STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-3216

) PATRICIA A. REGAS and VICKIE ANN HAY, )

)

Respondents. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on September 24, 1991, in Ft. Myers, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation Division of Real Estate

400 W. Robinson Street Orlando, Florida 32802

For Respondent Hay: Vickie Ann Hay, pro se

811 Fireside Court

Lehigh Acres, Florida 33936

For Respondent Regas: Robert L. Ratliff, III, Esq.

2359 Periwinkle Way

Sanibel Island, Florida 33957 STATEMENT OF THE ISSUE

The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 18, 1991, Petitioner filed an Administrative Complaint alleging that the Respondents had violated sections of Chapter 475, Florida Statutes. Specifically, it was alleged that Respondent Hay used a "straw man" and prepared

173 contractual offers to purchase various vacant lots from various owners at various prices, that each offer represented that the "straw man" had placed a deposit related to each offer into escrow, and that there were no such escrow deposits made. The Administrative Complaint alleged that Respondent Regas, employed by and acting on behalf of Fleetwood Title Corporation, represented and acknowledged receipt of such escrow deposits.

The Respondents disputed the factual allegations and requested a formal hearing. The Petitioner forwarded the request to the Division of Administrative Hearings for further proceedings.

Just prior to commencement of the hearing, Petitioner and Respondent Regas entered a settlement stipulation. Upon motion of the Petitioner, the allegations related to Respondent Regas were severed, and the hearing proceeded on the allegations related to Respondent Hay.

At the hearing, Petitioner offered exhibits A-J, which were admitted into evidence. Respondent Hay thereafter admitted to the allegations set forth in paragraphs 1-10 of the Administrative Complaint. Respondent Hay testified on her own behalf and offered one exhibit which was admitted into evidence.

No transcript of the hearing was filed. The Petitioner timely filed a proposed recommended order. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. Vickie Ann Hay is, and at all times material to this case was, a licensed real estate broker in the State of Florida, license #1483791. The most recent license was issued as a broker-salesman to AAIM Realty Group, Inc., 38 Homestead Road, Lehigh Acres, Florida 33936-6646.

   
   

2. In or about March of 1990, Respondent Hay, while licensed and operating as a real estate salesman in the employ of C. Bagins First, Inc., was contacted by Vicki Wright, daughter of Respondent Regas. Ms. Wright told Respondent Hay that Ms. Wright had referred buyers interested in purchasing numerous vacant lots.

   
   

3. During March and April of 1990, Respondent Hay used her father's name as a "straw buyer" and prepared approximately 173 contractual offers to purchase vacant lots from various owners at various prices.

   
   

4. The offers recited that the "straw buyer' had placed in escrow a $100 deposit with Fleetwood Title Corporation with each offer to purchase. There were no such deposits made. Some of the offers were accepted verbally and others were accepted in writing by the sellers.

   
   

5. With 173 offers being made, there should have been a total escrow deposit of $17,300 made in connection with the offers to purchase. There were no deposits made. Respondent Hay knew or should have known that no deposits were made. Respondent Hay failed to properly advise the sellers and other real estate licensees, at the time the offers to purchase were presented, that the deposits had not been made.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

   
   

7. Petitioner has responsibility for disciplinary action taken against licensed real estate brokers. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   In that Respondent Hay admitted the allegations of the Administrative Complaint, the Petitioner has met the burden.

   
   

8. Section 475.25(1), Florida Statutes, in relevant part provides that the licence of a Florida real estate broker may be disciplined by the Petitioner when the Respondent:

   
   

   (b) 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 in this state or any other state, nation, or territory; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate

   transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design, or scheme. It is immaterial to the guilt of the licensee that the victim or intended victim

   of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct;

   or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public.

   
   

9. In this case, Respondent Hay has violated Section 475.25(1)(b), Florida Statutes, by fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction. In the 173 offers to purchase, Respondent Hay misrepresented the offer and indicated that deposits from the prospective purchaser had been placed in escrow. There were no deposits made. Respondent Hay knew or should have known that no deposits were made and failed to properly advise the sellers and other real estate licensees, at the time the offers to purchase were presented, that the deposits had not been made.

   
   

10. Violation of disciplinary statutes is punishable by denial of a license renewal application, or by a license suspension for a period not to exceed ten years, or by revocation of the license, or through an administrative fine not to exceed $1,000 for each count or separate offense, or through issuance of a reprimand, or through any combination thereof. Section 475.25(1), Florida Statutes. Guidelines for the imposition of disciplinary action are as stated in Chapter 21V-24, Florida Administrative Code. Except where otherwise provided, the minimum penalty which may be imposed for each violation is a reprimand, or a fine up to $1,000 per count, or both. The recommended range of the penalty imposed for a violation of Section 475.25(1)(b), Florida Statutes, merits up to five years suspension or revocation. Rule 21V-24.001(3)(c), Florida Administrative Code.

RECOMMENDATION

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

that the Department of Professional Regulation, Division of Real Estate, enter a Final Order reprimanding Respondent Vickie Ann Hay, placing the licensee on probation for a period of one year, imposing a fine of $1,000, and requiring Respondent Hay to complete a 45 hour salesman's postlicensing course.

DONE and ENTERED this 2nd day of December, 1991, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 2nd day of December, 1991.

APPENDIX TO RECOMMENDED ORDER

Respondent Vickie Ann Hay did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order, except as follows:

3. At hearing, the Petitioner amended the allegation to state that Ms. Wright "referred" buyers interested in purchasing the lots.

6-7. Rejected, irrelevant. The allegations related to Respondent Regas were severed and are not relevant to this Recommended Order.

COPIES FURNISHED:

Darlene F. Keller, Director Division of Real Estate

Department of Professional Regulation Hurston North Tower

400 W. Robinson Street

P.O. Box 1900

Orlando, Florida 32802

Jack McRay General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Steven W. Johnson, Esquire

P. O. Box 1900

Orlando, Florida 32802-1900

(407) 423-6134

Ms. Vickie Ann Hay 811 Fireside Court

Lehigh Acres, Florida 33936 (813) 368-6444

Robert L. Ratliff, III, Esq. 2359 Periwinkle Way

Sanibel Island, Florida 33957

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-003216

Orders for Case No: 91-003216