STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

v. ) CASE NO. 84-2551

)

PATRICIA A. DENNIS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on January 3, 1985, by R. L. Caleen, Jr., hearing officer with the Division of Administrative Hearings, in West Palm Beach, Florida. The parties were represented by counsel:

APPEARANCES

For Petitioner: Fred Langford, Esquire

Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

For Respondent: Richard McClain, Esquire

6167 Haddon Road

West Palm Beach, Florida 33409 ISSUE

Whether respondent's real estate salesman's license should be disciplined on charges that she engaged in misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes, and operated as a real estate broker or a salesman not registered as her employer, in violation of Sections 475.42(1)(b) and 475.25(1)(a), Florida Statutes.

BACKGROUND

By administrative complaint dated April 23, 1984, the Department of Professional Regulation, Florida Real Estate Commission (Department) charged Patricia A. Dennis (respondent) with professional misconduct violative of Sections 475.25(1)(a), (b), and 475.42(1)(b), Florida Statutes. Respondent disputed the charges and requested a formal hearing.

On July 13, 1984, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for August 21, 1984, then, on respondent's motion, continued and ultimately reset for January 3, 1985.

At hearing, the Department presented the testimony of Jack Barlage and Richard Moore, and offered Department Exhibit Nos. 1 and 2 into evidence.

Respondent testified in her own behalf and presented the testimony of Joyce Adams, Leon Dennis and John Adams.

The transcript of hearing was filed on January 16, 1985. The Department filed proposed findings of fact and conclusions of law on January 28, 1985; respondent did not file proposed findings. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.

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

FINDINGS OF FACT

1. At all times material to the charges, respondent was a licensed real estate salesman, on inactive status, holding license no. 0330793., and residing in Lake Worth, Florida.

   
   

2. In early October, 1983, Jack Barlage entered the offices of Colony Real Estate in Lake Worth, Florida. He was a builder and looking for acreage to purchase. Joyce Adams, a real estate salesman with Colony Real Estate, met with him and, two or three days later, showed him a 5.207 acre tract of land in sunny Urban Meadows, an unrecorded subdivision located west of Loxahatchee, Florida. He expressed an interest in the property; she told him that the owner, Richard Moore, might be willing to sell it.

   
   

3. A day or two later, Mr. Barlage called Ms. Adams and asked if she would call owner Moore and obtain a purchase price. She responded that she would not get a commission from selling the property and that he should deal with "Leon," who would be able to contact Mr. Moore, the owner.

   
   

4. A day or two later, Ms. Adams introduced Mr. Barlage to "Leon," who was Leon Dennis, respondent's husband--the original developer of Sunny Urban Meadows. This meeting took place at a nearby coffee shop in Royal Palm Beach, called Sandy's. John Adams, Ms. Adams' husband and a real estate salesman, was also present. Respondent did not attend this meeting and there is no evidence that she was, at this point in time, involved in the transaction. This coffee shop meeting was Ms. Adams' last contact with Mr. Barlage, and she had no further involvement in this real estate transaction.

   
   

5. A contract for "purchase and sale" of the Sunny Urban Meadows tract was prepared at this meeting and signed by Mr. Barlage, the prospective purchaser. Leon Dennis, respondent's husband, retrieved the form "purchase and sale" contract from his car, returned to the coffee shop, and completed it in the presence of the others. He filled in the terms, including a $28,000 purchase price. He arrived at this figure based on her knowledge of current land values in the area. The form "Brokerage Fee" provision on the bottom of the contract, however, was not filled in; no sales commission was indicated and no broker identified.

6. Mr. Dennis told purchaser Barlage that he would have the contract presented to owner Moore. At that time, Mr. Barlage had not yet had any contacts with respondent, Mr. Dennis's wife.

   
   

7. Mr. Dennis, with the help of a relative who was a close friend of Mr. Moore's, then had the contract delivered to Mr. Moore, in Punta Gorda, Florida. Approximately a week earlier, respondent had telephoned Mr. Moore, asking if he wanted to sell the subject property. At that time, a sales commission was not discussed; neither did she represent that she was a licensed real estate salesman or broker. But when the original contract was subsequently delivered to him by Mr. Moore's relative, the "Brokerage Fee" provision had been completed, providing for payment of ten percent of the gross price or $2,800 to Pat Dennis, the respondent. Her name was hand printed above the line labeled, "Name of Broker."

