STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-175

)

ROBERT C. AKERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, held a formal hearing in the above case on April 10, 1981, in Brooksville, Florida.

APPEARANCES

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

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Robert C. Akers in pro se

Route 9, Box 2301

Highway 50 East

Brooksville, Florida 33512

By Administrative Complaint dated December 30, 1980, the Petitioner, Department of Professional Regulation, has charged Respondent, Robert C. Akers, with having violated portions of Chapter 574, Florida Statutes, and certain rules promulgated thereunder, for which Respondent's real estate license should be suspended or revoked, or other disciplinary action imposed. In summary form it is alleged that (1) Respondent prepared and executed a mortgage loan application to Farmers Home Administration (FHA) on behalf of an individual who he falsely represented to be his employee, thereby violating Section 475.25(1)(a), Florida Statutes (1977), /1 and (2) Respondent has maintained a branch real estate office in Brooksville, Florida, without registering the same with Petitioner as required by Section 475.24, Florida Statutes (1979) and Rules 21V - 8.01, 21V - 8.02, and 21V - 10.08, Florida Administrative Code.

Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On January 12, 1981, the Department forwarded the matter to the Division of Administrative Hearings and requested a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated March 3, 1981, the final hearing was set for April 10, 1981, in Brooksville, Florida.

At the final hearing, Petitioner called Roseann Iannaccone, Drema Colleen Naylor and Phillip W. Labarge as its witnesses and offered Petitioner's Exhibit 1, which was received into evidence. Respondent testified on his own behalf and offered Respondent's Exhibits 1 and 2. Respondent's Exhibit 1 contains three letters attesting to Respondent's good character and reputation while Exhibit 2 is an affidavit from the former Supervisor of the Farmers Home Administration in Hernando County; both exhibits were received into evidence by agreement of the parties.

The transcript of hearing was filed on May 11, 1981. The parties were given an opportunity to file proposed findings of fact and conclusions of law; however, both parties waived their right to do so.

During the hearing Petitioner withdrew Count II of its complaint; remaining at issue is whether Respondent has violated Section 475.25(1)(a), Florida Statutes (1977) by making false and misleading statements on an application filed with the Farmers Home Administration on behalf of another individual.

After considering all of the evidence, the following facts are determined.

FINDINGS OF FACT

1. Respondent, Robert C. Akers, at all times relevant hereto, was a licensed real estate broker in Brooksville, Florida, having been issued license number 0000587 by Petitioner, Department of Professional Regulation.

   
   

2. Victoria Weeks was employed by Respondent as a real estate salesperson. In May, 1978, Weeks negotiated the sale of a residence to be built on Lot 19, Block 7, Unit 2 of Hill 'N' Dale Subdivision in Hernando County, Florida, to Roseann Iannaccone. The sale was conditioned upon the buyer being approved by the Farmers Home Administration (FHA) for a mortgage loan of approximately

   $25,500.

   
   

3. A part of the mortgage loan application was personally prepared by Iannaccone. Another part was prepared with the assistance of Akers' secretary. Respondent himself prepared or assisted in the preparation of two requests for verification of employment dated June 18, 1978, and April 3, 1979, respectively, which were a part of the application (Petitioner's Exhibit 1). Both verification sheets stated that Iannaccone was employed by Respondent in the position of secretary, that she earned approximately $30 to $40 per week, and that employment was considered to be "permanent".

   
   

4. During the period of March, 1977, through August, 1980, Iannaccone was employed by Sam Sack, the developer of Ridge Manor, a subdivision in Hernando County. Sack shared office space with Akers' real estate firm, which handled sales within the subdivision. Although she worked for Sacks, Iannaccone also devoted a portion of her time to assist Akers and Weeks, who occupied the same office. She performed such jobs as typing, answering the telephone, sending out promotional letters, and cleaning the office. For this she was paid by Akers on a periodic basis, depending on the amount of work performed. Akers also advanced her money periodically which she "worked out" by performing various jobs in the office or at his home. The compensation averaged out to approximately $30 to $40 per week. This relationship continued until August, 1980, when Sam Sack left Brooksville; Iannaccone then moved from Brooksville to Seffner, Florida, where she now resides. During the time period in question, no payroll records were kept by Respondent, nor did he deduct her compensation for

   tax purposes. Similarly, Iannaccone did not report the money as income on her income tax return.

