STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2993

)

MARGARET PERRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on February 8, 1982, in Kissimmee, Florida.

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Nancy Y. Smith, Esquire

Post Office Drawer 1549 Kissimmee, Florida 32741

ISSUE PRESENTED

Whether respondent's license as a real estate salesman should be revoked or otherwise disciplined on the ground that she is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, culpable negligence, and breach of trust in a business transaction in violation of Section 475.25(1) (b), Florida Statutes (1979).

BACKGROUND

By administrative complaint dated October 20, 1981, petitioner Department of Professional Regulation ("Department") sought to revoke or otherwise discipline the real estate salesman's license of respondent, Margaret Perry ("respondent").

As grounds, the Department alleged that respondent showed real property to prospective purchasers and obtained a written offer to purchase; that, before the sellers accepted the offer, the prospective purchasers informed respondent that they wished to withdraw the offer; that respondent agreed to withdraw the offer and return the contract and earnest money deposit to the purchasers; that,

contrary to her agreement, she presented the sales contract to the sellers, who signed it; and that respondent's conduct constituted misrepresentation, false promises, false pretenses, dishonest dealing, culpable negligence, and breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes (1979).

Respondent disputed the allegations and requested a Section 120.57(1) hearing. On November 30, 1981, the Department forwarded this case to the Division of Administrative Hearings for the purpose of conducting the requested hearing.

At the outset of hearing, respondent moved to dismiss the administrative complaint for failure of the Department to comply with the prehearing order dated January 11, 1982. 1/ In reply, counsel for the Department admitted that he did not comply with the order, explaining that due to a heavy case load he didn't have the opportunity to telephone respondent's counsel. (Although the Department failed to comply with the prehearing order, the respondent did--by submitting a unilateral stipulation on January 28, 1982.) After conferring with the Department's counsel, respondent indicated that she was asserting no prejudice and was not requesting a continuance because of the Department's noncompliance. Consequently, respondent's motion to dismiss was denied.

The Department called as witnesses: Perry W. Ripple, Jr., Carol C. Ripple, Muriel D. Carlyon, Novie P. Cleveland, and Pamela A. Cleveland; it offered Petitioner's Exhibit 2/ No. 1 into evidence. Respondent testified in her own behalf and called Patricia F. Wolfe as her only witness; Respondent's Exhibit

2/ Nos. 1 through 4 were received into evidence. The sales contract in question was received into evidence as Joint Exhibit No. 1.

The parties were allowed to file proposed findings of fact and conclusions of law by February 28, 1982; the respondent filed proposed findings, the Department did not. Both parties agreed that the 30-day time period for submittal of a recommended order would begin on February 28, 1982.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. At all times material to the charges, respondent Margaret Perry was a licensed Florida real estate salesman holding license No. 0147966. Her business address is Key Place Realty, 513 West Vine Street, Kissimmee, Florida. (Stipulation of Parties.)

   
   

   I.

   The Offer

   
   

2. On December 12 and 13, 1980, Perry W. Ripple, Jr., and Carol C. Ripple, his wife, signed a contract to purchase a 5-acre tract, with residence, located on Hickory Tree Road, Osceola County, Florida. The contract was prepared by respondent, who had previously shown the property to the Ripples. (Testimony of Perry, P. Ripple, C. Ripple; Joint Exhibit No. 1.)

3. On Saturday, December 13, 1980, the contract constituted only a written offer to purchase the property since Novie P. Cleveland and Pamela A. Cleveland-

   -the owners of the property--had not yet accepted the offer by signing the contract. Pursuant to the contract, the offer was accompanied by a $1,000 earnest money deposit and an assignment of a certificate of deposit. (Testimony of P. Ripple, Perry.)

   
   

4. On Saturday, December 13, 1980, when respondent received the signed offer, with earnest money deposit and certificate of deposit assignment, she mailed a copy to the American Title Insurance Company and ordered title insurance. Before mailing the contract offer to the title insurance company, she typed two dates above the contract signature lines: "December 13, 1980" as the date it was signed by the buyers; 3/ and "December 15, 1980" as the date it would be signed by the sellers (the sellers had not yet signed the contract; she inserted December 15, 1980, in anticipation of their signing on that date). She used December 15, 1980, because, under the terms of the contract, that was the last day the offer could be accepted by the sellers. (Testimony of Perry, Carlyon; P-1.)

   
   

   II.

   The Acceptance

   
   

5. At approximately 6:00 p.m. on Sunday, December 14, 1980, respondent telephoned the sellers, Novie P. and Pamela A. Cleveland, and arranged for them to meet her at Mr. Cleveland's office and accept the offer by signing the contract. Respondent expedited the signing of the contract because the Ripples were in a hurry to close the transaction. (Testimony of N. Cleveland, P. Cleveland, Perry.)

   
   

6. A few minutes later, the Clevelands met respondent at the designated place and signed the contract. Although they signed the contract on December 14, 1980, respondent inadvertently failed to correct the December 15, 1980, date which she had earlier placed in the contract as the date of execution by the sellers. (Testimony of Perry, N. Cleveland, P. Cleveland; Joint Exhibit No. 1.)

