STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF REAL )

ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1883

)

MARGARET LEE WRIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on February 10, 1983, in Key Largo, Florida.

APPEARANCES

For Petitioner: Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

For Respondent: William N. DeVane, Jr., Esquire

Frigola, DeVane & Wright, P.A. 5701 Overseas Highway

Post Office Box 177 Marathon, Florida 33050

By Administrative Complaint dated June 10, 1982, the Department of Professional Regulation, Board of Real Estate (now Florida Real Estate Commission)("Petitioner"), has accused Margaret Lee Wright ("Respondent"), a licensed real estate broker, of concealment and breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes.

Specifically, Petitioner contends that in early 1979 Joseph Kite hired Respondent to manage or lease a home owned by him on Big Pine Key. It is alleged that Respondent leased the property to a third party for one year, that problems developed concerning damage to the property and failure of the tenant to make timely rental payments, and that the tenant leased the premises under an assumed name. Petitioner contends that Respondent was aware that the tenant was leasing under an assumed name and that Respondent was hired not only to lease but to manage the property and failed to do so properly thereby breaching a trust. Respondent generally denies these allegations.

Final hearing in this cause was scheduled for February 10, 1983, by Notice of Hearing dated October 12, 1982. At the final hearing, Petitioner called Joseph Kite and Respondent as its witnesses. Petitioner offered Petitioner's Exhibits 1 through 8, which were received into evidence. Respondent testified

in her own behalf and called Robert C. Worthey as a witness. Respondent offered Respondent's Exhibits 1 through 5, which were received into evidence.

Both the Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. At all times material hereto, Respondent was and is a licensed real estate broker in the state of Florida, having been issued license No. 0098626. Her address is U.S. Highway 1, Mile Marker 30, Big Pine Key, Florida.

   
   

2. At some time during 1971, Joseph Kite met Respondent while she was employed as an associate in the office of Betty M. Brothers Real Estate on Little Torch Key, Monroe County, Florida. Mr. Kite apparently purchased some property through this real estate office, which occasioned his meeting Respondent.

   
   

3. At some time during November of 1978, Mr. Kite contacted Respondent and requested that she find a renter for and manage the rental of his home on Big Pine Key, Florida. Respondent advised Mr. Kite that she would agree to find someone to rent the premises, but because of other business considerations, she no longer managed rental properties. Subsequently, Mr. Kite and Respondent discussed Mr. Kite's requirements concerning rental of his property. There were to be no pets or children, and any lease of the premises was to be for not less than six months duration and preferably for one year. Mr. Kite explained to Respondent that he was most concerned about vandals, since the property was to serve as his retirement home and he wanted it kept in good condition until such time as he retired and settled there. The parties agreed that Respondent would receive 15 percent of any rental charged and received by Mr. Kite on the property. Other than the above, there was no specific understanding between Mr. Kite and Respondent concerning Respondent's specific responsibilities. Kite wrote an undated letter to Respondent summarizing their agreement which provided, as follows:

   
   

   This is to confirm our telephone Conversation[sic] of Saturday, 25 November, 1978, in which I requested and you agreed to list my home on Long Beach Drive, Big Pine Key, Florida, in your rental department.

   
   

   Subject to my instructions relative to the duration of the lease and the size of the family occuping[sic] the property you are to use your own judgement[sic] in all details pertinent to the lease and you are hereby authorized to do so. . . .

   
   

4. Respondent rented the property to an initial tenant for a period of one year, collected the first and last months' rent and a security deposit, and forwarded the first and last months' rent to Mr. Kite. Subsequently, she sent the next two months' rent to Mr. Kite. Thereafter, the tenant became ill, vacated the property, and returned to his home in Philadelphia.

5. The property stood vacant for approximately two months. Respondent then rented the premises for a period of three months. The tenants moved out of the house at the expiration of the three-month period.

   
   

6. Respondent rented the property a third time in July of 1979 to a man who signed the lease under the name of "John Brown." At the time the lease was signed, Respondent had no reason to believe that the lessee had any name other than "John Brown."

