STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2794

) WAYNE E. BELTON and BELTON AND ) BELTON & ASSOCIATES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on March 22, 1982, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

2715 East Oakland Park Boulevard, Suite 101 Fort Lauderdale, Florida 33306

For Respondent: Stephen G. Melcer, Esquire

Suite 500, First Bank Building

551 Southeast Eighth Street Delray Beach, Florida 33444

ISSUE

The issue for determination in this case is whether the Respondent Wayne E. Belton violated Section s. 475.25(1)(b), Florida Statutes (1979), by inserting an option provision into a lease agreement without the specific authorization of the tenants and subsequent to the tenants signing the original agreement.

At the hearing, Petitioner's Exhibits 1-10 were offered and admitted into evidence. Leslie and Glenn Strickland, the tenants and complainants, testified on behalf of the Petitioner. Wayne Belton testified on his own behalf.

Proposed Recommended Orders have been submitted by the parties. Those findings not incorporated 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. The Respondent Wayne E. Belton is a licensed real estate broker with his principal place of business at 337 Northeast Second Avenue, Delray Beach, Florida.

   
   

2. On or about November 23, 1979, the Respondent prepared a one-year rental agreement or lease for property located at 2717 Southwest Sixth Street, Delray Beach, Florida, which was owned by Mrs. Margaret Finlay. Mr. and Mrs. Glenn Strickland executed the agreement as the tenants.

   
   

3. The lease was prepared pursuant to an open listing by the owner for either sale or lease.

   
   

4. When the Stricklands signed the original agreement it did not contain any provision concerning purchasing the property in the future through an option agreement. Although the Stricklands had discussed an option agreement with the Respondent, they did not specifically agree to an option agreement which required the deposit of additional monies in escrow which would not be refunded if the option were not exercised.

   
   

5. The owner of the property, Mrs. Finlay, was primarily interested in selling the property and demanded that Respondent obtain a binding option from the Stricklands.

   
   

6. When faced with the conflicting demands of the tenants and the owner, the Respondent inserted an option provision in the lease agreement after the Stricklands had signed the original lease which did not contain such a provision.

   
   

7. When the Stricklands failed to deliver the $1,500 option money required by the option provision, Mrs. Finlay, through her attorney, threatened to take legal action against the Respondent. In response to the owner's demand, the Respondent through his attorney, demanded that the Stricklands pay $1,500 for the option pursuant to the lease agreement.

   
   

8. When the Stricklands received the demand letter from Respondent's counsel, they contacted an attorney who eventually settled the matter. The Stricklands were required to expend $138.00 in attorney's fees to correct the problem caused by the Respondent.

   
   

9. The Respondent admitted inserting the option provision into the lease agreement after the Stricklands executed it, but denied acting with any intent to alter the agreement contrary to what he believed the parties intended. Rather, the Respondent believed that he was remedying his original omission to conform to what he believed the parties had orally agreed to.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. See Section 120.57(1), Florida Statutes.

11. The Administrative Complaint charges the Respondent with violating Section 475.25(1)(b), Florida Statutes (1979) which authorizes the Petitioner to suspend a license for a period not exceeding 10 years, revoke a license, impose an administrative fine not to exceed 1,000 for each count, or issue & reprimand if it finds a licensee has:

    
    

    [b]een guilty of fraud, misrepresentation, concealment, false promises, false pre- tenses, 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;...

    
    

12. In the instant case, the Respondent had a duty to advise both Mrs. Finlay and the Stricklands that the original lease which he prepared was defective in that an option provision was not included as requested by the owner. If both parties had agreed, the Respondent could have added the provision and had the parties ratify the same. Instead, the Respondent breached a duty he owed to both the owner and the tenants by remaining silent and failing to inform them of his omission and the resulting subsequent alteration of the executed contract. His action in altering the original contract as executed by the parties was intentional and willful and is proscribed by Section 475.25(1)(b), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Petitioner enter a final order finding that Respondent Wayne E. Belton violated Section 475.25(1)(b), Florida Statutes (1979) and imposing a reprimand and an administrative fine.

DONE and ORDERED this 7th day of June, 1982, in Tallahassee, Florida.

SHARYN L. SMITH, 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 7th day of June, 1982.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Stephen G. Melcer, Esquire Suite 500 First Bank Building

551 Southeast Eighth Street Delray Beach, Florida 33444

Frederick H. Wilsen, Esquire Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Carlos B. Stafford Executive Director

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32801

Samuel R. Shorstein Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002794

Orders for Case No: 81-002794