STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 85-2227

)

RICHARD C. LIGHTNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on September 30, 1985, in Key West, Florida.

APPEARANCES

For Petitioner :James H. Gillis, Esquire

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Raymond O. Bodiford, Esquire

515 Whitehead Street

Key West, Florida 33040 PRELIMINARY STATEMENT

By a three count Administrative Complaint, filed July 27, 1985, Petitioner, Department of Professional Regulation, Division of Real Estate (Department), charges that Respondent, Richard C. Lightner: (1) is guilty of having acted as a broker or operated as a salesman for a person not registered as his broker, in violation of Subsections 475.25(1)(a) and 475.42(1)(b), Florida Statutes, (2) is guilty of having

collected money in connection with a real estate brokerage transaction except in the name of the employer and with the express consent of the employer, in violation of Subsections 475.25(1)(a) and 475.42 (l)(d), Florida Statutes, and (3) is guilty of fraud, 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 Subsection 475.25(1)(b), Florida Statutes.

At final hearing the Department called Lafayette S. Ward, Edward E. Gato, W. Ted Ernst, Jr., and Glenda L. Harris as witnesses. Department Exhibits 1-3 were received into evidence. Respondent testified on his own behalf. Respondent's Exhibits 1, 2, 4, and 5 were received into evidence.

The transcript of hearing was filed October 23, 1985. The parties were granted ten days from the date the transcript was filed in which to file proposed findings of fact and conclusions of law. Petitioner submitted timely proposed findings of fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order. No proposed findings were timely filed on behalf of Respondent.

FINDINGS OF FACT_

1. Respondent, Richard C. Lightner, was at all times material hereto a licensed real estate salesman in the State of Florida, having been issued license No. 0408120.

   
   

2. From on or before September 1983 through July 1984, Respondent was employed as a salesman by Century 21 Reliable Real Estate Associates, Inc. (Reliable) in Key West, Florida. Cynthia S. Meltzer was the sole owner of Reliable, and its qualifying broker.

   
   

3. In June 1983, W. Ted Ernst, Jr. became associated with Reliable as a salesman and on September 28, 1983, was granted active salesman/broker salesman status by the Department. At all times material hereto, Mr. Ernst was an attorney at law, duly licensed to practice law in the State of Florida.

   
   

4. At the end of September 1983 Ms. Meltzer left Key West, Florida, and returned to Chicago, Illinois, for "personal reasons." Prior to her departure Ms. Meltzer executed two agreements, each dated September 29, 1983.

5. The first agreement was a "Management Agreement" between Reliable and Respondent which provided:

   
   

   It is agreed that this management agreement is effective as of 29 September, 1983 and shall continue uncancellable until such time as manager [Respondent] shall obtain his Florida broker's license and exercise his option to purchase the company. The company hereby employs the manager and the manager accepts and agrees to be employed by the company. Both parties agree as follows:

   
   

   1. The manager is to be paid a salary of

      $1,000.00 monthly, when available.

      
      

   2. The manager is to receive in addition a reasonable expense account and fuel allowance when available, $200.00 maximum.

      
      

   3. Manager to be responsible for day to day operations of business with autonomy to make administrative decisions, non-broker policies, procedures, personnel recruitment, and terminations.

      
      

   4. The manager shall receive 33% of net of the business.

      
      

   5. Manager board dues and MLS fee to be paid by company.

      
      

   6. Company agrees to assign check signing privileges to manager.

      
      

6. The second agreement, titled "Interim Agreement," was executed by and between Reliable, Respondent, W. Ted Ernst, Jr., and Ms. Meltzer, individually. That agreement provided:

   
   

   1. That effective immediately W. Ted Ernst, Jr. as a duly licensed broker- salesman shall be entitled to commissions at a rate of 70% - 30% with 70% in his favor and 30% to CENTURY 21 Reliable Real Estate Associates, Inc. for any listings or sales

      that arise as a result of his personal efforts.

      
      

   2. That effective on or about December 1, 1983, W. Ted Ernst, Jr. shall become the duly licensed real estate broker for CENTURY

      21 Reliable Real Estate Associates, Inc. and shall be compensated at a rate of one-third of the net profits received for each calendar month, exclusive of commissions personally earned at a 70-30 rate as stated above and provided that in the event his share of the net proceeds is less than $100 for any month, that he be reimbursed by the corporation up to that amount for said month or months at the end of each calendar year the contract shall be in force.

