STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 99-2209

)

CYNTHIA L. HAWTHORNE, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on September 24, 1999, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was the Lake County Judicial Center, 550 West Main Street, Tavares, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Division of Real Estate Department of Business and

Professional Regulation Suite N-308

400 West Robinson Street Orlando, Florida 32801

For Respondent: Kevin Palley, Esquire

Kevin Palley, P.A. Suite B-2

520 Southeast Fort King Street Ocala, Florida 34471

STATEMENT OF THE ISSUE

Is Respondent guilty of operating as a real estate salesperson, without being the holder of a valid and current license as a real estate salesperson, in violation of

Section 475.42(1)(a), Florida Statutes, and thereby in violation of Section 475.25(1)(e), Florida Statutes?

PRELIMINARY STATEMENT

Petitioner, through an administrative complaint in FDBPR Case No. 98-81040, accused Respondent of the aforementioned violations and seeks to impose penalties in accordance with Section 475.25(1), Florida Statutes, and Rule 61J2-24.001, Florida Administrative Code. Respondent disputed the allegations of fact in the administrative complaint. Consequently, the case was forwarded to the Division of Administrative Hearings for conduct of a formal hearing to resolve the disputed facts. See Sections 120.569 and 120.57(1), Florida Statutes. The case was then assigned to the undersigned to conduct a formal hearing.

At hearing, Petitioner presented the witnesses Marita Dorr and Michael Remmel. Petitioner's Exhibits numbered 1 through 3 were admitted. Petitioner's Exhibits numbered 4 through 10 were identified and discussed but not admitted. Petitioner's Exhibits numbered 4 through 10 for identification are also submitted with the record. Respondent testified in her own behalf. Respondent presented the testimony of Myra Paxton and Larry Bedford Morris. Respondent's Exhibit numbered 1 was admitted.

Petitioner's counsel requested that official recognition be made of Section 20.165, Florida Statutes, and Chapters 120, 455, and 475, Florida Statutes, together with Chapter 61J2, Florida Administrative Code. That request was granted.

On October 12, 1999, a hearing transcript was filed. The parties timely submitted proposed recommended orders which have been considered in preparing the recommended order.

FINDINGS OF FACT

1. Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of Florida related to the practice of real estate. Authority for the conduct of Petitioner's duties is found in Section 20.165, Florida Statutes; Chapters 120, 455, and 475, Florida Statutes; and associated rules.

2. At present, Respondent holds a license as a real estate salesperson, license no. SL0631299, issued by Petitioner.

3. From January 3, 1997, until February 13, 1998, Respondent was employed as an active salesperson in association with Marita Ann Dorr, Inc. (the Dorr firm), a broker corporation trading as Home Town Property Management. During that time Marita Dorr served as Respondent's employing broker. The Dorr firm was located at 109 West Lakeview Street, Lady Lake, Florida 32159.

4. Respondent's duties during the time she was affiliated with the Dorr firm was that of an independent contractor real estate salesperson engaged in the sale of real estate at Sandlewood Condominiums, in Wildwood, Florida. In that time period, Respondent was also acting as the manager of Sandlewood Condominiums, which involved bookkeeping, supervision of maintenance, and serving as a receptionist.

5. On February 13, 1998, Ms. Dorr informed Respondent that Respondent was terminated as a real estate salesperson affiliated with the Dorr firm. On that same date Ms. Dorr executed a form

   400.5 which reflected the request for change of status in Respondent's license, noting that Respondent was terminated from employment with the Dorr firm. That form was received by Petitioner on February 13, 1998. In addition, Ms. Dorr wrote to Respondent on February 13, 1998, to enclose the executed form

   400.5 noting the termination of Respondent's employment of the Dorr firm. On February 17, 1998, Respondent received the letter and a copy of the request for change of status of her license under form 400.5.

6. From February 14, 1998, through March 22, 1998, Respondent did not have a current active license to practice real estate as a salesperson because Respondent was not associated with a real estate broker.

7. Mr. Michael D. Remmel was interested in possibly purchasing a condominium unit at the Sandlewood Condominiums and

   had a conversation with Respondent concerning the possible purchase. His initial contact with Respondent predated her termination as a real estate salesperson affiliated with the Dorr firm.

8. On February 17, 1998, after being told that she was terminated and receiving the letter from Ms. Dorr with the attached form 400.5, concerning the termination, Respondent again had contact with Mr. Remmel about the possible purchase of a condominium unit. Mr. Remmel initiated that purchase contract.

