STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 96-4739

) HELEN B. HORTON and HELEN B. ) HORTON REALTY, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 10, 1997, at Port St. Lucie, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondents: Helen B. Horton

Helen B. Horton Realty, Inc. 2866 Southeast Ginza Street Port St. Lucie, Florida 34952

STATEMENT OF THE ISSUE

The issue for determination is whether Respondents committed the offenses set forth in the administrative complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

On March 21, 1996, the Department of Business and Professional Regulation, Division of Real Estate (Petitioner) filed an Administrative Complaint against Helen B. Horton (Respondent Horton) and Helen B. Horton Realty, Inc. (Respondent Horton Realty),1 charging them with violating Section 475.25(1)(b), Florida Statutes, by being guilty of misrepresentation, concealment, false promises, false pretense, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction. By letter dated July 23, 1996, Respondent Horton, on behalf of herself and Respondent Horton Realty, disputed the allegations of fact and requested a formal hearing. On October 7, 1996, this matter was referred to the Division of Administrative Hearing.

At hearing, Petitioner was allowed to amend paragraphs 5 and

6 of the Administrative Complaint to reflect that Respondent Horton and Eric Carlton Brent were "operating as brokers/salespersons of Respondent Horton Realty." Also, at hearing, Petitioner presented the testimony of two witnesses2 and entered six exhibits into evidence. Respondent Horton testified in her own behalf and entered no exhibits into evidence.

A transcript of the hearing was not ordered. At the request of the parties, the time for filing post-hearing submissions was

set for more than ten days following the hearing. The parties did not file post-hearing submissions within the requested time period and have not to date.

FINDINGS OF FACT

1. At all times material hereto, Helen B. Horton (Respondent Horton) was licensed in the State of Florida as a real estate broker, having been issued license number 0260577.

2. At all times material hereto, Helen B. Horton Realty, Inc. (Respondent Horton Realty), was a corporation licensed in the State of Florida as a real estate broker, having been issued license number 0267231.

3. At all times material hereto, Eric Carlton Brent was licensed in the State of Florida as a real estate broker. Mr. Brent is the son of Respondent Horton.

4. On December 20, 1993, Respondent Horton ceased being the President of Respondent Horton Realty. At that time, Mr. Brent became the President, in addition to being the Secretary and Treasurer, of Respondent Horton Realty.

5. On April 12, 1994, Mr. Brent and Respondent Horton, operating as brokers/salespersons for Respondent Horton Realty, negotiated a contract for the sale of residential property between John M. and Suzanne B. Patten (sellers) and Joseph M. Eldridge (buyer). The property was listed by Reserve Realty and Sales, Inc. (Reserve Realty). Respondents and Mr. Brent were representing the buyer.

6. A provision of the contract provided for the buyer to pay a deposit of $1,000 to be held in escrow by Respondent Horton Realty. Also, the contract provided, among other things, that the closing was to take place on or before April 15, 1994.

7. The buyer refused to pay the deposit without a home inspection. A satisfactory home inspection became a contingency to the contract and agreement.

8. The home inspection was ordered and completed. The inspection contained several recommendations. Respondents notified the sellers and Reserve Realty of the recommendations.

9. The buyer continued to refuse to pay the $1,000 deposit.

   
   

10. Respondent Horton informed all parties, including the sellers and Reserve Realty, that the buyer had not paid and would not pay the deposit. All parties were aware that the buyer had not paid the $1,000 deposit.

11. On the closing date of April 15, 1994, the deposit remained unpaid. As a result, Respondent Horton considered the transaction terminated.

12. Mr. Brent made several unsuccessful requests to the buyer to pay the $1,000 deposit. At the end of April 1994,

    Mr. Brent was convinced that the buyer had no intentions of paying the deposit. Mr. Brent notified the buyer that neither he nor the Respondents would continue to represent him in the transaction.

13. The buyer began to represent himself in the transaction. He dealt directly with Reserve Realty.

14. In May 1994, Mr. Brent notified all parties, including the sellers and Reserve Realty, in writing that the transaction would not be completed due to the buyer's failure to pay the

    $1,000 deposit. At that time, all parties were aware that the buyer still had not paid the deposit and that the Respondents and Mr. Brent no longer represented the buyer in the transaction.

15. In June 1994, as a result of a personal tragedy,

    
    

    Mr. Brent was no longer able to continue to operate Respondent Horton Realty. Finally, on or about July 15, 1994, Mr. Brent ceased operating and closed Respondent Horton Realty.

16. At no time did Respondents or Mr. Brent receive the

    
    

    $1,000 deposit from the buyer.

    
    

17. At no time did Respondent Horton Realty's escrow account contain a deposit from the buyer.

18. At no time did Respondents or Mr. Brent receive a demand from the sellers or Reserve Realty, or any of their agents, for the deposit.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Section 120.569, Florida Statutes, and Subsection 120.57(1), Florida Statutes.

20. License revocation proceedings are penal in nature. The burden of proof is on Petitioner to establish the truthfulness of the allegations in the Administrative Complaint by clear and convincing evidence. 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).

21. Section 475.25, Florida Statutes, provides in pertinent part:

    1. The commission [Florida Real Estate Commission] may . . . place a licensee . . . on probation; may suspend a license . . . for a period not exceeding 10 years; may revoke a license . . .; 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 . . .

       * * *

       
       

       (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. . . 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.

22. Petitioner failed to demonstrate that the Respondents violated Subsection 475.25(1)(b). All parties to the transaction were aware that the buyer did not pay the deposit and that the

Respondents ceased representing the buyer. Furthermore, the Respondents never received a demand from the sellers, or their agents, for the deposit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order DISMISSING the Administrative Complaint against Helen B. Horton and Helen B. Horton Realty, Inc.

DONE AND ENTERED this 2nd day of July, 1997, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1997.

ENDNOTES

1/ Originally, the Administrative Complaint included Eric Carlton Brent as a Respondent. Only Helen B. Horton and Helen B. Horton Realty, Inc., were prosecuted by Petitioner in this formal hearing.

2/ Neither the sellers nor any of their agents testified.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Business and

Professional Regulation

400 West Robinson Street N-308 Orlando, Florida 32802-1900

Helen B. Horton

Helen B. Horton Realty, Inc. 2866 Southeast Ginza Street Port St. Lucie, Florida 34952

Henry M. Solares, Division Director Department of Business and

Professional Regulation

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

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 96-004739

Orders for Case No: 96-004739