STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-3776

) DEBORAH LYNN TENCZELIUS AND ) THE RENTAL CENTER, INC., )

)

Respondents. )

)

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 January 5, 1987, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Arthur R. Shell, Jr., Esquire

Department of Professional Regulation

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

For Respondents: C. Michael Shalloway, Esquire

909 North Dixie Highway

West Palm Beach, Florida 33401 PRELIMINARY STATEMENT

By administrative complaint filed with the Division of Administrative Hearings on September 29, 1985, Petitioner, Department of Professional Regulation, Division of Real Estate, seeks to discipline Respondents, Deborah Lynn Tengzelius and The Rental Center, Inc., licensed real estate brokers in the State of Florida. The Petitioner asserts that Respondents failed to refund a rental fee upon demand in violation of Subsections 475.453(1), and therefore 475.25(1)(e), Florida Statutes.

At final hearing the Petitioner called Elizabeth A. Wilson and Barbara Ann Carris as witnesses. Petitioners exhibits 1-3 were received into evidence.

Respondents called Deborah Lynn Tengzelius as a witness. Respondents' exhibits 1A, 1B and 2 were received into evidence.

The transcript of hearing was filed January 26, 1987, and the parties were granted leave until February 5, 1987, to file proposed findings of fact.

Respondents filed proposed findings of fact in a timely manner, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Deborah Lynn Tengzelius (Tengzelius), was at all time material hereto a licensed real estate broker in the State of Florida, having been issued license number 0229363. Tengzelius was the qualifying broker for Respondent, The Rental Center, Inc. (Rental Center), a corporation licensed as a real estate broker in the State of Florida under license number 0229362.

   
   

2. Respondents are, inter alia, engaged in the business of providing rental information for a fee. Consequently, in October 1983, pursuant to the requirements of Rule 21V-10.30, Florida Administrative Code, Respondents forwarded to the Petitioner, Department of Professional Regulation, Division of Real Estate (Department), a copy of their proposed rental information agreement. By letter of October 31, 1983, the Department returned Respondent's proposed agreement with instructions to correct certain provisions to bring it into compliance with Section 475.453, Florida Statutes. Respondents made the necessary changes, and by letter of November 15, 1983, the Department advised them that their agreement now appeared to comply with the rules and regulations of the Florida Real Estate Commission.

   
   

3. On August 22, 1985, Tengzelius, on behalf of the Rental Center, executed its standard rental information agreement with Elizabeth Wilson (Wilson) in exchange for a fee of $60.00. That agreement, previously approved by the Department, provided in part:

   
   

   NOTICE: Pursuant to Florida law, if the rental information provided under this contract is not current or accurate in any material aspect you nay demand within thirty

   (30) days of this contract date a return

   of your full fee paid. If you do not obtain a rental you are entitled to receive a return of seventy-five (75 percent) percent of the fee paid if you make a demand within thirty

   (30) days of this contract date.

   
   

   CLIENT COMMITMENT

   As a prospective Tenant, I hereby agree:

   1. To make any refund request within 30 days following above date, in writing, and delivered to The Rental Center, Inc. ....

   (Emphasis added).

   
   

4. In mid-September, less than 30 days after the rental information agreement was signed, Wilson telephoned the Rental Center and requested a return of the fee she had paid. Wilson averred that she was not able to obtain a rental. Respondents refused to return 75 percent of the fee because Wilson's request was not in writing.

   
   

   CONCLUSIONS OF LAW

   
   

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

6. Pertinent to this case Section 475.453, Florida Statutes, provides:

   
   

   1. Each broker or salesman who attempts to negotiate a rental, or who furnishes rental information to a prospective tenant, for a fee paid by the prospective tenant shall provide such prospective tenant with a contract or receipt, which contract or receipt contains provision for the repayment of any amount over 25 percent of the fee to the prospective tenant if the prospective tenant does not obtain a rental. If the rental informa- tion provided by the broker or salesman to a prospective tenant is not current or accurate in any material respect, the full fee shall be repaid to the prospective tenant upon demand. A demand from the prospective tenant for the re- turn of the fee, or any part there- of, shall be made within 30 days following the day on which the real estate broker or salesman has con- tracted to perform services to the prospective tenant. The contract or receipt shall also conform to the guidelines adopted by the commission in order to effect disclosure of material information regarding the service to be provided to the prospective tenant.

