STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 85-0683

) THOMAS F. STEFFAN JR., )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its undersigned duly designated Hearing Officer, Ella Jane P. Davis, held a formal hearing in this cause on July 12, 1985 in Ft. Myers, Florida.

APPEARANCES

For Petitioner: James R. Mitchell, Esquire

Staff Attorney

Department of Professional Regulation Legal Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

For Respondent: Thomas F. Steffan Jr., Pro Se

18645 Sandpiper Road Ft. Myers, Florida

At the hearing, the Petitioner called Donald Griffin, Catherine Alice Griffin, Wesley Brodersen, Joseph Jacobs, Walther Ellis (by way of deposition), and Blanca Ellis (by way of deposition). Petitioner's Exhibits 1-8 were admitted in evidence. The Respondent testified in his own behalf and had no exhibits admitted in evidence.

A transcript of the proceedings was furnished by the Petitioner. Post-trial proposed findings of fact and conclusions of law have been submitted, received, and considered. To the extent that any proposed findings have not been adopted by this recommended order, they have been rejected as not having been supported by the evidence, as having been irrelevant or immaterial to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law. By the findings of fact contained within this recommended order all proposals of the parties have been ruled upon either directly or indirectly.

ISSUE

Whether Respondent's real estate broker's license should be disciplined for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in any business transaction, pursuant to Section 475.25(1)(b) Florida Statutes(1983).

FINDINGS OF FACT

1. At all times pertinent to the charges, Respondent Thomas F. Steffan Jr. was a licensed real estate salesman having been issued license number 0402257. Respondent has since been issued a license as a real estate broker, same license number.

   
   

2. Mr. and Mrs. Walther Ellis were the owners of certain property located on Windsor Road, Bonita Springs, Florida. Mr. and Mrs. Ellis listed their property for sale with Wesley Brodersen of Gulder Real Estate, Inc. in Bonita Springs, Florida. The Respondent was employed at Gulder Real Estate, Inc. during the time that the Ellises listed said property with Gulder Real Estate, Inc.

   
   

3. On or about May 23, 1984, the Respondent solicited and obtained a Catherine A. Griffin as a prospective purchaser of the Ellis' property. Mrs. Griffin submitted a contract for sale and purchase, witnessed by Respondent, which contract for sale and purchase the Respondent in turn submitted to the Ellises. Pursuant to the terms of the May 23, 1984 contract for sale and purchase, Mrs. Griffin had placed down a total deposit of

   $5,000.00. The Ellises rejected the terms of sale (offer) as expressed in the May 23, 1984 contract for sale and purchase.

4. Thereafter, Mrs. Griffin, as buyer, along with her husband, Donald Griffin, who is not a buyer in the transaction but was intimately involved in the negotiations, continued to express an interest in the property and the Ellises continued to express an interest to sell the property. In July, 1984, contract negotiations were once again begun and Mr. Griffin informed the Respondent what terms would be acceptable to his wife, Catherine A. Griffin. Mr. Griffin further requested that the signatures of Mr. and Mrs. Ellis be obtained first on a new contract for sale and purchase setting out the terms he had dictated to Respondent. Somewhere during this time period, Mr. Griffin directed Respondent to have completed a survey of the property at the Griffins'expense.

   
   

5. Respondent next communicated with Mr. Ellis and a new contract for sale and purchase was prepared by the Respondent and signed by Mr. Ellis personally and signed by Mr. Ellis for Mrs. Ellis with Mrs. Ellis' express consent and permission.

   
   

6. Subsequent thereto, the Respondent brought the new contract for sale and purchase to the Griffins. In the presence of Mr. and Mrs. Donald Griffin the Respondent presented the offer. Mr. Griffin immediately signed the new contract for sale and purchase in the presence of both Respondent and Mrs. Griffin on the line indicating he was signing as a witness to the buyer's signature/execution. However, as this contract (offer) was physically handed by Mr. Griffin to his wife for formal execution, it was further reviewed by Mr. Griffin, who became aware that the terms of purchase contained in the new contract for sale and purchase were not as he had dictated them to the Respondent. Mr. Griffin advised his wife not to accept the offer, instructed her not to sign, and, in fact, the new contract for sale and purchase was not signed or accepted by Mrs. Griffin. Respondent requested that the Griffins think about the offer for a while longer and they agreed to do so over an extended vacation.

   
   

7. While the Griffins were on vacation, the Respondent, apparently believing the offer contained in the second contract for sale and purchase would eventually be accepted, notified Mr. Ellis that the offer had already been accepted. Believing that the offer had been accepted by a bona fide purchaser, Mr. Ellis requested a copy of the signed contract. Due to the fact that the Respondent did not have a contract signed by a bona fide buyer (Catherine A. Griffin) but believing that one would be obtained in the very near future because Donald Griffin had signed the second contract and because Donald Griffin had

   indicated that he could finance the entire operation by himself, the Respondent caused a photo copy of the signature of Catherine

   A. Griffin to be placed onto the second contract without the permission , consent, or knowledge of either Donald Griffin or Catherine Griffin.

