STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-1188

)

GEORGE SIGOUNTOS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly authorized Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on Thursday, August 6, 1981, in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Grover C. Freeman, Esquire

4600 West Cypress Avenue, Suite 410

Tampa, Florida 33607

For Respondent: Christopher C. Ferguson

5959 Central Avenue

St. Petersburg, Florida 33710

The issue for determination in this case is whether the Respondent's license as a real estate salesman should be revoked, suspended or otherwise disciplined for failing to disclose the contents of a termite inspection report to the buyers of real property as alleged in the Administrative Complaint filed April 7, 1981.

At the final hearing, Doris and John Opal, the buyers of the property and complaining parties, testified on behalf of the Petitioner, Department of Professional Regulation Board of Real Estate. Petitioner's Exhibits 1-7 were admitted into evidence. The Respondent, George Sigountos, testified on his own behalf and Respondent's Exhibits 1-5 were admitted into evidence.

Proposed Findings of Fact and Conclusions of Law have been submitted by the parties. Those proposed findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.

FINDINGS OF FACT

1. Respondent, George Sigountos, is a licensed real estate broker-salesman having been issued license number 0080704 with a principal place of business at 4338 First Street North, St. Petersburg, Florida. Respondent has been licensed in the State of Florida for approximately ten (10) years, having been a broker- salesman in New York for approximately twenty (20) years before coming to Florida.

   
   

2. The Respondent Sigountos was at all material times employed by Century

   21 Realty, 4922-38th Avenue North, St. Petersburg, Florida.

   
   

3. On or before March, 1979, Mr. and Mrs. John Opal listed for sale by the Respondent a house on Benson Avenue which they then occupied.

   
   

4. Subsequently, the Opals located another house which they desired to purchase at 5871-78th Avenue North, Pinellas Park, Florida.

   
   

5. The Opals obtained financing to purchase the Pinellas Park home although they had not yet sold their Benson Avenue home and requested the Respondent's assistance to sell their original home.

   
   

6. On or about March 4, 1979, the Respondent, through his broker, submitted a contract to the seller, Mr. Boyce, from the Opals, who contracted for the purchase of the Boyce home with a closing date on or before April 10, 1979.

   
   

7. The bank where financing was arranged informed the involved title company that interest rates were scheduled to increase as of March 19, 1979. As a result of this information, the title company and parties attempted to arrange to close on March 16, 1979. The Opals attended this closing while Mr. Boyce did not. The Opals, however, executed all documents necessary on their part for the closing on March 16, 1979. Included was an agreement requiring the sellers to replace three (3) boards on the back porch because of previous termite damage. This was included as a result of a prior conversation between Mr. Opal and Mr. Boyce concerning termite damage. Mr. Sigountos did not prepare this document and it is unclear how it came into existence.

   
   

8. No termite inspection report was filed until March 19, 1979.

   
   

9. The Boyce home was not inspected for termites until March 19, 1979, at which time the exterminator, Hobelman Exterminating Service, Inc., left his inspection report with Mrs. Boyce which stated, in part:

   
   

   REPORT

   
   

   A thorough visual inspection of the access ible areas of the above described property on March 19, 1979 shows:

   ( ) No visual evidence of termites.

   (YES) Visual evidence of previous infestation. (YES) Evidence of previous treatment.

   (YES) Visual evidence of active infestation: ( ) Subterranean termites

   (X ) Drywood termites

   (XX) Other (see "Remarks")

   Remarks: We have this property under Subter

   ranean Termite contract which becomes due each March and is transferable. Evidence of drywood termite infestation in sub-floor

   of back porch, no live termites found at this time.

   
   

10. Additionally. Mr. Boyce was orally advised by the exterminator at the time of the March 19, 1979 inspection that the property had evidence of termite infestation and should be tented at a cost of $350.00. Mr. Boyce took the inspection report to the title company and closed his end of the sale on March 19, 1979.

