STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8255

)

POORNAWATIE TIWARI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on May 12, 1992, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson, Senior Attorney

Department of Professional Regulation Division of Real Estate

P.O. Box 1900

Orlando, Florida 32802 For Respondent: no appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of operating as a broker or salesperson without holding a valid and current license as a broker or salesperson, in violation of Sections 475.25(1)(a) and 475.25(1)(e), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 22, 1991, Petitioner alleged that Respondent solicited and obtained a real

estate contract while she did not have a valid and current license as a broker or salesperson.

By Election of Rights dated December 4, 1991, Respondent requested a formal hearing.

Respondent failed to appear at the time scheduled for the final hearing.

When, after 20 minutes, Respondent still had not appeared, the hearing proceeded. Petitioner moved for entry of a recommended order of dismissal on the grounds of Respondent's nonappearance. The motion was denied.

Petitioner called three witnesses and offered into evidence four exhibits, which were all admitted.

No transcript was ordered. No proposed recommended order was filed.

FINDINGS OF FACT

1. Respondent was licensed as a real estate salesperson in the State of Florida and held license number 0443677. She placed her license with Active One Realty, Inc. in 1990 for two months in the spring and, after a brief interval during which her license was not with Active One, one month in the early summer. Each time, Respondent terminated her license with Active One. On September 4, 1990, Respondent again placed her license with Active One.

   
   

2. Respondent worked as a 100% commission agent. She retained 100% of the commission earned by her broker on sales or purchases on which she participated. In return, Respondent paid Active One $150 monthly and $100 per closed transaction.

   
   

3. In late October, 1990, Respondent informed her broker that she had purchased a daycare center, which was taking a lot of her time. Accordingly, Respondent wanted again to terminate her license with Active One. The broker and Respondent agreed that her last day of work would be November 5, 1990. The broker offered to return a $450 deposit to Respondent, but she asked that the broker retain it until she returned to Active One, as she intended to do.

   
   

4. Respondent terminated her license with Active One effective November 6, 1990. Since that date, Respondent's license has continuously been on current inactive status, meaning that she may not engage in real estate activities for which a license is required.

   
   

5. By letter to Respondent dated November 8, 1990, Active One confirmed the effective date of the termination. The letter contains a copy of a completed form informing Petitioner of the termination of the license.

   
   

6. On November 26, 1990, Respondent prepared a standard contract for sale and purchase in connection with a proposed purchase of real property by her husband. Respondent completed the portions of the contract showing the buyer's name, purchase price, and mortgage information. Respondent delivered the contract, together with a business card showing Respondent as a salesperson with Active One, to another salesperson who was employed by the broker representing the sellers. Respondent also signed the contract as a cooperating broker on behalf of Active One.

   
   

7. Prior to the sellers' execution of the contract, which had already been signed by Respondent's husband, Respondent informed the sellers' agent that certain provisions of the contract needed to be changed. The sellers' salesperson prepared another contract, which Respondent's husband signed December 2, 1990. Over Respondent's objection, the sellers' salesperson insisted that the contract contain an addendum stating that Respondent would be participating in the commission and her spouse was the buyer. Respondent's husband, as buyer, also signed the addendum on December 2.

   
   

8. Respondent failed to inform Active One of the contract, which the sellers signed on December 8, 1990. The closing was set for no later than January 30, 1991.

9. Active One learned of the contract by chance. An employee of the title company writing the title insurance noticed the name of Active One on the contract. He mentioned the fact to his wife, who is a broker with Active One. When the broker called Respondent and asked her why she was writing a contract when she was no longer licensed, Respondent said only that she had not realized that she was not licensed.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

11. The Florida Real Estate Commission is authorized to discipline the licenses of real estate brokers and salespersons for disciplinary violations. Section 475.25.

    
    

12. The Commission may suspend a license for not more than 10 years, revoke a license, impose an administrative fine of not more than $1000 per offense or count, issue a reprimand, or place a licensee on probation for any violation of a provision of Chapter 475, Florida Statutes. Section 475.25(1)(e).

    
    

13. Section 475.42(1)(a) provides: "No person shall operate as a broker or salesperson without being the holder of a valid and current active license therefor."

    
    

14. A "salesperson" is a person who "performs any act specified under the definition of a 'broker,' but who performs such act under the direction, control, or management of another person." Section 475.01(1)(d).

    
    

15. A "broker" is a person who, "for another, and for a compensation or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration therefor, . . . attempts or agrees to . . . negotiate the . . . purchase . . . of . . . any real property . . .." Section 475.01(1)(c).

    
    

16. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

17. Petitioner has proved by the requisite standard

    that Respondent has operated as a broker or salesperson without holding a valid and current active license.

    
    

18. Rule 21V-24.001(3)(u), Florida Administrative Code, provides that the appropriate penalty for a violation of Section 475.42(1)(a) ranges from a minimum of a reprimand and/or fine of $1000 up to a three years' suspension or revocation.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that the Florida Real Estate Commission enter a final order determining that Respondent violated Sections 475.42(1)(a) and, thus, 475.25(1)(e), Florida Statutes, issuing a reprimand, and imposing an administrative fine of $1000.

RECOMMENDED this 17th day of June, 1992, in Tallahassee, Florida.

ROBERT E. MEALE

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 17th day of June, 1992.

COPIES FURNISHED:

Darlene F. Keller Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, FL 32801

Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate

P.O. Box 1900 Orlando, FL 32802

Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Poornawatie Tiwari 9916 N.W. 9th Ct.

Plantation, FL 33322

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.

Docket for Case No: 91-008255

Orders for Case No: 91-008255