STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-4555

)

PAUL LEE KRAMER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on October 16, 1991, in Orlando, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation

400 W. Robinson Street

P.O. Box 1900

Orlando, Florida 32802

For Respondent: Paul Lee Kramer, pro se

1042 Okopesa Avenue

Orlando, Florida 32807 STATEMENT OF THE ISSUES

An administrative complaint dated June 24, 1991, alleges that Respondent, Paul Lee Kramer, violated Section 475.25(1)(b), F.S. by misrepresentation, concealment, false pretenses, and the like in a business transaction, by failing to disclose the frame construction of a house to buyers seeking a block constructed house. The issue for resolution in this proceeding is whether that violation occurred, and, if so, what license discipline is appropriate.

PRELIMINARY STATEMENT

Respondent requested a formal administrative hearing on the complaint, and the case was referred to the Division of Administrative Hearings.

The parties agreed to conduct the hearing by telephone and they, their witnesses and the court reporter gathered at the appointed time at a room in the Hurston Building equipped with a speaker phone. The Hearing Officer participated by telephone from Tallahassee, Florida.

Petitioner presented the testimony of the following witnesses: Phyllis Albano, Cheryl Cancel, Gene Bennett, Ken Nason, Sam Avola, Gail Moncla, and Alvin Smith. Petitioner's exhibits A-F were received in evidence without objection. They were marked at the hearing by the court reporter and were forwarded by the reporter to the hearing officer at the close of the proceeding.

Mr. Kramer testified in his own behalf and presented no exhibits.

No transcript was filed. Petitioner filed a proposed recommended order on October 28, 1991. The findings of fact proposed therein have been substantially adopted.

FINDINGS OF FACT

1. Respondent, Paul Lee Kramer, is now and was at all times material hereto, a licensed real estate salesman in the state of Florida, having been issued license number 0532049 in accordance with Chapter 475, F.S.

   
   

   The last license issued was as a salesman, c/o Century 21 Homes and Investments Realty, Inc. 601 No. Primrose Drive, Orlando, Florida.

   
   

2. From October 1989 until December 1990, Mr. Kramer was licensed as a salesman with Century 21 All American Realty, Inc., 1000 No. Magnolia Avenue, Orlando, Florida.

   
   

3. On or about October 3, 1990, a residence located at 4811 Hopespring Drive, Orlando, Florida, was listed for sale. Cheryl Cancel, a licensed real estate salesperson employed by Real Estate Professionals, handled the listing and prepared the description for the multi-listing service (MLS). On the listing form Ms. Cancel inadvertently entered the wrong code, #15, indicating the house was of block construction. In another section of the form she properly indicated the house was wood frame construction. The multi-listing form was, therefore, confusing and misleading.

   
   

4. Phyllis Albano and Ken Nason were shown the home by Paul Kramer some time in October 1990. They were looking for block construction because of their concern about termites. They were anxious to buy, as they were living in a cramped apartment with four children. Neither Ms. Albano nor Mr. Nason were sophisticated in building construction.

   
   

5. On the day of the site visit Mr. Kramer and the potential buyers walked around the house and examined its exterior. It was clearly wood exterior on a concrete slab. Mr. Kramer surmised that it was wood paneling over block construction, and assured Ms. Albano and Mr. Nason that the house was block.

   
   

6. The parties signed a contract for purchase, with a closing date of October 30, 1990. Some minor repairs had to be made prior to closing, including the repair of some wood rot on the exterior.

   
   

   The day before the closing, Paul Kramer was on the site when the exterior was being repaired. He realized at that point that the house was not simply wood veneer over concrete, but rather was wood frame construction. He did not inform Ms. Albano and Mr. Nason, who closed on the house and moved in.

   
   

7. Shortly after closing, during the course of some plumbing repairs, the couple discovered the frame construction.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 455.225 and 120.57(1), F.S.

   
   

9. In license discipline cases such as this the agency must prove the allegations of its complaint by evidence that is clear and convincing. Ferris

   v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

10. Section 475.25(1), F.S. provides, in pertinent part:

    1. Discipline -

       
       

       1. The commission may deny an application for licensure, certification, registration, or permit, or renewal thereof; may place a licensee, certified appraiser, registrant, or

    permittee on probation; may suspend a license, certification, registration, or permit for a period not exceeding 10 years; may revoke a license certification, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, certified appraiser, registrant,

    permittee, or applicant:

    * * *

    (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.

    * * *

    
    

11. Respondent was aware that the buyers were relying on his assurances that the house was block construction. At the last minute, when he became aware of his error he should have informed them of the frame construction. He has

    admitted his wrongdoing and, according to his licensure file, this is his only violation of Chapter 475, F.S.

    
    

12. The Florida Real Estate Commission has promulgated guidelines for the imposition of discipline when violations are found. Rule 21 V-24.001(2)(a),

F.A.C. provides that for violations of Section 475.25(1)(b), F.S. the range of penalty is a minimum of a reprimand ". . . and/or a fine up to $1,000.00 per count . . . .", with a maximum of up to five years suspension or revocation. In addition to these penalties the Commission may impose a period of probation under specified conditions.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED: that the Florida Real Estate Commission enter its Final Order finding that Paul Lee Kramer violated Section 475.25(1), F.S., imposing a reprimand, a fine of $1,000.00, and probation for one year under such conditions as the Commission may specify.

DONE and ENTERED this 31st day of October, 1991, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1991.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Professional

Regulation

400 W. Robinson Street

P.O. Box 1900 Orlando, FL 32802

Paul Lee Kramer, pro se 1042 Okopesa Avenue

Orlando, FL 32807

Darlene F. Keller, Division Director Division of Real Estate

400 W. Robinson Street

1. Box 1900

   Orlando, FL 32802-1900

   Jack McRay, General Counsel Department of Professional

   Regulation

   1940 N. Monroe Street Tallahassee, FL 32399-0792

   
   

   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 10 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.

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

   FLORIDA REAL ESTATE COMMISSION

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE,

   
   

   Petitioner

   
   

   vs. CASE NO. 9180720

   DOAH CASE NO. 91-4555

   PAUL LEE KRAMER

   
   

   Respondent

   /

   
   

   FINAL ORDER

   
   

   On January 21, 1992, the Florida Real Estate Commission heard this case to issue a Final Order.

   
   

   Hearing Officer Mary Clark of the Division of Administrative Hearings presided over a formal hearing on October 16, 1991. On October 31, 1991, she issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact, Conclusions of Law and Recommendation. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

   
   

   The Florida Real Estate Commission therefore ORDERS that Respondent Paul Lee Kramer be reprimanded and pay an administrative fine of $1000.

   The Commission further ORDERS that Paul Lee Kramer be placed on probation for a period of one year, subject to the following terms and conditions:

   
   

   1. The licensee shall notify the Division of Real Estate of any changes in address or employment.

      
      

   2. The licensee shall not violate any provisions of Chapter 475, Florida Statutes, or Rules adopted by the Commission.

      
      

   3. The licensee shall not be convicted or found guilty of a crime in any jurisdiction.

      
      

   4. The licensee shall enroll in and satisfactorily complete a 45-hour post-licensure course for salespersons.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s.120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 21st day of January 1992 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Paul Lee Kramer, 1042 Okopesa Avenue, Orlando, FL 32807; to Hearing Officer Mary Clark, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and to Steven Johnson, Esq., DPR, P.O. Box 1900, Orlando, FL 32802, this 14th day of February 1992.

Director

Docket for Case No: 91-004555

Orders for Case No: 91-004555