   
   

8. The altered copy of the second contract is apparently no longer in existence and did not come into evidence. The only real point of contention in the parties' respective proposed findings of fact and conclusions of law is concerning what representation was made by Respondent to Mr. Walther Ellis concerning who had accepted the second contract. Respondent admits he represented to Mr. Ellis that Mr. Griffin, controlling the transaction for buyers, had accepted the second contract. Mr. Ellis maintained that Respondent represented to him that the second contract had been accepted on his terms but he is not clear·whether Respondent told him Mrs. Griffin accepted it or who accepted it. (Walther Ellis Deposition Page 22). Mrs. Ellis's testimony presents no independent confirmation of any of this as her information in all respects is second-hand. Mr. Brodersen's testimony is that the Respondent's representation to him was that "the Griffins" had accepted the second contract for purchase and sale and that Respondent told Mr. Ellis the same thing in Brodersen's presence and also told Brodersen that the last copy of the signed contract had been mailed to Mr. Ellis by Respondent the day previous to this three-way conversation. Mr. Brodersen thought Mr. Ellis never got the fraudulent contract but testified further that Respondent later admitted to Brodersen that he had altered this copy of the second contract so as to fraudulently reflect Mrs. Griffin's signature and further admitted to Brodersen that he, Respondent, had mailed that fraudulent copy to Mr. Ellis. Mr. Brodersen never saw the fraudulent contract. Mr. Ellis testified to receiving in the mail a copy of the second contract with a suspicious-looking set of signatures which he turned over to his attorney. The parties stipulated the attorney does not now have the contract copy. By itself, the testimony of Investigator Jacobs that Respondent by telephone admitted falsifying Mrs. Griffin's signature onto a copy of the second contract for purchase and sale and further admitted destroying one copy of the fraudulent contract would fail as not having the proper predicate for voice identification. However, in light of Mr. Ellis's and Mr. Brodersen's testimony, Mr. Jacobs' testimony on Respondent's creation of the fraudulent document is accepted as corroborative pursuant to Section 120.58 Florida Statutes. The remainder of his testimony is rejected.

9. At no time did Catherine A. Griffin and/or Donald Griffin as her agent or on his own behalf accept the Ellis' offer contained in the second contract for sale and purchase nor did Catherine A. Griffin nor Donald Griffin ever execute the second contract as a buyer. The transaction was never closed and Mrs. Griffin was returned her deposit money when she requested it in September 1984. Mr. Ellis admits having told Respondent he was not anxious for the deal to close and did not care if the deal failed to go through.

   
   

10. Mr. Griffin spoke at length and with considerable feeling at the hearing of his desire that Respondent not receive a permanent record as a result of a single mistake committed while under stress from Respondent's father's medical condition. That Respondent was under such stress when all this occurred was confirmed by Mr. Brodersen.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1) Florida Statutes (1983).

    
    

12. Section 475.25(1)(b) Florida Statues, (1983), authorizes the Florida Real Estate Commission to suspend or revoke a real estate license, or to issue a reprimand against such license, and/or impose an administrative fine not exceeding

    $1,000.00 for each separate offense, if it finds a licensee has 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".

    
    

13. The Administrative Complaint charges that the Respondent violated the statute by advising the sellers, Walther and Blanca Ellis that the prospective buyer, Catherine A. Griffin, had accepted their offer to purchase their property when in fact, Catherine Griffin had not accepted said offer and further that Respondent photocopyed the signature of Catherine

    A. Griffin onto the Ellis offer (second contract for sale and purchase) in order to make it appear that Catherine A. Griffin had accepted the offer and that said photocopying was done without the knowledge or consent of Catherine A. Griffin.

    
    

14. The Petitioner has established by clear and convincing evidence that Respondent orally represented that the Griffins

    (plural)had accepted and signed the second contract. The fraudulent representation here was that the deal had been accepted on the sellers' terms by somebody, when in fact it had been accepted by nobody. That is the crux of the fraud, not whether the words orally employed by Respondent were "the Griffins" or "Catherine A. Griffin," and notwithstanding whether a fraudulent contract was actually devised or not. However, it is specifically concluded, that a fraudulent contract was created by Respondent to bolster his oral representation.

    
    

15. The facts as found do not establish any fraud or impropriety on Respondent's part in connection with Mr. Ellis signing his wife's name to the second contract since this was done with her express knowledge and consent, and it is particularly noted that although the parties apparently felt this issue was litigable it was never charged as part of the Administrative Complaint.

    
    

16. For all of the above-stated reasons, the Respondent, by his conduct, representations, and actions, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, and breach of trust in a business transaction in violation of Subsection 475.25(1)(b) Florida Statutes (1983). Petitioner requests a three year suspension and $1,000 fine be recommended.

    
    

17. However, there is no evidence of any prior offenses by way of aggravation of the offense and in mitigation thereof, there is evidence that Respondent's actions occurred as a result of severe stress occasioned by his father's illness. There is also Mr. Griffin's strong argument in favor of leniency.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That a final order be entered whereby Respondent Thomas F. Steffan Jr.'s licenses as a real estate salesman and broker be suspended for a period of one year and that he pay an administrative fine of $1,000.00.

DONE and ORDERED this 8th day of October, 1985, in Tallahassee, Florida.

ELLA JANE P. DAVIS

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 8th day of October, 1985.

COPIES FURNISHED:

James T. Mitchell, Esquire Staff Attorney

Department of Professional Regulation-Legal

Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

Thomas F. Steffan Jr., Pro Se 18645 Sandpiper Road

Ft. Myers, Florida

Harold R. Huff, Director Department of Professional

Regulation-Legal Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

Fred Roche, Secretary

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-000683

Orders for Case No: 85-000683