   
   

   III.

   Buyers' Attempt to Withdraw Offer

   
   

7. Later on that evening--between 8:00 p.m. and 9:00 p.m. on December 14, 1980--Mr. Ripple telephoned respondent at her home. He questioned her about the boundaries and size of the property and, for reasons not material here, told her that he no longer wanted to buy the property, that he wanted the earnest money deposit returned. The conversation was abrupt and heated; both parties became upset with each other. The subject of whether the contract had been accepted and signed by the sellers was not mentioned. (Testimony of Perry, C. Ripple, P. Ripple.)

   
   

8. The critical dispute in this case is the time of Mr. Ripple's telephone call to respondent. The Ripples testified it was between 5 p.m. and 6 p.m.; respondent testified it was between 8 p.m. and 9 p.m. If the Ripples' testimony is accepted, then respondent presented an offer to the sellers for acceptance after the buyers had told her they wanted to withdraw the offer and not proceed with the contract; this is the essence of respondent's alleged misconduct. If respondent's testimony is accepted, the buyers did not notify her that they wanted to withdraw their offer until after the offer was accepted by the sellers; under such circumstances, her conduct was clearly proper.

9. Respondent's testimony on the timing of the Ripples' telephone call is accepted as persuasive; (see paragraph 7 above) the Ripples' testimony concerning the time of the call is rejected. In earlier testimony, Mr. Ripple's memory of the events in question was shown to be unreliable:

   
   

   [Respondent's Counsel]

   Q: You say you signed the contract on December the 13th, on a Saturday.

   
   

   [Mr. Ripple] A: Yes.

   
   

   Q: Isn't it true that you signed the contract at the Sun Bank in St. Cloud on Friday, December 12th, on the hood of your car or Marge's car?

   
   

   1. That's possible, yes.

      
      

      Q: So you were mistaken when you said you signed it on Saturday.

      
      

      A: Yes, I was. I probably was. (Tr. 23.)

      
      

      More importantly, if the Ripples' testimony is correct, respondent deliberately presented an offer for acceptance which the purchasers no longer wished to make. Assuming such conduct occurred, it is inconceivable that she would inadvertently fail to correct the date on the contract to indicate that the sellers signed on December 14, 1980 (the same day the Ripples attempted to withdraw), not December 15, 1980. The events occurred close together and timing was critical. By not changing the date, she allowed the contract to incorrectly reflect that the sellers signed the contract a day later than they actually did: the time between the buyers' attempt to withdraw and the sellers' acceptance becomes greater than it was and even more difficult for her to explain. In short, her failure to correct the date of the sellers' signing of the contract is not a mistake she would have made if, as the Department alleges, she knowingly presented an offer and completed a contract against the expressed wishes of the buyers.

      
      

      IV.

      No Damage to Parties Involved

      
      

10. On Monday, December 15, 1980, the Ripples stopped payment on their earnest money deposit check. The sellers did not pursue any legal rights or remedies they may have had against the Ripples. Eventually, the property in question was sold to another party. There is no evidence that the Ripples or Clevelands were financially harmed as a result of the events in question. (Testimony of Perry, C. Ripple, P. Ripple, N. Cleveland.)

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla. Stat. (1981).

12. Section 475.25(1), Florida Statutes (1981), empowers the Board of Real Estate to revoke or otherwise discipline the license of a real estate salesman if it finds that the licensee has:

    
    

    (b) Been guilty of . . . misrepresentation .

    . . false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state . . .

    
    

13. License revocation proceedings are penal in nature. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). The term "substantial competent evidence" takes on vigorous implications. Bowling, supra at 171. Matters in issue must be proven by evidence "which is indubitably as 'substantial' as the consequences [for the licensee]." Id. at 172. Violations are

    
    

    [N]ot 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. In other words, in a world ensnarled by false assumptions and hasty judgments, let the prosecutor's proof be as serious-minded as the intended penalty is serious. Id. at 172.

    
    

14. Measured by these standards, it is concluded that the Department has failed to prove its allegations that respondent violated Section 475.25(1)(b), Florida Statutes. Consequently, the administrative complaint must he dismissed.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department's administrative complaint dated October 20, 1981, be dismissed.

DONE AND RECOMMENDED this 26th day of March, 1982, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 26th day of March, 1982.

ENDNOTES

1/ That order required counsel to confer and file, in advance of hearing, a stipulation indicating issues of fact and law, identifying witnesses, and listing exhibits. Petitioner's counsel was given responsibility to make initial arrangements for the attorneys' conference.

2/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively. Pages of the transcript of hearing will be referred to as "Tr.- ."

3/ Although Mr. Ripple had signed the contract on December 12, 1980, she typed "December 13, 1980" because that was the date she received the earnest money deposit. In her view, the offer was not valid until the deposit was delivered.

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Nancy Y. Smith, Esquire Post Office Drawer 1549 Kissimmee, Florida 32741

Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002993

Orders for Case No: 81-002993