STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 92-4917

)

DILSA M. FISH, )

)

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 May 27, 1993, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Senior Attorney

Department of Professional Regulation

401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128

For Respondent: No appearance

STATEMENT OF THE ISSUES

An administrative complaint dated March 18, 1992 alleges that Respondent violated Section 475.25(1)(b), F.S., by fraud, misrepresentation, false promises, concealment, dishonest dealing and breach of trust in a business transaction with George and Mable Bush. The issue in this proceeding is whether that violation occurred and if so, which discipline is appropriate.

PRELIMINARY STATEMENT

By a Notice of Hearing dated March 29, 1993, the hearing was scheduled to begin at 9:00 a.m. At that time, however, neither the Respondent nor anyone on her behalf had appeared for the hearing. The Hearing Officer delayed the start of the hearing to await Respondent's possible late arrival. During the wait, counsel for Petitioner, using a telephone in the hearing room, attempted to reach Respondent at her local telephone number, but no one answered. The Hearing Officer noted that the Notice of Hearing had been mailed to Respondent at two different addresses, and that neither notice had been returned by the post office. Neither the Hearing Officer nor the Petitioner had received any request for continuance or other recent communication from the Respondent. At 9:20 a.m. the hearing proceeded despite Respondent's failure too appear.

Petitioner presented the testimony of three witnesses:

George Bush, Mable Bush and John Harris. Petitioner also presented six exhibits, all of which were received in evidence. The hearing concluded at 10:25 a.m., without the Respondent having appeared.

The Petitioner ordered a transcript of the hearing, and it was filed with the Division of Administrative Hearings on June 24, 1993. At the hearing, the Petitioner requested and was granted ten days from the transcript filing date within which to submit a proposed recommended order. That proposed order is substantially adopted herein.

FINDINGS OF FACT

1. Respondent, Dilsa M. Fish, was at all times material hereto a licensed real estate salesperson in the State of Florida, having been issued license number 0356415 in accordance with Chapter 475, Florida Statutes. The last license issued was as a salesperson, c/o Josef Heinrich Augustin, 25 NE 22nd Street, Miami, Florida 33127.

   
   

2. At all times material hereto, Respondent was an officer and was the sole owner of I.E.P. Construction Company, Inc. (hereinafter, "IEP").

   
   

3. George Bush and his wife Mable Bush met Respondent in October 1989 at Respondent's office in Lehigh Acres, Florida.

   
   

4. The Bushes were interested in buying property.

   
   

5. Neither of the Bushes had previously bought real estate, and neither of them had completed high school.

   
   

6. The Respondent had a map. Using the map, she gave the Bushes directions, and the Bushes, following those directions, found and looked at some lots in Lehigh Acres.

   
   

7. The Bushes found a lot they liked on the corner of East 12th and Joel Boulevard. They went back to Respondent, and she marked their selection on her map. The Bushes gave her a check for $50 for a deposit on the lot. The idea was that IEP was going to build a house for the Bushes on the lot.

   
   

8. The Bushes did not sign a contract. Respondent told them that when they returned home to New Jersey, they were to send an additional $2,950, and then she would send them a deed for the lot.

   
   

9. The Bushes returned to their home in New Jersey and sent Respondent a check for $2,950 shortly thereafter.

   
   

10. In March 1990 the Bushes returned to Lehigh Acres. At that time, the Bushes signed a contract with IEP. The contract was prepared by Respondent and was entitled "Contract of Purchase and Sale Property With Improvements To Be Constructed," and was dated March 14, 1990.

    
    

11. The Bushes made selections concerning the decor of their house, and they gave Respondent a cashier's check for an additional $15,000.

    
    

12. The lot specified in the contract was not the same lot as the lot which the Bushes had selected in October 1989. The lot specified in the contract was on East 8th and Hamilton.

13. Respondent told the Bushes she changed lots in order to save money on fill dirt, and the Bushes agreed to the change. Later the Bushes were apprised that Respondent changed lots because the lot originally chosen by the Bushes was commercial property.

    
    

14. During the Bushes' March 1990 visit to Lehigh Acres, the Bushes applied for financing at BancFlorida, a local bank selected by the Respondent. The Bushes' application was approved August 30, 1990.

    
    

15. Paragraph 3 of the Bushes' contract with IEP, Petitioner's Exhibit 1, provided as follows:

    
    

    3. TIME: Construction is to be completed within 120 days starting from the date of financial approval unless delayed by strike, act of God, material or labor shortages, or other causes beyond control of contractor.

