STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF REAL )

ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2235

)

O.B. LINKOUS and O.B. LINKOUS ) REALTY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on April 27, 1981. The Division of Administrative Hearings received the transcript of proceedings on May 11, 1981. At the hearing, the parties were represented by counsel:

APPEARANCES

For Petitioner: S. Ralph Fetner, Jr., Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Howard Hadley, Esquire

827 Deltona Boulevard

Deltona, Florida 32725

By administrative complaint P.D. 19677, petitioner alleged that respondent

1. Likous acted as an officer of and broker for the corporate respondent at all pertinent times; that both respondents were duly licensed at all pertinent times; that Linkous represented the owner of a motel and apartments in a sale of those properties, on or about December 1, 1973, to Delmar D. and Lucy Carter; that the Carters assumed indebtedness secured by mortgages on the property they bought, including second and third mortgages in favor of the corporate respondent; that the Carters also, as part of the same transaction, granted Linkous an exclusive right to resell the property within the next five years; that on "January 25, 1979 Mr. Carter hand-delivered a check to . . . Linkous . .

   . representing the mortgage payment . . . for the month of January . . . [and] advised him that there were not sufficient funds to cover the check but that he was going to make a deposit the very next day, at which time there would be sufficient funds to cover same, and requested that Mr. Linkous not cash the check until after he had deposited the additional funds"; that "Linkous advised Mr. Carter that there would be no problem in that regard because he would deposit the check into his own bank account and it would take several days for the check to clear Mr. Carter's bank"; that Linkous instead "immediately took the check to Mr. Carter's bank and presented it, "persuaded a teller to stamp

   the check NSF and caused the corporate respondent on "or about February 7, 1979

   . . . [to file] a mortgage foreclosure complaint against Mr. and Mrs. Carter . .

   . in the Circuit Court," which was eventually dismissed voluntarily when the Carters "acceded to [respondent's] coercion," and granted respondents an additional "five year exclusive right of sale listing on the motel and apartment properties," causing the Carters hardship and expense; and that respondents "have been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction, in violation of Subsection 475.25(1)(a), Florida Statutes (1978)."

   
   

   FINDINGS OF FACT

   
   

   1. In the fall of 1973, Mr. and Mrs. Delmar D. Carter purchased the Buccaneer Motel and Woodside Apartments [the motel] from C.E.K., Inc., whom respondents represented in the sale. Respondents agreed to accept less from C.E.K., Inc., as their commission on the sale, that they might have otherwise, because the Carters agreed to give respondents the exclusive right to resell the motel for a period of five years. Two years after they purchased the motel, the Carters asked O.B. Linkous to try to sell the motel, but the Carters sell held the motel when the resale agreement expired in late 1978.

      
      

   2. One of the obligations assumed by the Carters in exchange for the motel was secured by a mortgage that C.E.K., Inc., had executed in favor of O.B. Linkous Realty, Inc., on December 14, 1972. Petitioner's Exhibit No. 2. This assumed obligation required the Carters to make certain monthly payments to the corporate respondent including a payment of $862.19 on January 1, 1979. Under the mortgage agreement, the entire principal (originally $88,247.93) would become due if a "default continue for a space of 30 days." Petitioner's Exhibit No. 2.

      
      

   3. On January 25, 1979, Mr. Carter delivered to Mr. Linkous a check in the amount of $862.19, Petitioner's Exhibit No. 1, as payment of the amount due on January 1, 1979. When he handed the check to respondent Linkous, Mr. Carter told him that the funds in the account on which the check was drawn were insufficient for the drawee to pay the check, but that he would deposit sufficient funds on the following day. Respondent Linkous answered that he saw no problem since he intended to deposit the check in his own account in another bank and assumed it would be at least a day before the check was presented to the drawee. On the following day, Mr. Carter deposited $865.96 in the account on which the check was drawn. Petitioner's Exhibit No. 3. On January 31, 1979, the balance in the account was $1,000.32. Petitioner's Exhibit No. 3.

      
      

   4. Instead of depositing the check, respondent Linkous took the check, on the same day he received it, to the Flagship First National Bank of Ormond Beach, on which it was drawn, and persuaded a teller there to stamp it so as to indicate that it had been dishonored because sufficient funds were not on deposit. On February 7, 1979, a mortgage foreclosure complaint was filed against the Carters and C.E.K., Inc., (as holder of a junior mortgage), in which respondents' attorney alleged that the Carters had "defaulted under the note and mortgage by failing to pay the payment due January 1, 1979, and all subsequent payments." Petitioner's Exhibit No. 2.

      
      

   5. The Carters retained counsel who filed an answer and counterclaim in which it was alleged, inter alia, that Linkous "deliberately with premeditated design, deceived and tricked [the Carters]." Petitioner's Exhibit No. 2. After these pleadings had been filed, the Carters agreed to respondents' counsel's

      suggestion that they grant the corporate respondent the exclusive right to sell the motel for another five-year period in exchange for an end to the litigation, and executed an agreement to that effect. Petitioner's Exhibit No. 6.

      
      

   6. The parties stipulated that both respondents hold real estate licenses issued by petitioner.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The evidence clearly and convincingly established that respondent O.B. Linkous and his corporate alter-ego O.B. Linkous Realty, Inc., were "guilty of .

      . . dishonest dealing by trick, scheme or device . . . in [a] business transaction in this state . . . " Section 475.25(1)(b), Florida Statutes (1979). The evidence showed that O.B. Linkous caused the corporate respondent to file a spurious lawsuit against the Carters as part of a scheme to gain employment for both respondents as real estate brokers.

      
      

   8. The victims of this scheme were members of the public who were not themselves licensees. This circumstance distinguishes the present case from Peck v. Florida Real Estate Commission, 204 So.2d 355 (Fla. 2d DCA 1967), and Horne v. Florida Real Estate Commission, 163 So.2d 515 (Fla. 1st DCA 1964), which were cited by respondents' counsel at the final hearing in arguing that petitioner had no jurisdiction to take disciplinary action against respondents on the grounds charged in the administrative complaint. In the Peck case, moreover, the "record show[ed] that [the licensee] was not attempting to cheat or defraud any one," Peck v. Florida Real Estate Commission, 204 So.2d 355, 356 (Fla. 2d DCA 1967), which makes the Peck case very different from the present case.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondents' licenses for a period of five years. DONE AND ENTERED this 10th day of June, 1981, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1981.

COPIES FURNISHED:

S. Ralph Fetner, Jr., Esquire

130 North Monroe Street Tallahassee, Florida 32301

Howard Hadley, Esquire 827 Deltona Boulevard

Deltona, Florida 32725

Docket for Case No: 80-002235

Orders for Case No: 80-002235