      
      

7. There is no proof that the rental information provided Wilson was not current or accurate in any material aspect.

   
   

   (2) The commission may adopt a guideline for the form of the contract or receipt required to be provided by brokers or salesmen pursuant to the provisions of subsection (1).

   
   

   (3)(a) Any person who violates any provision of subsection (1) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083,

   or s. 775.084.

   
   

   (b) In addition to the penalty prescribed in paragraph (a), the license of any broker or salesman who participates in any rental information transaction which is in

   violation of the provisions of subsection (1) shall be subject to suspension or revocation by the commission in the manner prescribed by law.

   
   

8. The Department has enacted Rule 21V-10.30, Florida Administrative Code, to implement Section 475.453. That rule provides:

   
   

   21V-10.30 Rental Company Contracts.

   1. Any broker or salesman who attempts to negotiate a rental or who furnishes information to a prospective tenant for a fee paid by the tenant shall provide such prospective tenant with a contract or receipt agreement in writing which contract or receipt agreement must contain the following provision or legend in type size 10 point bold or larger:

      
      

      NOTICE

      PURSUANT TO FLORIDA LAW:

      
      

      If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of your full fee paid. If you do not obtain a rental you are entitled to

      receive a return of 75 percent of the fee paid, if you made a demand within

      30 days of this contract date.

      
      

   2. Each contract or receipt agreement shall be contained on one side of one page not larger than 8 1/2 inch x 11 inches. The type size of the balance of the terms of the contract shall be in a size not smaller than 8 point type.

      Each rental data company shall furnish to the Department a copy of its contract or receipt agreement currently being utilized within 30 days of the commencing use of such agreement.

      
      

9. The Department charges that Respondents failure to refund Wilson 75 percent of the fee paid constituted a violation of Section 475.453, and therefore Section 475.25(1)(e), Florida Statutes. Respondents reply that the agreement, approved by the Department, required that refund requests be in writing. Since Wilson did not request her refund in writing, Respondents conclude they did not violate Section 475.453 by refusing her request.

10. Respondents, pursuant to the mandate of Rule 21V-10.30(2), Florida Administrative Code, submitted a copy of their proposed agreement to the Department. That agreement contained a requirement that refund requests be in writing. By letter of October 31, 1983, the Department advised Respondents that their agreement did not comply with the state statute for certain specified reasons, none of which included the provision that refund requests be in writing, and told Respondents to submit a new agreement. Respondents made the changes the Department demanded, and were subsequently advised that their agreement, which included the provision that refund requests be in writing, appeared to comply with the rules and regulations of the commission.

    
    

11. Section 475.453(2), Florida Statutes, grants the Department the authority to adopt a guideline for the form of the agreement required by Section 475.453(1). Accordingly, where, as here, a broker has submitted a copy of her rental form as required by rule and the Department undertakes to conform the agreement to statutory and rule requirements, the broker's assumption that the provisions of her agreement comply with Section 475.453(1) is reasonable. The Department's attempt, retroactively, to intrude on that reliance, cannot be countenanced. See: Heckler v. Community Health Services of Crawford County, Inc., 104 S.Ct. 2218 (1984), and Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986).

    
    

12. In reaching the conclusion that the Department is estopped in this case, I do not suggest that Wilson's oral request for refund was not an adequate demand under Section 475.453. Rather, I conclude only that Respondent's reliance on their contract, approved by the Department, was reasonable, and that any retrospective characterization of their conduct as improper is unwarranted.

RECOMMENDATION

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

That the administrative complaint be DISMISSED with prejudice.

DONE AND ORDERED this 10th day of February, 1987, in Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3776

Respondents submitted an unnumbered 13 paragraph memorandum of law and facts". These paragraphs have been number 1-13 and addressed as follows:

1. Addressed in paragraph 4.

2. Addressed in paragraph 3.

3-4. Addressed in conclusions of law. 5-7. Addressed in paragraph 2.

8-13. Addressed in conclusions of law if pertinent. Respondent's suggestion that the doctrine of entrapment is applicable to the facts of this case is ill-founded. See: Thomas v. State, 243 So.2d 200 (Fla. 2d DCA 1971).

COPIES FURNISHED:

Arthur R. Shell, Jr., Esquire Department of Professional

Regulation

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

C. Michael Shalloway, Esquire 909 North Dixie Highway

West Palm Beach, Florida 33401

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

Regulation

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

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings Benton, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-003776

Orders for Case No: 86-003776