    
    

16. Around August 1990, the Respondent called the Bushes and told them that she was changing the lot again, this time to one on Lake and 6th Street, because it would be closer to where Respondent lived. The Bushes agreed to the change in order to get started with construction and because it was closer to Lehigh. The Respondent sent them a new contract page one to sign and return, which they did.

    
    

17. In October 1990 George Bush and a co-worker of his, John Volk, came to Florida and stayed at Lehigh Resort Center, where Mr. Bush had a timeshare. Mable Bush did not come because she was in the hospital. Mr. Bush came because he wanted to see why construction of the Bushes' house was being delayed.

    
    

18. Mr. Bush stayed for approximately one week. During that time dirt was placed on the lot on Lake and 6th Street, but there was no other visible construction progress.

    
    

19. After Mr. Bush's return to New Jersey, the Bushes received two letters from the Respondent. The first, dated October 12, 1990, stated that "The construction of your home is under way." In the letter the Respondent promised to provide the Bushes with accommodations and storage pending completion of the Bushes' house, at no charge for the initial period November 15-December 15, 1990.

    
    

20. The second letter, dated October 25, 1990, advised the Bushes that there was ". . . a title problem on the property." The letter also advised that "We can not have the house ready by the deadline." and that "They (the title company) are not telling me how long it will take to clear title. Therefore, my timing and schedule will be totally off."

    
    

21. After receiving the October 26, 1990 letter, the Bushes discussed the possibility of cancelling the contract with IEP, and Mr. Bush called the Respondent and asked her how much it would cost ". . . to just forget the whole thing." The Respondent told him it would cost about $1,500, but then she persuaded the Bushes not to cancel by offering to change lots again, this time to a lot on East 5th and Greenwood. The Bushes agreed. They felt that since the Respondent had their money they didn't have much choice.

22. The Bushes moved to Florida on November 13, 1990, and initially they stayed in a house in Lehigh Acres owned by the Respondent and which the Respondent also used as an office. It was the same office where the Respondents had originally met the Respondent in October of 1989.

    
    

23. The Respondent promised to clear off the lot on East 5th and Greenwood, but she never did, and a "For Sale" sign continued to be displayed on the lot.

    
    

24. After moving to Florida, the Bushes received correspondence from BancFlorida indicating that the bank was still under the impression that the Bushes were buying the lot on East 8th and Hamilton. Mable Bush called the bank and was told there would be a fee of $250 to change lots. The Bushes asked Respondent to pay the fee and she refused.

    
    

25. After this incident the Bushes decided that they did not want to continue doing business with the Respondent.

    
    

26. On December 14, 1990, the Bushes moved out of the Respondent's house/office, and on December 15, 1990 they moved into a nearby house in Lehigh Acres which they bought.

    
    

27. The Bushes requested that the Respondent return the $18,000 they paid her, but, through and including the date of the hearing, she failed or refused to return any portion of it.

    
    

28. During the course of the transaction between the Bushes and the Respondent, the Bushes did not have an attorney representing them because the Respondent told them they didn't need an attorney and because the Bushes trusted the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.57(1) and 455.225(5), F.S.

    
    

30. In the absence of any proof by Respondent, Petitioner has met its prima facie burden of proving the alleged violation by clear and convincing evidence.

    
    

31. The October 25, 1990 letter evidences an anticipatory breach of the August 1990 contract between the Bushes and IEP. While not repudiating the contract, the letter clearly acknowledges that due to the referenced title problems, IEP would be unable to render timely performance. Theoretically, the language of paragraph 3 of the contract imposes no time limit on IEP's performance if delayed for ". . . causes beyond control of contractor." But it would be unreasonable and inequitable to interpret that paragraph to mean that the Bushes were obligated to wait an unlimited amount of time while IEP cleared title. And if a contract requires interpretation, it is ordinarily interpreted against its preparer, in this case, the Respondent and IEP. Evidently the Respondent recognized that it would be unreasonable to make the Bushes wait an indefinite amount of time: the October 25, 1990 letter invited the Bushes to accept delayed performance, but when Mr. Bush called the Respondent she made no effort to insist on the contract, offering instead to change to a different lot.

    
    

32. Since IEP breached the contract but did not repudiate it, the Bushes had the right to elect to continue or discontinue performance of the contract.

    See, 11 Fla. Jur. 2d, Contracts, Section 225. They elected to discontinue the performance of the August 1990 contract by orally accepting the Respondent's proposal for a different lot. Later, after further frustrations in their dealings with the Respondent, the Bushes revoked their acceptance, and they were legally entitled to do so. Under the statute of frauds, Section 725.01, Florida Statutes, the Respondent's proposal, even though it was orally accepted by the Bushes, never became legally binding on the Bushes because it was not in writing and signed by them. Accordingly, the Bushes acted within their rights when they decided to discontinue transacting business with the Respondent and IEP.

