STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-185

)

ROBERT. R. HOOD )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, assigned Hearing Officer of the Division of Administrative Hearings, on April 5, 1979, beginning at 11:25 a.m. in the Aviation Authority Board Room on the Third Floor, Blue Side, of the Tampa Airport Terminal in Tampa, Florida.

APPEARANCES

For Petitioner: Kenneth M. Meer, Esquire

Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Roger E. Whigham, Esquire

2402 West Cleveland Post Office Box 438B Tampa, Florida 33677

ISSUE

Whether Respondent Hood placed an instrument on record in violation of Section 475.42(1)(j), Florida Statutes, and should have his license suspended, or whether Respondent should be otherwise disciplined.

FINDINGS OF FACT

1. Respondent Robert R. Hood holds real estate broker's license Number 0041003 and is a non-active real estate broker residing in Tampa, Florida. He transferred his license to non-active broker status on March 28, 1977.

   
   

2. An administrative complaint was filed against the Respondent alleging that he filed a false and ineffective affidavit attached to a settlement agreement and stipulation on February 24, 1977, which clouded the title to certain property, and which was filed for the purpose of coercing the payment of money to Respondent. Respondent requested an administrative hearing.

   
   

3. William C. Mayo was the trustee, one of the beneficiaries, and part- owner of real property in Santa Rosa County, Florida, by virtue of a trust

   agreement executed between Mayo, Respondent Hood, and others on October 31, 1973. Part of the agreement was that the agreement would not be recorded. Disputes arose between the parties. On December 31, 1975, a settlement agreement and stipulation was entered into and the property was to have been sold. The property was not sold, and the parties continued to disagree.

   Thereafter, on November 2, 1976, a second settlement agreement and stipulation was entered into which was to have superseded the agreement of December 31, 1975. This second stipulation and agreement was executory and contingent, however, upon a release of Respondent Hood from a certain promissory note, and upon the payment of $5,000.00 after six (6) months or the sale of the subject property. The agreement also contained a statement that "Mayo shall transfer subject property to Jeffrey Warren, as trustee" after February 27, 1976.

   Respondent Hood was to have paid for the preparation of the documents and recordation, which he did not do or offer to do, and the transfer was not made. The agreement and stipulation of November 2, 1976, was intended to act as a general release by the Respondent of the subject property and a settlement of the complicated disputes between Respondent Hood and Mr. Mayo. Part of the November 2nd agreement and stipulation was completed with Respondent Hood being released from the promissory note, but the $5,000.00 had not been paid as of the date that Respondent Hood recorded the affidavit and agreement and stipulation of December 31, 1975, and the property had not been sold.

   
   

4. A suit was filed (Case No. 77-2254) by William Charles Mayo against Respondent Hood, and a temporary injunction dated March 7, 1977, was entered. among other things, the court found that the recording by the Respondent of the affidavit and stipulation of December 31, 1975, in the county where the real property was located affected the title to the property, and that the recording was in violation of Florida Statute 475.42(1)(j). Thereafter, the temporary injunction was modified, and an order transferring the case to another division was entered. The temporary injunction granted on March 7, 1977, was superseded by the order, which did not refer to the recordation by Respondent Hood of the affidavit therein held to be in violation of Section 475.42(1)(j), Florida Statutes.

   
   

5. On April 7, 1977, Respondent Hood was paid $5,000.00 by cashier's check pursuant to the agreement and stipulation of November 2, 1976.

   
   

6. Based on the testimony adduced at the trial and a review of the evidence submitted, it is obvious that the business arrangements between Respondent Hood and Mr. Mayo were beset by distrust, which led to bitter disagreement and three law suits. Neither party performed all their agreements, and neither party kept the other informed as to transactions involving the original trust agreement.

   
   

7. Money was owed by Mr. Mayo to Respondent Hood at the time Respondent Hood filed the questioned affidavit together with the agreement of December 31, 1975, in the public records of Santa Rose County, Florida. This instrument added to the clouding of the title of the real estate involved, and the recordation was contrary to the agreement contained in the original trust agreement of 1973. However, notice was already on record of the trust agreement by virtue of a memorandum of assignment of beneficial interest trust agreement filed by William Charles Mayo on July 3, 1975, in Santa Rosa County, Florida, contrary to the agreement executed between the parties on October 31, 1973.

   
   

8. Respondent Hood was not acting as a real estate broker or salesman, although he was a licensed broker, when he recorded the affidavit and agreement and stipulation on the public records of Santa Rosa County, Florida. The

   Instruments did cloud the title to real property, but they were filed for the purpose of collecting money owed to him personally.

   
   

9. Final arguments and memoranda of law were filed by both parties, and said instruments were considered in the preparation of this Order.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of this cause pursuant to Section 120.57, Florida Statutes.

    
    

11. Section 475.42 Violations and penalties.-- provides as follows:

    
    

    1. VIOLATIONS.--

       (j) No real estate broker or salesman shall place, or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing which purports to affect the title of, or encumber, any real property, if the same is known to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution or recording

       whereof has not been duly authorized by the owner of the property, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose.

       
       

12. The foregoing statute does not limit its application to cases in which the licensee is acting as a real estate broker or salesman. The Respondent recorded the instruments, the recording of which were not authorized by the owner of the property, in order to coerce the payment of money, contrary to the foregoing statute.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, Robert R. Hood, be reprimanded.

DONE and ORDERED this 6th day of June, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Kenneth M. Meer, Esquire Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Roger E. Whigham, Esquire 2402 West Cleveland

Post Office Box 438B Tampa, Florida 33677

Docket for Case No: 79-000185

Orders for Case No: 79-000185