STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5028

)

BARBARA B. WISE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 8, 1990, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

DPR - Division of Real Estate

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

For Respondent: Barbara B. Wise, pro se

1059 42nd Avenue, Northeast St. Petersburg, Florida 33703

STATEMENT OF THE ISSUES

Whether or not Respondent's real estate license should be disciplined, because, as alleged, Respondent is guilty of fraud, misrepresentation, concealment, false promises and pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction; failed to place a trust deposit with her employing broker and operated as a broker while licensed as a salesman in violation of Subsections 475.25(1)(b),

1. and (k), Florida Statutes.

   
   

   PRELIMINARY STATEMENT

   
   

   By Administrative Complaint filed on August 17, 1989, Petitioner, Department of Professional Regulation, Division of Real Estate, alleges that Respondent violated Subsections 475.25(1)(b), (e) and (k), Florida Statutes, and seeks to impose disciplinary sanctions against Respondent based thereon.

   
   

   Respondent disputed the charges and requested a formal hearing which was held on February 8, 1990.

   At the hearing Petitioner presented the testimony of Marsha Tenny, J. W. Shrive, Michael Riggins and Gail McDonnell. Petitioner's exhibits 1-4 were stipulated and received in evidence. Respondent testified on her behalf and called as a witness, Mr. McRay. Respondent's exhibit 1 was stipulated into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. During times material hereto, Respondent, Barbara B. Wise, was a licensed real estate salesman in Florida, having been issued license number 0484022.

      
      

   2. The last license issued Respondent was as a salesman, c/o Grover Goheen Realty, Inc., at 414 Twelfth Avenue, North, St. Petersburg, Florida.

      
      

   3. During October 1988, Respondent, while licensed and operating as a salesman in the employ of her broker, Goheen Realty, Inc., solicited and obtained a lease listing agreement from Michael Riggins. As a result of that listing, Marsha Tenny contacted Respondent and requested assistance in obtaining a seasonal lease for the period January 1989 through April 30, 1989. Ms. Tenny made Respondent aware of her needs respecting a lease property to include wheelchair access as her husband was wheelchair bound. As a result of visiting approximately three available units, Respondent secured a seasonal lease from Michael Riggins for Marsha Tenny.

      
      

   4. The lease agreement for the Tenny's was the first rental listing that Respondent had obtained and it suffices to say that she was a novice in the area of securing lease agreements. Likewise, her employing broker did very little volume in rentals as her broker was of the opinion that the net commissions were not sufficient to defray the time and effort involved for several reasons including the limited availability of rental properties. As a result, her broker was unable to provide guidance.

      
      

   5. Pursuant to the aforementioned lease agreement, Respondent named several options by which Marsha Tenny could secure the apartment to include sending a personal check to her and after negotiating it she would in turn pay the rental fees directly to the landlord. Other options included Ms. Tenny sending separate checks to the landlord for the apartment and a check for the commission fees to her employing broker or she could deal directly with the landlord and remit a separate check to her employing broker for fees. Ms. Tenny elected to send a money order in the amount of $1,500.00 to Respondent. After she negotiated the check she received from Marsha Tenny, Respondent retained her commissions and did not pay her broker the pro-rata share that the broker was entitled to.

      
      

   6. Respondent did not inform her broker of the Riggins/Tenny lease agreement when she received the deposit from the Tennys on or about October 23, 1988. Respondent negotiated the Tenny's deposit check by depositing same into her personal account and drew a check in the amount of $1,100.00 as the rental deposit and remitted it to Mr. Riggins on October 2.1, 1988. Respondent retained the $400.00 balance as her fee.

      
      

   7. Respondent tendered her employing broker its portion of the commission fees ($174.00) on February 24, 1989.

   8. During early February 1989, the Tennys expressed dissatisfaction with the apartment and demanded a refund from Respondent. Respondent wrote the Tennys a letter of apology and submitted a money order to Marsha Tenny in the amount of $50.00 on February 3, 1989. (Petitioner's Exhibit 4.)

      
      

   9. As stated, Respondent was inexperienced with the rental business in Pinellas County. She was at the time undergoing other family problems, including tending to a sister in Orange County, Florida, who was very ill. At the time, Respondent commuted from Pinellas County to Orange County several times per week to visit with and assist her sister. Additionally, Respondent's office was being relocated and the staff was having to relay messages to her through her husband and other salesman employed with her broker.

      
      

   10. In addition to sending the Tennys a money order in the amount of

       $50.00, Respondent agreed to repay the Tennys the entire remaining balance of the finders fee that she received from the Riggins/Tenny leasing agreement as soon as she was financially able to do so. (Petitioner's Exhibit 4.)

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes (1989).

       
       

   12. The parties were duly noticed pursuant to Chapter 120, Florida Statutes (1989).

       
       

   13. The Petitioner's authority is derived from Chapter 475, Florida Statutes.

       
       

   14. Subsection 475.25, Florida Statutes (1989), provides in pertinent part, that the Florida Real Estate Commission may suspend a license for a period not exceeding ten (10) years; revoke a real estate license; impose an administrative fine not to exceed $1,000.00 for each count or separate offense; and may impose a reprimand or, any or all of the foregoing, if it finds that a licensee has violated Chapter 475, Florida Statutes.

       
       

   15. Clear and convincing evidence was offered to establish that Respondent failed to immediately place a deposit with her employing broker within the purview of Subsection 475.25(1)(k), Florida Statutes.

       
       

   16. Clear and convincing evidence was offered herein to establish that Respondent, in dealing with the Tennys in securing a lease agreement from Michael Riggins, operated as a broker without a broker's license. However, Respondent's actions amounted to, at most, a technical violation of Subsection 475.25(1)(e), Florida Statutes (1989). This so because Respondent admittedly was new in dealing with the rentals of real property and her broker did not provide the guidance that she needed. In addition, Respondent was undergoing a great deal of family stress as relates to the illness of her sister and other pressures relative to the office relocation. The fact that Respondent has tendered a portion of her commission fees plus a promise to repay the Tennys the entire amount of the commission that she received, are matters which were considered in this determination.

   17. Insufficient evidence was offered herein to establish that Respondent 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, as alleged.

RECOMMENDATION

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

Respondent be issued a written reprimand and placed on probation for a period of one (1) year. During the probationary period, Respondent shall enroll in an approved post-licensure course and shall satisfactorily complete the same prior to termination of probation.

DONE and ENTERED this 4th day of April, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1990.

Steven W. Johnson, Esquire DPR - Division of Real Estate

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

Barbara B. Wise

1059 42nd Avenue, N.E.

St. Petersburg, Florida 33703

Darlene F. Keller, Executive Director Kenneth E. Easley, Esq. Division of Real Estate Department of Prof. Reg.

400 West Robinson Street 1940 North Monroe Street

Post Office Box 1900 Suite 60

Orlando, Florida 32802 Tallahassee, FL 32399

Docket for Case No: 89-005028

Orders for Case No: 89-005028