    
    

33. In connection with the business transaction between IEP and the Bushes, the Respondent:

    
    

    1. Misrepresented the commercial property on East 12th and Joel Boulevard as being available to the Bushes for construction

       of a house.

    2. Concealed that misrepresentation by changing lots and by misrepresenting and con- cealing the reason for the change.

    3. Misrepresented and concealed the reason for changing from the East 8th and Hamilton lot to the lot on Lake and 6th Street.

    4. Refused to offer to pay the $250 bank fee associated with the change in the property being purchased, even though the change was necessitated when IEP failed to acquire the

       lot it had contractually bound itself to sell to the Bushes.

    5. Failed or refused to refund any portion of the Bushes' $18,000, even though:

       1. IEP breached the August 1990 contract for the lot on Lake and 6th Street;

       2. No written contract existed on any other lot;

       3. The Bushes validly revoked their oral acceptance of the Respondent's pro- posal to sell them the lot on East 5th and Greenwood;

       4. Performance by IEP of any of its contractual obligations to the Bushes was very minimal, at best;

       5. The Bushes received nothing pursuant to any contract with IEP; and

       6. The Bushes requested and demanded a refund.

    6. Induced the unsophisticated Bushes to place their trust in her, then breached that trust through misrepresentation, concealment, and unfulfilled promises.

       
       

34. The Respondent's conduct in connection with the transaction with the Bushes constitutes misrepresentation, concealment, dishonest dealing, culpable negligence, and breach of trust in a business transaction in violation of 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint. This is true even though the Respondent may not have acted in her capacity as licensed real estate salesperson in that transaction. Subsection

    475.25(1)(b), Florida Statutes, has been interpreted, consistent with the plain meaning of its language, to authorize the Florida Real Estate Commission to take disciplinary action against a real estate license for misconduct ". . . in any business transaction . . . " and not just for misconduct in a business transaction in which the licensee acted in his or her capacity as a licensee.

    See, for example, Sellars v. Florida Real Estate Commission, 380 So.2d 1052 (Fla. 1st DCA 1980), and LaRosa v. Department of Professional Regulation, 474 So.2d 322 (Fla. 3rd DCA 1985).

    
    

35. Pursuant to Section 475.25(1), Florida Statutes, and Rule 21V-24.001, Florida Administrative Code, disciplinary action by the Florida Real Estate Commission may, as circumstances warrant, include any one or more of the following penalties: a reprimand; an administrative fine not to exceed $1,000 per violation; probation; suspension of license, registration or permit for a period not to exceed 10 years; or revocation of the license, registration or permit.

    
    

36. Pursuant to Rule 21V-24.001(3)(c), Florida Administrative Code, the maximum penalty for the violation of Section 475.25(1)(b), Florida Statutes, is up to 5 years suspension or revocation.

    
    

37. Pursuant to Rule 21V-24.001(4), Florida Administrative Code, deviation from the prescribed penalty guidelines is permitted if aggravating or mitigating circumstances are demonstrated by clear and convincing evidence. Such aggravating or mitigating circumstances may include, but are not limited to, the following: (a) The severity of the offense; (b) The degree of harm to the consumer or public; (c) The number of counts in the Administrative Complaint;

    (d) The number of times the offenses previously have been committed by the licensee; (e) The disciplinary history of the licensee; (f) The status of the licensee at the time the offense was committed; (g) The degree of financial hardship incurred by a licensee as a result of the imposition of a fine or suspension of the license; and (h) Whether a letter of guidance has been previously issued to the licensee.

    
    

38. In this case clear and convincing evidence showed with respect to item

(b) that the Bushes as consumers or members of the public were harmed by the Respondent's conduct, in that they lost $18,000.

RECOMMENDATION

Based upon the foregoing, it is hereby,

RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding the Respondent Dilsa M. Fish guilty of violating Subsection 475.25(1)(b), Florida Statutes, imposing an administrative fine in the amount of

$1,000 and revoking the Respondent's license.

DONE AND RECOMMENDED this 9th day of August, 1993, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993.

COPIES FURNISHED:

Dilsa M. Fish 612 James Avenue

Lehigh Acres, Florida 33936

Dilsa M. Fish c/o Eric Rivera

7291 N.W. 37th Streeet, Apt. C-6 Hollywood, Florida 33024

Theodore R. Gay, Senior Attorney Department of Professional

Regulation

401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128

Jack McRay, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Darlene F. Keller, Division Director Division of Real Estate

Department of Business and Professional Regulation

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

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: 92-004917

Orders for Case No: 92-004917