FLORIDA REAL ESTATE COMMISSION, ) BY HAROLD T. MOONEY, )
vs. ) CASE NO. 75-1411
Respondent. )
On October 29, 1975, at 10:30 a.m., in Suite 103, Southeastern Building, 3314 Henderson Boulevard, Tampa, Florida, a hearing in the above captioned case was held before Charles C. Adams, a Hearing Officer with the State of Florida, Division of Administrative Hearings, being held pursuant to notice.
For Petitioner: S. Ralph Fetner, Jr., Esquire
The issue in this case involves the administrative charge which has been placed by the Florida Real Estate Commission in the person of Harold T. Mooney, against one Claude Talmadge Bray who is registered with the Florida Real Estate Commission as a real estate broker. The charging document which is drawn in the form of an information, says in pertinent part:
"(1) That the defendant did, on or about May 21, 1974, file his sworn application for registration as a real estate broker with the Florida Real Estate Commission on a form provided by said Commission. Question 16(a) of the application read as follows:
16(a) Have you served an apprenticeship as a real estate salesman with a registered real estate broker in the State of Florida for the 12 consecutive months within 5 years next prior to the date of this application? If yes, who was the registered broker and what is his business adress?
The defendant answered "yes" to the first part of the above question and "Tony Vaughan - Monteverde, Florida" to the second part of such question on his said application for registration.
WHEREFORE, plaintiff prays that this Information be filed and notice of the filing thereof be given to the Defendant and that proceedings be had, all in accordance with the provisions of Chapter 475, Florida Statutes, and if the evidence warrants, the registration of Claude Talmadge Bray be revoked."
The Respondent has denied the allegations set forth in the charging document, which is entitled an information, and proceeded to a hearing before the Division of Administrative Hearings in the person of the undersigned, under authority of Chapter 120, Florida Statutes.
The Petitioner presented its case on the basis of oral testimony presented at the hearing and through tangible items of evidence. The Respondent elected to present evidence in the course of the hearing, and did so through the
medium of oral testimony in the course of the hearing and through tangible evidence, which was the subject of a stipulation with the Petitioner.
The first witness presented by the Petitioner was Ralph J. Ramer, President of Hallmark Leisure Homes, Inc. Mr. Ramer was the former employer of the Respondent, and additionally was responsible for making a complaint which led to the investigation of this case by the Petitioner. This complaint was in the form of a letter from the witness, Ramer, addressed to the Petitioner and dated July 3, 1974. A copy of this letter has been received by the hearing officer as a Joint Exhibit of the Petitioner and Respondent and Is therefore made a part of the record in this cause.
Mr. Ramer indicated that he had hired the Respondent on September 10, 1971, as a salesman with the witness's then existing company, and that the Respondent had been promoted to a vice president's position in 1971 or 1972 after the incorporation of the witness's company. It was further related that the Respondent was terminated from employment by the witness on June 30, 1974.
During the course of the Respondent's employment with Hallmark Leisure Homes, Mr. Bray participated in a position which had as its major function the sale of construction contracts for the purpose of building homes on real estate which was held by the purchaser. In addition, when the Respondent became Vice President he made certain connections with the bank, in that he talked with the officers of the banks relative to financing. More specifically, Bray presented sales papers to banks, he followed up on proposed financing, he attended closings of loans if necessary, he took credit statements for potential purchasers, ordered surveys, ordered titles, ordered insurance, prepared deeds, prepared mortgage documents, worked with appraisers, conducted closings and he picked up certain bank draw disbursements from the lending institutions. At these closings, as aforementioned, mortgages were signed and funds were disbursed.
In relation to the question of whether or not Mr. Ramer's company and, more particularly, Mr. Bray, were involved in the active sale of real estate, he said that salesman could assist a potential customer in finding land to build houses on. Ramer also indicated that the company, Hallmark Leisure Homes, Inc., had bought four lots in Ocala and had built three houses on these lots.
The cause for dismissal of the Respondent, according to Mr. Ramer, was for the reasons set forth in the letter of July 3, 1974, by the witness. Ramer further elaborated that he didn't know that Lester L. Vaughan had made application for professional license to the Florida Construction Licensing Board, while Vaughan was working for Ramer. Therefore, when he found out that Bray was working full-time for the witness and at the same time helping other employees to obtain a contractor's license, which was felt to not be in the best interest of the company because it would promote competition against the company through the employee of the company, Ramer dismissed the Respondent.
In response to questions concerning the existence of a certain civil suit filed by the Respondent against Mr. Ramer, the witness acknowledged such a suit, but stated that he had no sense of vendetta against the Respondent.
While the Respondent was employed with Hallmark Leisure Homes, the Respondent was preparing for a real estate license exam and serving an apprenticeship according to Lester Vaughan, the younger At the same time there were negotiations with the officials at Hallmark Leisure Homes, in particular, Mr. Ramer, for the purpose of qualifying the real estate broker's license of
Lester T. Vaughan in establishing a branch office at the Hallmark Leisure Homes office location on North 40th Street, Tampa, Florida. Moreover, Mr. Ramer was in favor of this arrangement and it didn't appear that these negotiations to establish such an office were in any way designed to defraud the public from Vaughan the younger's observation.