    
    

11. The Opals did not move into the Boyce home for approximately two (2) months after the March 16th closing.

    
    

12. The Boyces remained in their home during this period and gradually moved household goods between their old and new houses.

    
    

13. Mr. Sigountos obtained a copy of the termite inspection report from Mr. Boyce after the closing and delivered it to the Opals within ten (10) days of the time he received it from Mr. Boyce.

    
    

14. The Opals closed the sale of their home on May 8, 1979. At this closing a discussion took place between the Boyces and the Respondent concerning the termite damage and Mr. Boyce's agreement to repair the porch. This was the first time any discussions between the Opals and the Respondent concerning termites arose.

    
    

15. It is customary in the real estate business for the listing broker to obtain any termite report and produce it at the closing.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.

    
    

17. The Administrative Complaint charges the Respondent with violating Section 475.25(1)(b), Florida Statutes (1979) which provides in pertinent part as follows:

    
    

    The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administrative fine not to exceed

    $1,000 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:

    (b) 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;...

18. Due to the bifurcated nature of the closing on the Boyce property and the second closing in May, 1979, of the Opals original home, the testimony in this case is confused as to when various events occurred. For example, Mrs. Opal was sure that the Respondent discussed the inspection report at the March 16, 1979, closing while her husband was not. Evidence submitted by the Respondent demonstrates that if Mrs. Opal's recollections concerning the Respondent's representations are correct, they occurred not on March 16, but on May 9, the time of the second closing and after the Boyce sale was concluded.

    
    

19. The problem in this case apparently arose from the title company closing the first sale in the absence of a clear and unequivocal termite inspection report from the seller. See Florida Southern Abstract and Title Company v. Bjello, 346 So.2d 635 (Fla. 2nd DCA 1977.) The inspection report which was submitted on March 19, 1979, could be read, however, to confirm the agreement reached between Mr. Boyce and Mr. Opal concerning the replacement of boards on the back porch since the report read "...termite infestation in sub- floor of back porch, no live termites found at this time." Such statement conflicts with another statement in the report which stated that visual evidence of active infestation, drywood termites, was found. Thus, even though the report was submitted by the Respondent to the Boyces after the first closing, it would not necessarily place either party on notice that termites were actually present.

    
    

20. Mr. Opal knew about the boards on the back porch which required replacing as a result of information obtained from Mr. Boyce. The discussions concerning the inspection report occurred not at the title company in March, 1979, but rather at the second closing at a bank in May, 1979. At that time the Boyce sale was already concluded and any statements made by the Respondent could obviously not have been relied on by the Opals to their detriment. However, given the ambiguous statements on the inspection report, the Respondent's statements in May, 1979, concerning the results of the report do not rise to the level of fraud, misrepresentation or culpable negligence. Additionally, the Respondent was under no duty to disclose information of which he had no knowledge prior to the Opals signing the contract on March 16, 1979. See Chisman v. Meylan, 105 So.2d 186, 189 (F1a. 2nd DCA 1958), "...[a] broker has imposed on him during the period of such relationship with his principal the legal obligation to inform him with fairness, promptness and completeness concerning all facts within his knowledge which are or may be material to the situation in connection with which he is employed." (citation omitted) (e.s). Accordingly, sufficient competent and substantial evidence has not, been presented to support a finding that the Respondent violated Section 475.25(1)(b), Florida Statutes (1979), in the course of his dealings with the Opals.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a final order be entered by the Petitioner dismissing the complaint filed April 7, 1981 against the Respondent George Sigountos.

DONE and ORDERED this 1st day of October, 1981, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1981.

COPIES FURNISHED:

Grover G. Freeman, Esquire Suite 410

4600 West Cypress Avenue Tampa, Florida 33607

Christopher C. Ferguson 5959 Central Avenue

St. Petersburg, Florida 33710

C. B. Stafford, Executive Director Florida Real Estate Commision

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

Docket for Case No: 81-001188

Orders for Case No: 81-001188