   
   

8. Upon receiving the contract and discovering the sales commission, Mr. Moore telephoned respondent and told her that he would not pay a ten percent commission--he said he would agree only to a six percent commission, to be split between her and his own real estate brokerage firm. He also told her that if those terms were not acceptable to her, he "would go ahead and do it without her and give-her her money after the deal was done." (TR-21) Mr. Moore then arranged to meet directly with Mr. Barlage, the prospective purchaser.

   
   

9. On October 9, 1983, Mr. Barlage drove to Punta Gorda and met Mr. Moore in a hospital parking lot to finalize the contract. Mr. Moore, noting the "Brokerage Fee" provision, said "Who are these people?" and "Well, I'll take care of them," or words to that effect, (TR-10). He then drew a line crossing out the "Brokerage Fee" provision and initialed it. He then told Mr. Barlage he wanted to do a credit check; one or two days later, he called Mr. Barlage and told him he was going to accept the contract. It was at that time, on or about October 9, 1983, that Mr. Moore executed the contract as seller.

   
   

10. For reasons not material, the contract of sale was never carried out by the parties. Mr. Barlage unilaterally cancelled the contract. When Mr. Moore called him to inquire about the $500 earnest money deposit, which the contract had indicated was held by "Stewart Title," Mr. Moore learned that a deposit had not been received by Stewart Title; in fact, Mr. Barlage had made no deposit at all.

    
    

11. There is conflicting testimony as to whether respondent ever communicated with Mr. Moore concerning this real estate transaction. Respondent denies any direct involvement. Her denial is rejected and the testimony of Mr. Moore, who had no discernible bias or motive to falsify, is accepted as persuasive.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1983).

13. Section 475.25(1), in pertinent part, authorizes the Florida Real Estate Commission to revoke or otherwise discipline a real estate salesman's license if it finds that the licensee:

    
    

    1. Has violated any provision of s. 475.42.

       . . .

    2. Has been guilty of fraud, misrepresenta- tion, concealment, false promises, false pretenses, dishonesty by trick, scheme, or device, culpable negligence or breach of

       trust in any business transaction in this state.

       
       

       Section 475.42 makes it a unlawful for any person licensed as a salesman to operate as a broker or a salesman for a person not registered as his or her employer.

       
       

14. In license disciplinary proceedings such as this, the critical matters in dispute "must be shown by evidence which is indubitably as 'substantial' as the consequences." Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

    
    

15. The evidence convincingly establishes, with the requisite "substantiality", that although the written contract was prepared by respondent's husband, she actively undertook to contact the owner and discuss its terms. She either individually, or in concert with her husband, completed or approved the "Brokerage Fee" provision indicating that she was acting as a broker. (It is implausible that, with her prior active involvement in the transaction, the "Brokerage Fee" provision was completed by her husband without her advance knowledge and approval.) She was at that time a real estate salesman on inactive status. She was not and never has been a real estate broker. The representation, by contract, that she was acting as a real estate broker constituted fraud, misrepresentation, false pretenses and breach of trust in a business transaction, violative of Section 475.25(1)(b), Florida Statutes. Furthermore, she acted as a broker when she was a real estate salesman on inactive status and thus violated 475.42(1)(b) and thereby Section 475.25(1)(a), Florida Statutes. Her actions, however, have not been shown to constitute concealment, false promises, dishonest dealing by trick, scheme, or device, or culpable negligence.

    
    

16. Penalty. Respondent's actions appear to have been knowing and intentional violations of Chapter 475, Florida Statutes. In the absence of mitigating or extenuating circumstances, it is concluded that her violation of the rules of conduct which govern her profession warrants revocation of her license.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent's license as a Florida real estate salesman be revoked for violating Section 475.25(1)(a) and (b) and 475.42(1)(b), Florida Statutes, in the manner described above.

DONE and ORDERED this 25th day of February, 1985, 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 25th day of February, 1985.

COPIES FURNISHED:

Fred Langford, Esquire Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

Richard McClain, Esquire 6167 Haddon Road

West Palm Beach, Florida 33409

Docket for Case No: 84-002551

Orders for Case No: 84-002551