STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-5597

)

RUTH MOOREFIELD BARTLETT, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 2, 1998, a formal administrative hearing was held in Largo, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Christine M. Ryall, Esquire

Division of Real Estate Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900

For Respondent: James H. Gillis, Esquire

1415 East Robinson Street, Suite B Orlando, Florida 32801-2169

STATEMENT OF THE ISSUE

Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 21, 1998, the Department of Business and Professional Regulation, Division of Real Estate (Petitioner)

filed an Administrative Complaint against the Respondent, Ruth Moorefield Bartlett. The complaint alleges that the Respondent created and presented fictitious purchase offers to the owners of certain property for which she was the listing agent.

The Respondent disputed the allegations and requested a formal administrative hearing. The Petitioner forwarded the request to the Division of Administrative Hearings which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of five witnesses and had exhibits numbered 1-2 and 4-7 admitted into evidence. The Respondent testified on her own behalf, presented the testimony of two witnesses and had exhibits numbered 1-2 admitted into evidence. A prehearing stipulation filed by the parties was admitted as an Administrative Law Judge's exhibit.

A transcript of the hearing was filed. Both parties filed proposed recommended orders.

The Administrative Complaint alleges that the property involved in this matter was owned by "Steven Perez." Without objection, at hearing the complaint was amended to correct the owner's identification as set forth in this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency responsible for regulation of licensed real estate salespersons in the State of Florida.

2. At all times material to this case, the Respondent was a licensed real estate salesperson, holding Florida license no. 0566297. Most recently, the Respondent's license identifies her as a salesperson with Robert E. Bartlett at Bartlett Realty, 3500 First Avenue North, St. Petersburg, Florida 33701.

3. From July 11, 1995, to September 27, 1996, the Respondent was employed by Century 21, Grant Realty of Florida, 6450 Seminole Boulevard, Largo, Florida 34642.

4. Steve and Janice Perry (the Perrys) owned a house located at 12907 Hickorywood Lane, Largo, Florida.

5. On or about June 5, 1996, the Perrys listed the house for sale through execution of an Exclusive Right to Sell Listing Agreement with the Respondent and Grant Realty.

6. The Perrys were very anxious to sell the house and contacted the Respondent almost daily to determine whether there was activity on the listing.

7. In time, the Respondent presented to the Perrys a written and signed offer (the "first offer") to purchase the property. The Perrys declined the offer, but proposed a counteroffer, and executed the document.

8. The Respondent did not provide a copy of the offer or counteroffer to the Perrys.

9. The Respondent eventually told the Perrys that the purchasers had been unable to obtain financing.

10. The Respondent has no documentation of the first offer. The Respondent is unable to recall the names of the prospective buyers or of any agent representing the buyers.

11. The files of Grant Realty contain no records related to the first offer.

12. At some time after the first offer had failed to close, the Respondent presented a second written and signed offer to the Perrys.

13. The Respondent indicated to the Perrys that she knew the second buyer.

14. On the Respondent's advice, Mr. Perry amended the second offer, initialed the changes, and signed the document. Mr. Perry told the Respondent that if the amendments were not acceptable to the buyer, he would accept the original offer.

15. The Respondent did not provide a copy of the second offer to the Perrys.

16. The Respondent has no documentation of the second offer.

17. The files of Grant Realty contain no records related to the second offer.

18. The day following execution of the second offer, the Perrys inquired about the status of the matter. The Respondent told Mr. Perry that the buyer was part of an "investment group" and that the group was being contacted about the Perrys' amendments.

19. The Perrys continued to contact the Respondent about the status of the second offer, but she offered little new information.

20. The Respondent eventually told the Perrys that the prospective buyer thought she was being "too pushy" and was refusing to discuss the matter with her. The Respondent told the Perrys that the buyer's agent would handle the sale, but stated that it would be improper for the Perrys to contact the buyer's agent and declined to identify the agent.

21. The Perrys continued to contact the Respondent and request information. She eventually indicated that the buyer's agent was "Dave," another Century 21 agent, and suggested it could be Dave Sweet, another Grant Realty agent.

22. The Perrys contacted Dave Sweet. Mr. Sweet had no knowledge of the second offer and was unable to provide any information.

23. At this point, the Perrys contacted the Respondent's employer and spoke with Karen Selby, a broker at Grant Realty.

24. Ms. Selby was unaware of any offer on the property. Conrad Grant, owner/broker of the agency, was also unaware of any pending offer on the Perry property.