When the witness, Lester Vaughan, was specifically asked questions about the nature of the sales in which the Respondent participated, he stated that the sales were not the sale of real estate per se. However, he did indicate that there was a similarity in his mind to the sale of real estate and the sale of "on your lot construction contracts", and he stated this opinion from his knowledge of the function of a real estate broker, being a real estate broker himself. As a matter of fact, the witness felt that the function performed by the Respondent, Bray, was much more detailed than the function of a real estate broker in carrying out the broker's duties. Another significant comment by the witness was his statement that the contract form used by Hallmark Leisure Homes was similar to the form utilized for real estate contracts, testifying from his knowledge.
In closing, the witness testified that he and the Respondent had looked for lots to be purchased to build homes on for prospective customers, but that they were never successful in achieving such an arrangement.
The Petitioner placed Lester T. Vaughan on the stand, who at the time of his testimony was also charged by the Florida Real Estate Commission in Progress Docket #2671 for Hillsborough County, with an offense relating to the apprenticeship of Claude Talmadge Bray. The witness, Lester T. Vaughan, indicated that he was not working at the time of his testimony, but he had been and office worker for a citrus company. He has been a licensed real estate broker since August of 1972; however, he has never transacted any real estate sales. The witness was shown Petitioner's Exhibits "B", "C", "D", and "E" and identified those documents. Exhibit "B" is a reference statement signed by the witness upon the request for application to be a real estate broker made by Claude Talmadge Bray before the Florida Real Estate Commission. Exhibit "C" by the Petitioner is an application for a branch office registration certificate. Petitioner's Exhibit "D" is a declaration of employment for apprenticeship purposes and Petitioner's Exhibit "E" is a statement of the. applicant's employment and apprenticeship by the witness, Lester Tony Vaughan. (All these documents are copies of the originals).
Lester T. Vaughan indicated that the Respondent, Bray, had not made any real estate sales while in his employ and that the figures in the affidavit which is Petitioner's Exhibit "E", were transactions mad Respondent was working with Hallmark Leisure Homes. The witness then testified that the Respondent told him that these were sales while in the employ of Hallmark Leisure Homes and further that he, the Respondent, could use those sales as a basis for stating experience in applying for a Real Estate Broker's License, even though they were not sales of real estate.
Lester T. Vaughan testified that he had not talked with Mr. Ramer about locating a branch office on North 40th Street, Tampa, Florida, at the business of Hallmark Leisure Homes, but to his knowledge Mr. Ramer had never voiced any objection to such a branch office at that location.
Lester T. Vaughan stated that he had never examined the contract forms or the closing statements utilized by Hallmark Leisure Homes. He had however
talked with the Respondent 4 or 5 times in Tampa and several times at his, the witness's home address, about real estate related matters.
At the close of the Petitioner's case, the Petitioner offered into evidence Exhibits "A" - "E", all of which have been particularly described, in the course of the findings of fact, with the exception of Exhibit "A" for identification, which is the application for registration as a real estate broker which was filed with the Florida Real Estate Commission by the Respondent, Claude Talmadge Bray. These items of evidence were admitted as evidence after examination and legal argument as will be further described in the section of this Recommended Order entitled CONCLUSIONS OF LAW.
The Respondent made certain motions at the Inception of the case directed to the sufficiency of the charging document and renewed these motions at the close of the Petitioner's case. These representations by the Respondent will be considered in the section entitled CONCLUSIONS OF LAW.
The Respondent offered witnesses in support of his position in the form of a witness to the facts contained in the allegations placed against the Respondent and certain character witnesses in his behalf. The Respondent further elected to take the stand in his own behalf. (All matters offered by the Respondent were premised on the eventuality that the Hearing Officer and/or the Florida Real Estate Commission did not agree with the Respondent's contention that the Petitioner had failed to meet its burden of proof, either in the statement of its pleadings or through presentation of its case in chief).
The presentation of testimony on the facts related in this matter was a brief recall of Lester T. Vaughn for purposes of testifying about the facts surrounding the apprenticeship. In this recall Lester T. Vaughan indicated that he felt that the Respondent was a smart young man, by way of responding to a question on the necessity for close supervision of the work by the Respondent. As a follow up he indicated that the broker apprentice did not need day to day supervision. Finally, the witness stated that he felt that bray would have called him if he had needed help from the witness.
When the Respondent took the stand, he testified that he is now employed with Ruby V. Williamson, a real estate broker, and that he has been so employed for 6 months as a realtor associate. A brief statement of his background prior to his present employment indicated that he had received formal education to include a bachelors degree and some graduate work, although It was not clear from the testimony that he received a graduate degree. Additionally, it was net established if the formal education had any significance in real estate work. Some of the positions held by the Respondent included work in educational television, teaching, sales positions, and eventually work with Jim Walter Corporation in home sales. While with Jim Walter he served as a branch manager of the offices in Lake City, Florida, Orlando, Florida, and Fredricksburg, Virginia, in the home construction division of that corporation. After leaving
Walter Corporation he worked briefly at Allstate Homes and then started with Hallmark Leisure Homes in 1971. At the beginning of his employment with Hallmark Leisure Homes they were a partnership and later became a corporation.
