time insufficient funds.

With regard to fraud in the issuance of the check, the hearing officer specifically found:

He [Morris] made a successful bid on a rather substantial tract of land, gave a deposit in the amount of $37,500.00 without having funds in his bank to cover same, decided to back out of the deal, and then stopped payment on this check. The fact that insufficient funds were in his bank account when the check was drawn is immaterial for the check was tendered on a Saturday, and had he intended to follow through on the transaction, he could have deposited, and indeed had access to, sufficient funds the following Monday morning to cover the same.

The hearing officer concluded that although Morris might be civilly liable for the deposit, ¹ "there is no evidence that Morris entered into the transaction with any dishonest or illicit intent, or with the desire to misrepresent any material fact to the seller." The commission accepted the hearing officer's findings of fact, but it concluded that Morris' issuance of a check drawn on insufficient funds constituted a violation of section 475.25(1)(b) as a matter of law. We disagree.

Passing a worthless check may be probative of a finding of fraudulent intent. See Santeniello v. Department of Professional Regulation, 432 So.2d 82 (Fla. 2d DCA), review denied, 438 So.2d 832 (Fla.1983); see also Peck v. Florida Real Estate Commission, 204 So.2d 355 (Fla. 2d DCA 1967). But it clearly is not determinative of fraud, as a matter of law. The finding of absence of fraudulent intent in this case is a finding of fact. See generally 27 Fla.Jur.2d, Fraud and Deceit §§ 41, 42 (1981); see also School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981) (the question of motive is one of fact); Bouchelle v. Florida Real Estate Commission, 188 So.2d 60 (Fla. 1st DCA 1966), cert. dismissed, 200 So.2d 806 (Fla.1967); cf. Kout v. Department of Professional Regulation, ...