   
   

7. On July 28, 1979, "Brown" returned to Respondent's office with his mother and made an offer to purchase the property. The offer to purchase was submitted in the name of "Jeffrey Benz." At about this time, Respondent also learned that this individual had approximately one year previously used the name "Jeffrey Benn" or "John Benn." The record in this cause does not establish the true identity of this individual. However, Respondent attempted to communicate this difference in names directly to Mr. Kite by mail, but was apparently unsuccessful. Respondent did communicate this difference in names to Mr. Kite's sister-in-law, with whom she often communicated because Mr. Kite, who was engaged in the construction business, often could not be contacted. In any event, Mr. Kite learned in either August or September of 1979 that "Brown" and "Benz" were the same persons, and thereafter continued to accept rental payments from him. Further, Mr. Kite was not interested in selling the property, so the offer to purchase from "Benz" came to nothing.

   
   

8. In early 1980 "Brown" or "Benz" ceased making rental payments under the terms of the lease. Thereafter, pursuant to instructions from Mr. Kite, Respondent instituted and successfully concluded eviction proceedings.

   
   

9. In mid-April, 1980, a severe squall passed through the Big Pine Key area, doing extensive damage to the house located on the property. Respondent and her employees observed the damage, and performed some cursory cleanup, and secured the property so that it would not be vandalized until Mr. Kite's return. Upon resumption of possession of the house, Mr. Kite apparently was under the impression that damage to the home had been caused by the prior tenant.

   However, there is absolutely no direct evidence in this record that "Brown" or "Benz" in any way caused damage to the property. The only direct testimony of record in this proceeding concerning the source of damage is that it occurred as a result of the April storm.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 475.25(1)(b), Florida Statutes, authorizes discipline of brokers by suspension or revocation of a license or an imposition of an administrative fine upon a finding that a licensee has ". . . [b]een guilty of .

    . . concealment . or breach of trust in any business transaction.

    
    

12. In the Administrative Complaint it is alleged that Respondent was hired to "manage" the Property which is the subject matter of this proceeding, that Respondent knew that "Brown" or "Benz" had damaged the property extensively and disturbed the peace and tranquility of the surrounding neighborhood, that she failed to disclose this information to the owner of the property, and that she further failed to disclose the tenant's true identity when it became known to her.

13. It is specifically found that there was never any agreement between Respondent and Mr. Kite by virtue of which Respondent was hired to "manage" the property in question. Instead, her only responsibilities were to rent the property in question, to collect those rentals, and to forward them to Mr. Kite. There is no evidence of record in this proceeding to indicate that she in any way violated her agreement with Mr. Kite in this regard.

    
    

14. Further, there is no evidence of record in this proceeding upon which a finding can be based that "Brown" or "Benz" in any way damaged the subject property.

    
    

15. Finally, based upon the record in this proceeding, it is impossible to determine the true identity of the tenant, or that Respondent knew, in fact, what that true identity was. Even so, this fact was of little moment to the owner of the property since he knew early on in the transaction that there was some doubt as to the tenant's true identity, but continued to accept rental payments from the tenant notwithstanding this confusion.

    
    

16. Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is found that Petitioner has failed to prove by a preponderance of the evidence that Respondent has in any way violated the provisions of Section 475.25(1)(d), Florida Statutes.

It is, therefore,

RECOMMENDED: That a Final Order be entered dismissing the Administrative Complaint against Respondent, with prejudice.

DONE AND ENTERED this 15th day of March, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

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 15th day of March, 1983.

COPIES FURNISHED:

Harold M. Braxton, Esquire

45 S.W. 36th Court Miami, Florida 33135

William N. DeVane, Jr., Esquire Frigola, DeVane & Wright, P.A. 5701 Overseas Highway

Post Office Box 177 Marathon, Florida 33050

William M. Furlow, Esquire Department of Professional Regulation

Legal Section

Post Office Box 1900 Orlando, Florida 32802

Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001883

Orders for Case No: 82-001883