      
      

   3. That the term of this contract shall be for one year or until Richard C. Lightner III obtains his Florida real estate broker's license, whichever occurs first.

* * *

1. That Richard C. Lightner III shall in addition to his duties as a licensed salesman, serve as office manager overseeing the day to day operation and control of the above-named real estate business, as per the terms of the separate management agreement between he [sic] and the corporation.

   
   

2. That Cynthia S. Meltzer shall retain 100% control of the corporate stock, retain her licensed broker-salesman status, and serve as sole officer and director of the corporation for the term hereof.

   
   

3. On or about December 20, 1983, Mr. Ernst applied to the Department for designation as the qualifying broker for Reliable. However, since Mr. Ernst was not a corporate officer of Reliable, his application was denied.

   
   

4. Between December 1983 and April 1984, Respondent was in contact with Ms. Meltzer, or her Chicago attorneys, attempting to secure Mr. Ernst's appointment as an officer of Reliable. Finally, Respondent was advised by Ms. Meltzer's attorney that

   the appointment would be sent only when Respondent paid Ms. Meltzer $8,000.00. Respondent refused payment.

   
   

5. By letter dated March 30, 1984, and filed with the Department April 19, 1984, Ms. Meltzer resigned her position as an officer, director, and broker for Reliable. Contemporaneously, Mr. Ernst submitted an application to the Department requesting his designation as qualifying broker for Tropical Business Opportunities, Inc. (Tropical), resigned as broker-salesman for Reliable, and "abandoned any thoughts of becoming a broker for [Reliable]." Mr. Ernst, the owner of Tropical, was subsequently qualified as Tropical's broker.

   
   

6. On May 11, 1984, Respondent on behalf of Reliable, presented a contract to Century 21 American Reliance Realty, Inc. (American) for the purchase of a home in Key West, Florida, and represented to American's broker that Reliable's qualifying broker was an "attorney." Pursuant to the terms of the contract, the sales commission was to be evenly divided between Reliable, as selling broker, and American, as listing broker. When the sale closed in September 1984, the commission was evenly divided between Reliable and American.

   
   

7. Respondent's assertion that he first learned that Ms. Meltzer had resigned, as the broker for Reliable, in July 1984, and that he operated under a "good faith" belief she was the broker for Reliable until that time, is inherently improbable and unworthy of belief.

   
   

8. Under the terms of the parties' September 29, 1983, agreements, it was contemplated that Ms. Meltzer would not be the qualifying broker for Reliable after December 1983. Further, Respondent knew, as early as December 1983, that Ms. Meltzer would not be returning to Key West, and that Mr. Ernst had failed to qualify as the broker for Reliable. Notwithstanding these facts, Respondent carried on "business as usual" for over seven months presenting contracts, accepting deposit monies, and paying commissions. Respondent, without benefit of licensure, acted as broker for Reliable.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

10. The Department has established by clear and convincing evidence that Respondent violated Subsections 475.25(1)(a) and

1. and 475.42(1)(b) and (d), Florida Statutes.

   
   

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

   
   

   RECOMMENDED that the Department enter a Final Order:

   
   

   1. Suspending Respondent's real estate license for one (1) year.

      
      

   2. Imposing an administrative fine against Respondent in the amount of two thousand dollars ($2,000.00).

DONE AND ENTERED this 7th day of November, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK, 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 7th day of November, 1985.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Raymond O. Bodiford, Esquire

515 Whitehead Street Key West, Florida 33040

Harold Huff, Executive Director Department of Professional Regulation Division of Real Estate

P. O. Box 1900 Orlando, Florida 32802

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

APPENDIX

Petitioner's proposed findings of fact numbered 1-7, the last sentence of number 8, and number 9 have been adopted in this Recommended Order. The balance of Petitioner's proposed findings were not adopted for the following reasons:

Number 8, first two sentences--not deemed necessary to the results reached.

Number 10--not supported by competent evidence.

Docket for Case No: 85-002227

Orders for Case No: 85-002227