25. Ms. Selby took possession of the Perry listing file. There was no documentation in the file suggesting that any offers were received.

26. Ms. Selby questioned the Respondent about the second offer. The Respondent stated that the offer came from "John," a man who had come through an open house a few weeks earlier, that she'd prepared a written offer according to his direction but that he had not signed it, that Mr. Perry counteroffered, and that the counteroffer had been declined. The Respondent further told Ms. Selby that the buyer had been working with "Dave," an agent in another Century 21 agency.

27. Ms. Selby asked for the full names of the buyer and the agent, but the Respondent was unable to provide them. Ms. Selby asked the Respondent to consult her notes or the open house sign- in sheet for the information. The Respondent was unable to provide any additional information related to the offer.

28. Ms. Selby contacted the agency's attorney and arranged a meeting with the Respondent. During this meeting, the Respondent was again asked for, but was unable to provide, additional information related to the alleged offers.

29. Subsequent to the meeting, the Respondent provided a name and telephone facsimile number for the alleged buyer. Using the phone number, Ms. Selby attempted to contact the buyer, identified as "Brian John Edridge." Ms. Selby received a response from a business which stated that no one by that name was involved in the business.

30. Ms. Selby discussed the matter with Dave Sweet. Mr. Sweet told Ms. Selby he was not involved in the purported offer and had no information about the situation.

31. The Respondent's employment at Grant Realty was terminated.

32. There is no credible evidence that the "offers" presented by the Respondent to the Perrys were real. There is no credible evidence that the prospective "buyers" identified to the Perrys by the Respondent existed.

33. There is no credible evidence that anyone identified as "Brian John Edridge," or any variation of the name, was involved in any prospective purchase of the Perry property.

34. There is no credible evidence that an agent identified as "Dave" was involved in any prospective purchase of the Perry property.

35. At the hearing, the Respondent testified in her own behalf. Her testimony lacks credibility and is rejected.

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.56(2), Florida Statutes.

37. The Department of Business and Professional Regulation, Division of Real Estate, is responsible for licensure and regulation of real estate salespersons in the State of Florida. Chapter 475, Florida Statutes.

38. The Petitioner has the burden of proving the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met.

39. Section 475.25, Florida Statutes, provides as follows: Discipline.--

    1. The commission may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, 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, 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 her or 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.

       
       

40. A real estate salesperson serves as fiduciary to her client and has a duty to be honest and trustworthy. Section 470.01(f), Florida Statutes, provides as follows:

    "Fiduciary" means a broker in a relationship of trust and confidence between that broker as agent and the seller or buyer as principal. The duties of the broker as a fiduciary are loyalty, confidentiality, obedience, full disclosure, and accounting and the duty to use skill, care, and diligence.

41. In this case, the Respondent fabricated two "offers" to purchase property and presented the fabrications to the sellers. There is no evidence that any actual purchasers existed.

42. The fabrication of offers is a clear violation of fiduciary duty and constitutes fraud, misrepresentation and a breach of trust.

43. The Respondent asserts that any documentation of the offers was left with the Grant Agency files and is unavailable to her. The greater weight of the evidence establishes that there was no documentation in the agency files because neither the prospective purchasers nor their offers ever existed.

44. The Respondent asserts that the Petitioner should have investigated whether anyone named "Brian John Edridge" existed and if so, whether he was involved in the matter. The relevant allegation set forth in the complaint asserts the non-existence of the identified "purchaser." It is reasonable to expect that

    the Respondent should have located the alleged purchaser and secured his supporting testimony in order to defend against the allegation. In fact, there is no credible evidence that any purchaser existed.

45. Rule 61J2-24.001, Florida Administrative Code, provides that in the case of fraud, misrepresentation and dishonest dealing, the usual action of the Florida Real Estate Commission is to impose a penalty of revocation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Business and Professional Regulation, Division of Real Estate, enter a Final Order revoking the Respondent's real estate license.

DONE AND ENTERED this 1st day of June, 1998, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1998.

COPIES FURNISHED:

James H. Gillis, Esquire

1415 East Robinson Street, Suite B Orlando, Florida 32801-2169

Christine M. Ryall, Esquire Division of Real Estate Department of Business and

Professional Regulation 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

Henry M. Solares, Division Director Division of Real Estate

Department of Business and Professional Regulation

Post Office Box 1900 Orlando, Florida 32802-1900

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-005597

Orders for Case No: 97-005597