STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-873

)

PHYLLIS F. BELL, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in Englewood, Florida, on August 24, 1983, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon an Administrative Complaint filed by the Petitioner, Department of Professional Regulation, Florida Real Estate Commission, which alleges that the Respondent, Phyllis F. Bell, violated Section 475.25(1)(b), Florida Statutes, by failing to pay for telephone and utility bills which she had contracted to pay on a piece of property which she had under an option to purchase, and which she had occupied and in which she was living. The Respondent filed a timely request for an administrative hearing, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to the provisions of Section 120.57, Florida Statutes.

Immediately prior to the scheduled hearing date, the Respondent wrote the Hearing Officer, stating that she would not be at the hearing because she was leaving the state and requesting a continuance. Respondent's motion for continuance was opposed by the Petitioner. Because the Respondent had already left the state and could not be contacted, a separate motion hearing could not be held before the commencement of the formal hearing. The Respondent was not present at the hearing when her motion for continuance was considered and argument of the Petitioner against a continuance was heard. No evidence was presented to support the motion for continuance, and it was denied.

Counsel for the Petitioner advised that she had received a letter from the Respondent immediately before the hearing, in which the Respondent had returned her Florida license and had indicated she no longer desired to be licensed in this state. However, the Petitioner desired to proceed and was permitted to present its case in chief.

APPEARANCES

For Petitioner: Tina Hipple, Esquire

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

For Respondent: Did not appear and was not represented ISSUES

The following issues of fact and law were considered:

1. Whether the Respondent failed and refused to pay the telephone and utility bills for property which she had under option and in which she lived, contrary to the option contract which she had executed; and

   
   

2. Whether the failure of the Respondent to pay the utility and telephone bills she was obligated to pay under an option to purchase the property constitutes fraud, false pretenses and dishonest dealing.

Neither party submitted proposed findings of fact or conclusions of law for the Hearing Officer's consideration.

FINDINGS OF FACT

1. At all times relevant to the charges against her, the Respondent, Phyllis F. Bell, was a licensed real estate salesperson holding license number 0005529 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. Prior to the formal hearing, the Respondent attempted to unilaterally surrender her license, which was not accepted by the Petitioner.

   
   

2. The Respondent's last known address is 895 Indiana Avenue South, Englewood, Florida 33533. Notice of hearing and all correspondence regarding these proceedings was mailed to the Respondent at that address, and none of these items were returned to the Division of Administrative Hearings. The Respondent received notice of this proceeding as required by law, and although she requested a continuance, she did not show good cause for continuance of the proceeding. At the commencement of the hearing, the Respondent's motion was denied, and the Petitioner was so advised and permitted to present its case.

   
   

3. On October 17, 1979, the Respondent entered into an option-purchase agreement with Eugene Turner, Sr., which agreement granted the Respondent an option to purchase real property known and referred to by the parties as the Van Buren Estate located on Boca Grande Island, Florida. The Respondent occupied this property and lived in one of several dwellings thereon until her option and several extensions thereto had expired. During said time, the Respondent attempted to sell her option at a profit.

   
   

4. While living on the property, the Respondent incurred utility and telephone bills in the amount of approximately $5,600 which she was obligated to pay under the terms of the option agreement.

   
   

5. After her last extension had expired, Respondent vacated the property, and, although she has acknowledged the debts, she has not paid them.

   
   

   CONCLUSIONS OF LAW

   
   

6. Under the provisions of Chapter 475, Florida Statutes, the Department of Professional Regulation, Florida Real Estate Commission is authorized to discipline persons holding real estate licenses. The Respondent unilaterally attempted to surrender her license, which was refused by the Petitioner. Licensure is the basis for agency jurisdiction, and, in the absence of acceptance by the agency of a voluntary surrender, the Respondent remained

   licensed and jurisdiction existed to proceed with the hearing. This Recommended Order is entered pursuant to the provisions of Section 120.57, Florida Statutes.

   
   

7. The Respondent is charged with violation of Section 475.25(1)(b), Florida Statutes, which provides in pertinent part that a licensee may be disciplined if the licensee 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 . . . violated a duty imposed upon him by law or by the terms of a listing contract . . . aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof

   . . . .

   
   

   The above statute permits discipline of a licensee in several degrees of severity for violation of this provision. The intent of the Legislature was to permit those licensees to be penalized who were found guilty of fraud, false pretenses, dishonest dealing, etc. This statute was not intended to penalize a licensee for nonpayment of debts lawfully incurred which the licensee cannot pay.

   
   

8. The Petitioner proved that the Respondent contracted to pay the telephone and utility bills and that the Respondent did not play these bills. However, this does not prove fraud, false pretenses or dishonest dealing. The proof of the unpaid legal debt does not prove the intent of the Respondent to renege on the contract when she entered it. It is this evil intent that was intended to be punished by the statute, and this intent must be specifically proved by the petitioner. It is not sufficient for the Petitioner to prove the debt and nonpayment of the debt and to force the Respondent to prove lack of intent. The burden of proof stays with the Petitioner to prove all elements of the charge.

   
   

9. The evidence is very clear that this was not a listing contract but an option to purchase. Therefore, the second portion of the statute is not applicable. In addition, there was no testimony about any other parties to the transaction. Clearly, the owner of the property was not involved in a conspiracy, and it requires at least two people to have a conspiracy; therefore, the last part of the statute's provisions was not applicable to the facts.

RECOMMENDATION

Having found the Respondent, Phyllis F. Bell, not guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Petitioner, Department of Professional Regulation, Florida Real Estate Commission, take no action against the Respondent.

DONE and RECOMMENDED this 14th day of October, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 14th day of October, 1983.

COPIES FURNISHED:

Tina Hipple, Esquire Department of Professional

Regulation

400 West Robinson Street Orlando, Florida 32801

Ms. Phyllis F. Bell

895 Indiana Avenue, South Englewood, Florida 33533

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Harold Huff, Executive Director Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

Randy Schwartz, Esquire Department of Legal Affairs

400 West Robinson Street Suite 212

Orlando, Florida 32801

Docket for Case No: 83-000873

Orders for Case No: 83-000873