Respondents. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 1 November 1979 at Fort Lauderdale, Florida.
For Petitioner: Manuel E. Oliver, Esquire
For Respondents Gregory K. Jones, Esquire (except Lindow): 2691 East Oakland Park Boulevard
For Respondent Allen L. Lindow Lindow: 213 Rose Drive
By Administrative Complaint filed 17 May 1979 the Florida Real Estate Commission, now the Florida Board of Real Estate, Petitioner, seeks to revoke, suspend or otherwise discipline the licenses of the above-named Respondents. As grounds therefor it is alleged that in September and October, 1978, Quality Rentals, Inc. engaged in the business of brokering real estate while not properly registered; and that the individuals named as Respondents were guilty of fraud, misrepresentation, false pretenses, dishonest dealing, trick, scheme or device in making false affidavits while registering Quality Rentals with the Commission.
At the hearing, two of the Respondents were called by Petitioner, one witness was called by Respondents and 14 exhibits were admitted into evidence. Seven of the exhibits were depositions of witnesses located more than 100 miles from the hearing.
At all times here involved, Respondents Robert P. Powers and Allen L. Lindow were real estate brokers registered with Petitioner, Alan M. Levy was a salesman registered with Petitioner, and Quality Rentals, Inc. was registered as a corporate broker.
During the summer of 1978 Respondent Levy became interested in acquiring a corporate broker and learned from Cynthia Odeneal that she had an inactive corporation that she could transfer to him. This corporation, Quality Rentals, Inc., was registered with the Secretary of State in 1977, but the authorized stock had never been issued nor had the corporation ever engaged in business. Ms. Odeneal assigned her subscription rights to the stock in the corporation to Levy by letter of 15 September 1978 which was received by him in October 1978.
At the time Quality Rentals was incorporated Ms. Odeneal was doing business in Gainesville as Gates Rentals. The mailing address supplied to the Secretary of State for Quality Rentals, Inc. was Ms. Odeneal's residence address. Rose J. Vines was employed by Ms. Odeneal in Gator Rentals.
In the summer of 1978 Ms. Odeneal contemplated moving Gator Rentals to a new address in Gainesville, but after she and Ms. Vines visited those offices, Ms. Odeneal decided to close Gator Rentals.
On 15 September 1978 Ms. Vines leased this office space she and Ms. Odeneal had looked at and opened a lease referral service under the name of Quality Rentals. No authorization to use the name Quality Rentals was given by Ms. Odeneal and when she became aware of the use of her corporate name, she told Ms. Vines to stop. This occurred after Ms. Odeneal had transferred the subscription rights to Quality Rentals, Inc. stock to Levy.
Ms. Vines paid the first month's rent in September, but no further rental payments were made. The second-month rental, due October 5, 1978, was extended until 15 October. When payment was not received then, the lease was terminated.
During the period of September and October 1978, Rose Vines d/b/a Quality Rentals, advertised a lease referral service and charged fees to allow customers to look at lists of places for rent.
In November 1978 Levy, holding subscription rights to the corporation, entered into discussions with Respondent Lindow for the latter to serve as broker and active firm member of Quality Rentals, Inc. Lindow, with the assistance of Levy, prepared and submitted the application for registration of Quality Rentals, Inc. (Exhibit 1) dated 15 November 1979.
Lindow never performed any broker functions or received any compensation from Quality Rentals. By letter dated 8 January 1979 Lindow resigned as active firm member of Quality Rentals, Inc. By application dated 11 January 1979 Robert Powers applied for registration as active firm member of Quality Rentals, Inc.
On December 5, 1978 the Secretary of State dissolved Quality Rentals, Inc. for failure to file the annual corporation report due before July 1978. This dissolution, effective 8 December 1978, was mailed to Quality Rentals at the former address of Gator Rentals, then closed.
Notice of this dissolution was not received by Levy or anyone at Quality Rentals, Inc. until after the corporate report submitted January 1979 was received by the Secretary of State's office. Quality Rentals was then notified of the dissolution and the additional fees necessary to restore the corporation.
Upon receipt of this information, the attorney for Quality Rentals submitted the necessary documentation and fees and Quality Rentals, Inc. was restored to good standing.
At no time during this period was any Respondent aware of the activities of Ms. Vines in Gainesville under the name of Quality Rentals.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
No evidence was submitted which in any way linked Respondents to the operation of Ms. Vines in Gainesville under the name of Quality Rentals. Ms. Vines had no authority to operate under the name of Quality Rentals, Inc. and when knowledge of this unauthorized activity came to the attention of Ms. Odeneal she told Ms. Vines to cease operating under this name.
Accordingly there is no evidence that any of the Respondents operated Quality Rentals, Inc. as a corporate broker before it was duly registered to so operate.
No evidence was presented to show any Respondent was aware of the corporate dissolution for failure to file 1978 annual report at the time the applications for registration with Petitioner were submitted.
Failure of the Secretary of State to send notice of dissolution of the corporation is jurisdictional, Adams v. Travel, Inc., 220 So.2d 420 (Fla. 1st DCA 1969), and would be grounds to invalidate the dissolution. Regardless, the restoration of Quality Rentals, Inc. to good corporate standing is retroactive and makes the otherwise unauthorized acts of Quality Rentals, Inc. after its dissolution, legal.
From the foregoing it is concluded that Quality Rentals, Inc. never acted as a corporate broker in Gainesville, Florida and the activities of Ms. Vines were not associated with the real Quality Rentals, Inc. It is further concluded that at the time the applications for registration were submitted by the various Respondents they had no basis for knowing that an order of dissolution for Quality Rentals, Inc. had been issued by the Secretary of State and no fraud or concealment was committed by these Respondents. The subsequent restoration of Quality Rentals, Inc. to good standing relates back and makes the representations regarding the standing of Quality Rentals, Inc. contained on these applications correct. It is therefore
