Upon due notice, this cause came on for formal hearing on March 14, 1997, in Ocala, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Geoffrey T. Kirk, Senior Attorney
400 W. Robinson Street Orlando, Florida 32802
The issue herein is whether or not either Respondent is guilty as charged and if so what discipline should be imposed.
On September 29, 1995, Petitioner filed a two count administrative complaint against Respondents. Respondents disputed the charges and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was not referred to the Division of Administrative Hearings until on or about October 9, 1996. Formal hearing was ultimately held on March 14, 1997.
Petitioner, by opening argument, stated that this is a case only of "negligent representation," and that it sought only fine, education, and reprimand due to the totality of circumstances of the offense charged. Petitioner presented the oral testimony of Russell Lambert, Tina Roberts, and John Kopke. Petitioner's Exhibits 1-7 were admitted in evidence.
Respondents represented themselves. They presented the oral testimony of Michael May and John Svilokos. Respondents' Exhibits 1-5 and 7-13 were admitted in evidence. Other numbered exhibits were not admitted into evidence.
No transcript was filed, however all timely filed Proposed Recommended Orders have been considered in the preparation of this Recommended Order.
Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165 and Chapters 120,
455 and 475, Florida Statutes and the rules promulgated pursuant thereto.
Respondents are husband and wife and work as a real estate “sales team.”
Respondent Joyce Svilokos is, and at all times material hereto was, a licensed real estate salesperson, issued license number 0412975 in accordance with Chapter 475 Florida Statutes. At all times material, she was licensed as a real estate sales person c/o Fox Fire Realty, Inc., 615 East Silver Springs Boulevard, Ocala, Florida 34470-5823.
Respondent John Svilokos is, and at all times material hereto was, a licensed Florida real estate salesperson, issued license number 0391292 in accordance with Chapter 475 Florida Statutes. At all times material, he was licensed as a real estate sales person c/o Fox Fire Realty, Inc., 615 East Silver Springs Boulevard, Ocala, Florida 34470-5823.
On or about October 16, 1993, Respondents, licensed as real estate sales persons and employed by Fox Fire Realty, Inc., solicited and obtained an exclusive “right to sell” marketing agreement from Gerald A. and Leonie A. Leclerc (owners).
At that time, Mr. Leclerc was dying of cancer. He insisted to the Respondents that his property was zoned "agricultural".
Joyce Svilokos listed the Leclerc property with her broker, who transmitted the information unchanged and unverified into the multiple listing service, indicating the Leclerc property was zoned agricultural. The multiple listing service carried the clear warning, "accuracy of information not warranted."
The Leclerc property was, in fact, not zoned agricultural (A-1).
The Respondents represented throughout the discovery process that before she provided the listing information to her broker, Joyce Svilokos telephoned the Zoning Department of Marion County and was told that the Leclerc property was listed as "agricultural". However, Ms. Svilokos was not called as a witness. No one from the Zoning Department confirmed Ms. Svilokos’ conversation as represented by the Respondents’ pleadings. Based on the evidence as a whole, it is most probable that Joyce Svilokos confused the Leclerc property’s eligibility for possible land use permits and zoning changes with the existing zoning designation for the subject property. According to witnesses May and Roberts from the Marion County Zoning Department, the frequent confusion arising from telephone conversations is one reason that the Zoning Department does not
stand behind any oral information attributed to it and relies upon a form request to be answered, confirmed and returned to the requester after the form has been acted upon by both the Marion County Zoning and Planning Departments.
There is no written county request form and answer regarding the subject property.
The subject property has been zoned “residential, conventional and mobile homes” (R4) since October 8, 1992.
During the entire intervening period of time, information concerning zoning could be accessed through the Marion County Tax Appraiser's Office by computer and/or microfiche. If Respondents or their broker had accessed the information from the Marion County Tax Appraiser's Office by the computer in the broker's office, it would, in fact, have accurately revealed the R-4 designation for the subject property. Petitioner agency asserted that Respondents should not have omitted this means of accessing the zoning information. However, any availability of zoning information from the Marion County Tax Appraiser's Office is irrelevant because, according to all witnesses, the Marion County Tax Appraiser's computer program is notoriously unreliable; real estate persons have been warned not to rely upon it; and, in this instance, no one did rely upon it.
On or about March 18, 1994, a contract for sale/purchase was offered by John Kopke to purchase the Leclerc property. This contract was not negotiated by Respondents. It
was negotiated between Mr. Shook, the broker representing Mr. Kopke as buyer, and Mr. Bishop, an attorney representing Mrs. Leclerc, who was by then widowed. The contract provided that the property would be used for a residence and agricultural zoning (A1) purposes.