   
   

5. When Iannaccone filed her application with the FHA, she was advised by the FHA to report all income on her application, regardless of whether it was for part-time employment, or whether it had been reported for income tax purposes (Respondent's Exhibit 2). For this reason, Akers filled out the verification of employment forms and reported that Iannaccone earned around $30 to $40 per week as his employee. Because her primary employer, Sam Sack, was expected to remain in the Brooksville area indefinitely, Akers also indicated that her employment with him would be permanent.

   
   

6. Respondent has been a real estate broker-salesman in Brooksville for over 20 years. He has been president of the Hernando County Board of Realtors and is active in many civic and community affairs. He enjoys a reputation of honesty, integrity and fair dealing, and has never been the subject of any prior disciplinary proceedings. (Respondent's Exhibit 1).

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statutes.

   
   

8. Section 475.25, Florida Statutes (1977) enumerates the grounds on which the Department may suspend or revoke a license. As is pertinent here, it authorizes disciplinary action when a licensee has:

   
   

   (1)(a) 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 . . .

   
   

9. In Count I, the Department has charged that Respondent has engaged in a course of conduct that constitutes a violation of Section 475.25(1)(a), Florida Statutes (1977). It is contended that Respondent made false representations on two documents he prepared for submission to the Farmers Home Administration on June 18, 1978, and April 3, 1979, respectively. Specifically, it is charged that Respondent falsely indicated on those documents that Roseann Iannaccone was his employee during that period of time and was earning approximately $30 to $40 per week.

   
   

10. In disciplinary proceedings against a licensee, it is incumbent upon the Department to support its charges with competent evidence, direct or circumstantial. See, e.g. Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3d DFCA 1976). Further, "the violation of a penal statue is not to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as 'substantially' on a scale suitable for evidence as the penalty does on the scale of penalties." Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). Here the evidence does not support a finding of guilt.

    
    

11. There is no dispute that Iannaccone performed casual and intermittent jobs for Respondent between April, 1977, and August 1980. These included jobs of both a secretarial and personal nature. It is true that the work was done at uncertain or irregular times, and the Respondent did not withhold taxes or

social security, or deduct the payments from his income. However, this does not detract from the fact that he engaged her services, made use of her in a number of ways, entrusted her with responsibilities and duties, and had the power and authority to control and direct her while she performed these tasks. In City of Boca Raton v. Mattef, 91 So.2d 644 (Fla. 1956) the Supreme Court defined an employee as follows:

...one who for a consideration agrees to work subject to the orders and direction of another, usually for regular wages but not necessarily so, and, further, agrees to subject himself at all times during the period of service to the lawful orders and directions of the other in respect to the work to be done. Customarily, the employer determines both the method and manner in which the work is to be done as well as the time and tenure of service. Id. at 647

Clearly, the evidence as a whole indicates Iannaccone was an employee of Akers, albeit part-time, that she was compensated for such services, and that the representations on the FHA application were substantially correct. Presumably, had not the FHA insisted on her reporting this income in order to process her loan, the instant proceeding would have never evolved.

Therefore, it must be concluded that there is insufficient evidence of a substantial nature, either circumstantial or direct, to support the charge that Respondent's actions constituted a violation of Section 475.25(1)(a), Florida Statutes (1977), and the complaint should be dismissed.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the complaint against Robert C. Akers be dismissed. DONE AND ENTERED this 13th day of May, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 13th day of May, 1981.

ENDNOTE

1/ Section 475.25(1)(a) has been renumbered by the 1979 Legislature as Section 475.25(1)(b), Florida Statutes (1979).

COPIES FURNISHED:

S. Ralph Fetner, Jr., Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Robert C. Akers Route 9, Box 2301

Highway 50 East

Brooksville, Florida 33512

Docket for Case No: 81-000175

Orders for Case No: 81-000175