STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-2435

)

MICHAEL PAUL VALENTINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Naples, Florida, on July 23, 1998.

APPEARANCES

For Petitioner: Steven D. Fieldman, Chief Attorney

Division of Real Estate Department of Business and

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

For Respondent: Jeanette Martinez

Porter, Wright, Morris & Arthur 4501 Tamiami Trail North, Suite 400

Naples, Florida 34103 STATEMENT OF THE ISSUE

The issue is whether Respondent provided the Florida Real Estate Commission with false information in his application to take the broker's examination, in violation of Sections 475.25(1)(b)and (l), Florida Statutes, or whether he is guilty

of misrepresentation, false promises, or dishonest dealing by trick, scheme or device in any business transaction, in violation of Section 457.25(1)(b), and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 18, 1997, Petitioner alleged that Respondent was a licensed real estate salesperson at all material times. The Administrative Complaint alleges that, on April 15, 1995, Respondent applied to be licensed as a real estate broker. In supplying additional information to show that he had held a salesperson's license for the required period of time, Respondent submitted one form in which he signed the broker's name and another form that bore a date earlier than it was completed and submitted.

The Administrative Complaint alleges that Respondent is thus guilty of misrepresentation, false promises, or dishonest dealing by trick, scheme or device in any business transaction, in violation of Section 475.25(1)(b), Florida Statutes, and making or filing a report or record that he knew was false, in violation of Section 475.25(1)(l), Florida Statutes.

At the hearing, Petitioner called no witnesses and offered into evidence one exhibit. Respondent called two witnesses and offered into evidence nine exhibits. The

parties jointly offered one exhibit. All exhibits were admitted.

The parties did not order a transcript.

FINDINGS OF FACT

1. Respondent became a licensed real estate salesperson on September 27, 1993. On this date, he placed his license with Brokers Realty of Naples, Inc.

2. Respondent has not pursued the real estate profession as his primary business. He has not bought or sold any real estate under his license and has not put any time into it.

3. Respondent's profession is the ministry. He as been a minister for 20 years and has been the senior pastor of Gulf Shore Community Church for five years.

4. Respondent is a member of the Christian Missionary Alliance. In June 1993, Respondent was assigned the responsibility of forming a church in Naples.

5. Respondent's wife was more interested than Respondent in pursuing a real estate career, and Respondent took the course with her more for moral support. While in class, they met a broker with whom they agreed they would place their salesperson's licenses.

6. After receiving their salesperson's licenses, Respondent and his wife placed their licenses under the broker, as they had agreed. However, the broker closed her office after a couple of months.

7. In the meantime, Respondent's wife had met David Bayer of Century 21 Old Naples Realty, Inc. (Century 21). In

November 1993, she decided to place her license with Century

1. Respondent agreed that he would do the same.

   
   

   1. Busy with starting a church, Respondent did not attend to the details of transferring his license. He believed that someone else was doing this for him, but no one did. Respondent's inattention allowed his licensing status to lapse. Unknown to Respondent at the time, his salesperson's license became invalid on November 16, 1993, for lack of an employing broker, according to Petitioner's records. Respondent's license remained invalid until March 31, 1995, when it became inactive, according to Petitioner's records.

   2. Respondent's wife later decided to pursue her broker's license. Again for moral support and to help her with preparing for the examination, Respondent agreed that he would also apply for his broker's license.

   3. In attempting to obtain the necessary paperwork to take the broker's examination, Respondent discovered in late August 1995 that Petitioner's records had not been updated to reflect the transfer of his license to Century 21. It appears that Respondent was not yet aware of the other above-described impediments to licensure.

   4. Trying to update Petitioner's records, Respondent submitted the two forms that are the subject of the present disciplinary proceeding.

   5. The first form was a Request for License or Change of Status, which Respondent faxed to Petitioner. Respondent completed the top section of this form, which is to be completed by the licensee. He signed it beside a typed-in date of December 30, 1993, which was the effective date of the transfer of his license to Century 21. Petitioner has not objected to anything in this section.

   6. The next section is to be completed by the broker/employer or nonlicensed owner/employer. At the bottom of this section are the words, "Broker or Non-Licensed Owner Sign Here:". Respondent hand-wrote Mr. Bayer's name in what he described as printing, but, on a blurry fax, could be mistaken for a signature for someone unfamiliar with Mr. Bayer's signature. Beside Mr. Bayer's name "December 30, 1993" was typed in. Petitioner has objected to Respondent's undisclosed signing of Mr. Bayer's name on this form.