9. On February 17, 1998, Mr. Remmel made an offer to purchase a unit in the Sandlewood Condominiums by executing a contract for sale and purchase as buyer. Respondent helped complete the contract form in its details by filling out the form, with the exception of Mr. Remmel's signature. The form noted that Home Town Property Management was the cooperating broker. A copy of the contract for sale and purchase is found as Petitioner's Exhibit No. 1.

10. At the time that Respondent assisted Mr. Remmel in preparing the contract for sale and purchase, Respondent acknowledged to Mr. Remmel that she had been terminated as a salesperson and that her salesperson's real estate license was no longer active. Respondent told Mr. Remmel that she would have to call Ms. Dorr and find out if she could make the offer to the listing broker for the unit Mr. Remmel wished to purchase.

    Before writing the contract, Respondent spoke to Ms. Dorr. In

    the conversation Ms. Dorr commented on the fact that the form

    
    

    400.5 had already been submitted to Petitioner and Respondent acknowledged receiving the copy of the form. Ms. Dorr reminded Respondent that Respondent should not be writing or soliciting real estate business. Respondent replied that she understood that but contended that Respondent was not soliciting the business. Respondent referred to the fact that Mr. Remmel was in the office and wanted to make an offer. Respondent asked Ms. Dorr if Ms. Dorr wanted Respondent to write up the contract and put Ms. Dorr's name on the bottom of it. Ms. Dorr responded "yes." Respondent asked what date to place. Ms. Dorr said to put "today's date." Notwithstanding Ms. Dorr's remarks Respondent recognized that she had not been rehired formally by Ms. Dorr and that, in the eyes of Petitioner, Respondent's real

    estate salesperson license was still inactive based upon the fact that Respondent did not have a named qualifying broker.

    Respondent acknowledges that she should have known better than to write the contract but that she wrote the contract because

    Ms. Dorr told her to.

    
    

11. The property that Mr. Remmel made an offer on was listed with Myra Paxton, the broker for Paxton Realty. During the course of the transaction that took place between Respondent and Mr. Remmel concerning the property, Respondent called

    Ms. Paxton on February 17, 1998, and told Ms. Paxton that a copy of the contract was being faxed to Ms. Paxton. Respondent asked

    Ms. Paxton if Ms. Paxton wanted to write the contract or wanted Respondent to write it. Ms. Paxton reminded Respondent that Ms. Paxton was not Respondent's broker and could not tell Respondent what Respondent should do. Respondent then called

    Ms. Paxton again and told Ms. Paxton that "Marita," which name is inferred as a reference to Ms. Dorr, had told Respondent to write the contract under Ms. Dorr's authority and to bring it to

    Ms. Dorr. On February 17, 1998, Respondent faxed Ms. Paxton a copy of the contract for sale and purchase.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

13. Petitioner intends to impose a penalty against Respondent's real estate salesperson's license. Before taking that action, Petitioner must prove by clear and convincing evidence that Respondent was involved in the solicitation of a contract offer for the purchase of real estate in which Michael Remmel was the buyer. Further, the proof must show this occurred at a time when Respondent's real estate salesperson's license was inactive, Respondent having been terminated from employment by Ms. Dorr, the employing broker.

14. Given the submission of the form 400.5 and the recognition by Petitioner that Respondent's salesperson's license

    was not currently active on February 17, 1998, a fact known to Respondent, Respondent was not entitled to operate as a salesperson in that Respondent's license was not a current active license. In that sense, Respondent violated Section 475.42(1)(a), Florida Statutes, and thereby violated Section 475.25(1)(e), Florida Statutes. This conclusion is mitigated when considering the informal authorization by Ms. Dorr to write the contract on February 17, 1998, without first having changed Respondent's status with Petitioner by submitting a new form

    400.5 noting Respondent's reemployment with the Dorr firm.

    
    

15. Respondent is subject to the discipline set forth in Section 475.25(1), Florida Statutes. The severity of that discipline should not mirror the expectations in Rule 61J-24.001, Florida Administrative Code.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding Respondent in violation of Sections 475.42(1)(a) and 475.25(1)(e), Florida Statutes, and issuing a letter of reprimand.

DONE AND ENTERED this 10th day of November, 1999, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1999.

COPIES FURNISHED:

Daniel Villazon, Esquire Division of Real Estate Department of Business and

Professional Regulation Suite N-308

400 West Robinson Street Orlando, Florida 32801

Kevin Palley, Esquire Kevin Palley, P.A. Suite B-2

520 Southeast Fort King Street Ocala, Florida 34471

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Herbert S. Fecker, Director Division of Real Estate Department of Business and

Professional Regulation

400 West Robinson Street Orlando, Florida 32801

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: 99-002209

Orders for Case No: 99-002209