Prior to final settlement/closing, Respondents oversaw compliance with every item previously negotiated by others and complied with all the buyer's requests, but no one advised them that the buyer was purchasing the property in reliance on the multiple listing service's statement that it was zoned agricultural. Respondents were not asked to verify the zoning information.
Apparently, neither Mr. Kopke, Mr. Bishop, nor Mr. Shook verified the zoning information in the multiple listing service for accuracy. Likewise, it would appear that Mr. Boone, Respondents’ broker, never verified this information.
Respondent John Svilokos attended the closing which was handled by a title company representative. John Svilokos did not review the contract, but received a copy of the closing statement and a copy of the commission check made out to Fox Fire Realty.
The transaction closed with Mr. Kopke believing he could occupy the purchased property with chickens, goats, cows, and a horse.
The property was, in fact, zoned R-4, instead of A-1. An R-4 designation permits residences with only household pets.
No farm animals are permitted.
Mr. Kopke already owned a horse, which he moved onto the property immediately. He thereafter purchased and stocked the place with some chickens. He was planning to purchase goats and cows.
The Marion County Zoning Board cited Mr. Kopke for a zoning violation as a result of the horse and chickens being located on the R-4 property. The Board forced Mr. Kopke to remove his animals. Mr. Kopke gave away the chickens and boarded his horse until he could get the property rezoned. Although he estimated that he had lost $1,000 boarding the horse, his “guesstimate” was not supported by any other evidence.
Mr. Kopke complained to Respondents and their broker, Mr. Boone. On March 26, 1996, Mr. Boone remitted money provided by Respondents to Mr. Kopke. Mr. Kopke used Respondents’ money to get his property rezoned.
Upon receipt of Respondents’ money, Mr. Kopke agreed to withdraw his complaint to the Petitioner Agency against Mr. Boone.
On June 18, 1996, the Marion County Zoning Board rezoned the property for A-1.
Mr. Kopke thereafter complained to Petitioner agency about the Respondents' involvement herein. In his testimony, he related that he did not feel the Respondents had committed any fraud against him because they had never even spoken to him, but
he felt they had made a negligent misrepresentation in the multiple listing service.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
Each of the Respondents herein is charged in a separate count of the Administrative Complaint with 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 violation of Section 475.25(1)(b), Florida Statutes.
Although Petitioner asserts that the evidence is clear that the Respondents knew or should have known that the agricultural zoning was a material fact to the buyers and did not honestly disclose it, thereby committing a breach of trust, the circumstances of this case do not support such a conclusion. Ms. Svilokos may have been naïve or under-educated in the field of real estate in her present locale, but neither Respondent ever had any intent to take advantage of anyone.
The fact that each principal was individually represented by professional persons other than these Respondents in an arm’s length transaction precludes a conclusion of guilt on the charge of "breach of trust."
There was clearly no intent on behalf of Respondents to misrepresent, conceal, falsely promise, cause a sale or receive a commission by false pretenses, or deal dishonestly by trick, scheme or device or by breach of trust.
Moreover, the Respondents financed from their own pocket (not their broker's pocket) the amount necessary to rezone the property in question. Although the statute precludes such a gesture being used to utterly avoid disciplinary action, that “making good” the situation evidenced these Respondents' honesty of spirit in this case because it was not demonstrated that Respondents were legally bound to provide such a “cure” where the multiple listing contained the exculpatory statement, "accuracy of information not warranted."
Petitioner rightly concedes that the cases which discuss the fraud provision of Section 475.25(1)(b) Florida Statutes all require intent as an element and are inapposite to the "culpable negligence" provision of this section because intent is not an element of negligence jurisprudence.
"Culpable negligence" has been defined as: Failure to exercise that degree of care rendered appropriate by the particular circumstances, and which a man of ordinary prudence in the same situation and with equal experience would not have omitted.
See, Black's law Dictionary (5th Edition), (1979) and Zuckerman v. Alter, 615 So.2d 661 (Fla. 1993). That definition does not precisely apply here.
There is not clear and convincing proof of "culpable negligence” herein, since not even a reasonable omission has been proven.
It is apparent that Respondents need some cautionary instruction with regard to relying on oral representations concerning zoning matters and probably require some additional general real estate education so as to protect themselves in the future. However, there having been no clear and convincing evidence of any of the specific charges brought against them (ie. fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in any business transaction), the undersigned is effectively foreclosed from recommending even education or reprimand as discipline. See, Ferris v. Turlington,
510 So.2d 292 (Fla. 1987); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977)
Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1997.
Joyce Svilokos & John Svilokos 615 East Silver Springs Boulevard Ocala, Florida 34470-5823
Geoffrey T. Kirk, Senior Attorney Department of Business and
Lynda L. Goodgame General Counsel
Henry M. Solares Division Director Post Office Box 1900
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