   7. On September 11, 1995, Petitioner received another Request for License or Change of Status form. The bottom section of this form was signed by Mr. Bayer at the bottom in script considerably different from that of the earlier form. The top section of this form is filled out exactly as the earlier form, with Respondent's signature beside the typed-in date of "December 30, 1993." Petitioner objected to the typed-in date because it was nearly two years prior to the date that the form was filed.

   8. As to the second objection, there is nothing in the record to suggest that Respondent was trying to file paperwork with Petitioner in 1995 that was misdated so as to suggest that it was filed two years earlier. The 1993 date was the effective date of the license transfer. The form does not state "Date Signed"--only "Date." There is no place on the form to show an earlier effective date.

   9. Not only was Respondent not trying to mislead Petitioner with the date on the form, but it is almost impossible to find that the date was misleading. There is no way to conceal that the forms were filed in September 1995, not December 1993. Respondent even sent the second form certified, return receipt requested, so as to document further that the form was sent in 1995. In the absence of another place on the form to show the effective date of the transfer, Respondent's use of the date line to show the effective date was reasonable and not misleading.

   10. Thus, Respondent did not intend to mislead with this date entry, and no one could reasonably have claimed to have been misled by this date entry. Interestingly, Petitioner did not claim that Respondent's first form, which had a similar date entry, was misleading as to the date.

   11. As to the first form, Petitioner's objection is more substantial: Respondent signed Mr. Bayer's name without disclosing that he was doing so.

   12. Mr. Bayer testified that he would have signed the form in December 1993 or September 1995 because Respondent in fact had transferred his license to Century 21 in December 1993.

   13. The record does not establish that Mr. Bayer authorized Respondent to sign the form before he did so, but the record clearly established that he ratified the signature. A few days after the first form was faxed, Mr. Bayer signed a form and sent it to Petitioner.

   14. Clearly, Respondent's handling of the signature of Mr. Bayer does not rise to misrepresentation, false promises, or dishonest dealing by trick, scheme, or device. There was not fraudulent intent.

   15. The question is closer as to whether Respondent's handling of the signature rises to the level of making or filing a false report or record which the licensee knows to be false. Given the standard of evidence imposed upon Petitioner, there is considerable doubt whether the factual basis supporting a finding that Respondent signed as the agent of Mr. Bayer, who immediately ratified the act to eliminate any doubt as to its authorization, is sufficient to find that Petitioner has proved by clear and convincing evidence that Respondent knowingly made or filed a false report or record.

   16. However, the parties stipulated to a violation of at least one count, and the administrative law judge accepted the stipulation.

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes.

   18. Section 475.25(1)(b) and (l), Florida Statutes, prohibit misrepresentation, false promises, or dishonest dealing by trick, scheme or device and making or filing a false report or record that the licensee knows to be false.

   19. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   20. By stipulation, there is a single violation in this case: the only violation arguably supported by the facts is of knowingly making or filing a false report. Clearly, the facts support no other findings adverse to Respondent.

   21. Rule 61J2-24.001(3)(m), Florida Administrative Code, provides that the usual penalty range for filing a false report or record is an administrative fine of $1000 to a two- year suspension. However, mitigating factors have been noted above.

   22. If the Florida Real Estate Commission does not choose to reject the stipulation and dismiss the Administrative Complaint, it should issue only a notice of noncompliance, pursuant to Section 455.255(3)(b), Florida Statutes.

RECOMMENDATION

It is

RECOMMENDED that the Florida Real Estate Commission enter a final order either dismissing the Administrative Complaint

or finding Respondent guilty of knowingly making or filing a false record or report and issuing a notice of noncompliance.

DONE AND ENTERED this 27th day of October, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 27th day of October, 1998.

COPIES FURNISHED:

Steven D. Fieldman, Chief Attorney Division of Real Estate

Department of Business and Professional Regulation

Post Office Box 1900 Orlando, Florida 32802-1900

Jeanette Martinez

Porter, Wright, Morris & Arthur 4501 Tamiami Trail North, Suite 400

Naples, Florida 34103

Lynda L. Goodgame, General Counsel Office of the 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: 98-002435

Orders for Case No: 98-002435