STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 03-4097PL

)

LEA MICHELE TAYLOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in West Palm Beach, Florida, on January 27, 2004.

APPEARANCES

For Petitioner: James P. Harwood

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street Suite 802, North

Orlando, Florida 32802-1900

For Respondent: Richard L. Robbins

Sutherland, Asbill & Brennan, LLP 999 Peachtree Street, Northeast Atlanta, Georgia 30309-3996

STATEMENT OF THE ISSUE

The issue is whether Respondent is 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 violation of Section 475.25(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint filed March 24, 2003, Petitioner alleged that, on December 6, 2001, Respondent, a licensed real estate salesperson, signed a statement that she did not know Lea Taylor Nola and that she had never been married. The Administrative Complaint alleges that the purpose of these statements was to obtain a mortgage loan for a residence that Respondent was purchasing. The Administrative Complaint alleges that Respondent obtained the mortgage loan.

Count I of the Administrative Complaint alleges that Respondent is 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 violation of Section 475.25(1)(b), Florida Statutes.

Count II of the Administrative Complaint alleges that Respondent is guilty of having placed, or caused to be placed, in the County public records any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing that purports to affect the title of, or encumber, any real property, despite knowing that the document is false or unauthorized, in violation

of Section 475.25(1)(j), Florida Statutes, and, thus, Section 476.25(1)(a), Florida Statutes.

At the hearing, Petitioner withdrew Count II. For Count I, Petitioner called two witnesses and offered into evidence five exhibits: Petitioner Exhibits 2-5 and 7. Respondent called two witnesses and offered into evidence no exhibits. All exhibits were admitted.

The court reporter filed the transcript on May 10, 2004.

The parties did not file proposed recommended orders.

FINDINGS OF FACT

1. Respondent was first licensed as a real estate salesperson in Florida in 1997. She has been licensed continuously since that time, although she did not reside or work in Florida for one year in 1998 and 1999. Her license has never been disciplined.

2. Having entered into a contract to purchase, as her personal residence, a townhouse in Palm Beach Gardens for

   $85,000, Respondent contacted a licensed mortgage broker, Gary Carlson. Respondent and Mr. Carlson had previously worked together, in their respective professions, while employed by a large residential real estate business. Respondent asked

   Mr. Carlson to find her a mortgage lender, and Mr. Carlson agreed to do so.

3. Mr. Carlson obtained a mortgage loan application from Respondent and submitted it to an institutional mortgage lender that Mr. Carlson represented. At all times in this transaction, Mr. Carlson served as the agent of the mortgage lender, not Respondent.

4. After examining the application and related information on the proposed mortgage loan, the lender directed Mr. Carlson to obtain additional information, including an affidavit to the effect that Respondent had never been known as Lea Taylor Nola and that she had never been married.

5. Respondent disclosed to Mr. Carlson that she had been known as Lea Taylor Nola and she had been married, although she was now divorced. Mr. Carlson assured her that the requirements were unimportant and advised her to sign statements that she did not know Lea Taylor Nola and that she had never been married. Respondent did so. Upon examination of the closing documents, including the unattested statements described in this paragraph, the lender funded the mortgage loan, and Respondent purchased the townhouse. The mortgage loan remains in good standing two years later.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

7. Pursuant to Section 475.25(1)(b), Florida Statutes, Petitioner may discipline Respondent's license if it proves that she is guilty of

   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.

   
   

8. 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).

9. Petitioner's proof fails in this case for two reasons.

First, Respondent is not guilty of any fraud or other misdealing because, prior to closing, she disclosed the facts to

Mr. Carlson, who served as the lender's agent in the transaction. See, e.g., Williamson v. Clark, 120 So. 2d 637 (Fla. 2d DCA 1960) (evidence supported finding that mortgage broker was agent of mortgage lender, so as to support judgment forfeiting principal and interest on usurious loan). Thus, Respondent disclosed the facts to Mr. Carlson's principal, the mortgage lender. Second, any misstatements were immaterial and inconsequential, as evidenced by Mr. Carlson's treatment of the matter and the lender's evident willingness to drop the requirement of an affidavit prior to funding the loan.

RECOMMENDATION

It is

RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 30th day of June, 2004, in Tallahassee, Leon County, Florida.

S

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2004.

COPIES FURNISHED:

Jauna Watkins, Acting Director Division of Real Estate

400 West Robinson Street Suite 802, North Orlando, Florida 32801

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

James P. Harwood Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street Suite 802, North

Orlando, Florida 32802-1900

Richard L. Robbins

Sutherland, Asbill & Brennan, LLP 999 Peachtree Street, Northeast Atlanta, Georgia 30309-3996

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: 03-004097PL

Orders for Case No: 03-004097PL