Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: Jan. 20, 1989
Summary: Factual dispute between respondent and buyer resolved in respondent's favor.
88-4384.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ) ESTATE, )
)
Petitioner, )
)
vs. ) CASE NO. 88-4384
)
HOSSEIN AFGHANI, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cause on December 14, 1988, at Tampa, Florida.
APPEARANCES
For Petitioner: Steven W. Johnson, Esquire
Department of Professional Regulation
400 West Robinson Street Orlando, Florida 32802
For Respondent: Usher L. Brown, Esquire
201 South Orange Avenue Suite 900 Barnett Plaza Orlando, Florida 32801
By Administrative Complaint filed August 25, 1988, the Department of Professional Regulation, Division of Real Estate, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Hossein Afghani, Respondent. As grounds therefor, it is alleged that in altering the commission on a bid to purchase a residence for sale by the Housing and Urban Development agency (HUD) Respondent was guilty of fraud, misrepresentation concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes. At the hearing, Petitioner called three witnesses, Respondent called eight witnesses including himself, and eight exhibits were admitted into evidence. Proposed findings have been submitted by the parties. The only disputed factual issue is whether Respondent obtained permission of the buyer to amend the bid offer by increasing the broker's commission $1000. Since Petitioner's proposed findings do not address this issue, all proposed findings are accepted.
FINDINGS OF FACT
At all times relevant hereto Hossein Afghani, Respondent, was licensed as a real estate salesman in Florida and was working for Century 21/Bill Nye Realty in Zephyrhills, Florida.
Since receiving his real estate license, Respondent has been involved in approximately 40 sales of residential property. Other than the accusations made in these proceedings, no other charges of impropriety involving a real estate transaction have been made against Respondent.
Prior to the filing of the complaint which led to these proceedings, Respondent was the most productive salesman in the Bill Nye realty office.
Mohamid Ali Iranmanesh was interested in purchasing a foreclosed residence from HUD and was referred to Respondent. Respondent showed Iranmanesh several properties and submitted bids for Iranmanesh on two of these properties. On neither was Iranmanesh the successful bidder.
Iranmanesh saw a house on Perez Street in Tampa which was being offered for bids by HUD and was shown the house by the lady who was showing the house to another client. He liked the house and contacted Respondent who prepared a bid offer for $67,000 to be submitted to HUD.
At Iranmanesh's insistence, when the bid offer was prepared, the commission was placed at 2% or $1340. Iranmanesh gave Respondent a check for
$2000 as downpayment.
On the sale of repossessed homes by HUD, a commission of up to 6% of the bid price will be paid by HUD. This commission does not affect the bid price in determining the successful bidder for the property.
After preparing the bid offer and leaving Iranmanesh, Respondent concluded that the commission was inadequate and telephoned Iranmanesh to tell him he would not submit the bid offer with that commission and requested Iranmanesh's concurrence to up the commission $1000 to $2340.
Although Iranmanesh denies he was ever asked by Respondent for permission to increase the commission to $2340, it is concluded that Iranmanesh agreed to this change in the commission. This conclusion is influenced by the following:
The change would not affect the bid price or cost the bidder any
money;
Respondent's roommate testified to a telephone call between
Respondent and Iranmanesh just before the bid submission, in which a change in the commission was discussed;
Iranmanesh was satisfied with the contract until he learned the next highest bid was $60,000, $7,000 less than the bid Iranmanesh submitted; and,
Iranmanesh agreed to the deletion of item 11 on the offer at the same time the commission was changed by Respondent.
When Respondent telephoned Iranmanesh about the change in the commission, the latter also agreed that Respondent could delete item 11 which related to a forfeiture of the deposit if the buyer defaulted. Iranmanesh recalls authorizing this change in the bid offer.
When Iranmanesh was advised his was the successful bid for the property, he inquired about the next highest bid and learned that bid was
$60,000. He then tried to negotiate with HUD for the lower sum, but was unsuccessful. Iranmanesh then noted a change in the commission which had not been initialed by him and asserted the bid he had submitted had been changed without his consent and claimed the right to rescind the bid.
A personal dispute had arisen between Respondent and Iranmanesh, and during these proceedings the latter attempted to assume the role of prosecutor and evinced a keen interest in punishing Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
While all changes to a contract should be initialed by the parties to eliminate the likelihood of one party subsequently renouncing the change as unauthorized, there is no legal requirement that changes to contracts be initialed. A principal may authorize an agent to act on the principal's behalf, and the acts of such an agent become the acts of the principal.
Here Petitioner has the burden to prove the charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). If Iranmanesh authorized Respondent to change the commission on the contract that was submitted to HUD, Respondent did not violate Section 475.25(1)(b), Florida statutes, as alleged.
Since the finding has been made that Iranmanesh authorized this change in the commission as he authorized the deletion of item 11, Respondent cannot be found guilty of violating Section 475.25(1)(b), Florida statutes.
From the foregoing, it is concluded that Petitioner has failed to prove by clear and convincing evidence that Hossein Afghani changed the commission on the bid submitted to HUD on behalf of Iranmanesh without the approval of Iranmanesh. Accordingly, Respondent must be found not guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged. It is
RECOMMENDED that a Final Order be entered dismissing all charges contained in the Administrative Complaint filed August 25, 1988, against Hossein Afghani.
ENTERED this 20th day of January, 1989, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2900 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1989.
COPIES FURNISHED:
Steven W. Johnson, Esquire Department of Professional Regulation
400 West Robinson Street Orlando, Florida 32802
Usher L. Brown, Esquire
201 South Orange Avenue Suite 900 Barnett Plaza Orlando, Florida 32801
Darlene F. Keller Division Director Division of Real Estate
400 West Robinson Street Orlando, Florida 32802
Bruce D. Lamb, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 88-004384
Orders for Case No: 88-004384