The Respondent stated that he started as a salesman with Hallmark Leisure Homes and was elevated to the position of vice president in that corporation at a later date. In his employment with Hallmark Leisure Homes he
said that the officials at Hallmark Leisure Homes thought that real estate expertise was an advantage aid, moreover, that to locate a real estate branch office at their business address on North 40th Street, Tampa, Florida would be advantageous.
His involvement with real estate licensing started with the issuance of a real estate salesman's license from the Florida Regal Estate Commission in 1971. After that time he decided to qualify for a real estate broker's license before the Florida State Real Estate Commission, and selected Lester T. Vaughan as his apprenticing broker on the basis of a suggestion made by Lester Vaughan, his coworker. For the record, Lester Vaughan is the son of Lester T. Vaughan. Hue indicated that he spoke to other realtors about the apprenticeship, in addition to conversations with Lester T. Vaughan. Two of these persons, Pearl Elliston and Clay Cordington were asked about their interpretation of the form which is Petitioner's Exhibit "E", relating to the numbers of real estate sales and attendance at closings of real estate sales. The Respondent stated that Mr. Cordington felt that the Respondent's experience with selling "on your own lot homes" was sufficient experience to be counted in responding to the form which is Petitioner's Exhibit "E". The witness felt that the reason for this response was because of the familiarity of Mr. Cordington with the work the Respondent was doing, in that the Respondent had sold Mr. Cordington two houses. The Respondent stated that Mrs. Elliston did not give him a definite answer on his inquiry. Furthermore the witness Indicated that he called the Florida Real Estate Commission office, particularly the licensing department, about what the blanks meant on the form which is Petitioner's Exhibit "E" and the blanks Involved with numbers of real estate sales, closings attended, and hours of instruction, and ethics and office operations etc. The witness stated that he spoke with some lady in the department that didn't seem to know what to do about that particular form. Upon the undersigned's examination of the witness on the question of whether or not he referred this matter to the superior of the lady who answered his inquiry, the witness responded that he did not.
By way of elaboration on the forms, the Respondent testified that he looked at the Land Book in order to comply with the matters set forth in the forms. The witness seemed to place emphasis on the fact that when he was provided with Petitioner's Exhibit "D", he was told that this was the only necessary form to be completed as part of the requirement for becoming a licensed real estate broker in the State of Florida, for that reason he seemed somewhat baffled by the form which is Petitioner's Exhibit "E". The witness went into some detail to explain how he arrived at the figures on the form which is Petitioner's Exhibit "E". Put concisely, the witness testified that the basis for the figures 56 and 24 upon Petitioner's Exhibit "E" were arrived at by examining "on your lot home sales" made while employed by Hallmark Leisure Homes and closings that he attended in connection with those sales. The figure 100 hours was arrived at by estimates in discussions with Lester T. Vaughan and lecture type course attendance. Bray stated that the figures on that form, Petitioner's Exhibit "E", had been discussed with Lester T. Vaughan, Ramer and Weisiger, another official at Hallmark Leisure Homes. There are other matters which constituted Involvement with real estate sales, but none of these listings were ever consummated through a real estate sale. Moreover, these figures involving listings for Hallmark Leisure Homes and Listings by the Respondent privately were not reflected in figures on Petitioner's Exhibit "E".
The Respondent seemed to, under questioning of whether the sales reflected in Petitioner's Exhibit "E" were real estate sales, be convinced at the time of hearing that the sales were not real estate sales per se, although at the time he was making the representations on Petitioner's Exhibit "E" he did
not seem as convinced of that fact. Nevertheless, because of the real estate related nature of the work done for Hallmark Leisure Homes, and because in many respects the witness felt that his function was more comprehensive than that of a real estate broker, he felt that the experience with Hallmark Leisure Homes was work which was a fulfillment of the requirement for apprenticeship.
Finally, the witness indicated that at the time he filled out the various forms for the Real Estate Commission that he had no intent to defraud or mislead by offering the statistics that he had set forth.
Testimony was offered by one Clifford Opp, Jr., Esquire, who has known the Respondent since he was 14 years old, to the extent of being in business with the Respondent, in a restaurant venture which was unsuccessful. He further stated that he, did not feel that the Respondent would provide false information to the Real Estate Commission. Although the witness had been in a confidential relationship with Hallmark Leisure Homes, as their attorney, and therefore unable to divulge any confidences; nevertheless, stated that he didn't recall any report of the company about the Respondent's conduct. In summary, the witness felt that the Respondent was trustworthy.
Wilbur J. Wells was called on behalf of the Respondent. Mr. Wells had been a coworker at Hallmark Leisure Homes, in addition to being in the same fraternity in college with the Respondent and in the restaurant business with the Respondent. Mr. Wells is now a realtor associate and has a real estate salesman's license issued by the Florida Real Estate Commission. He says that the Respondent's character in terms of truth and veracity is outstanding and that the witness did not believe that the Respondent would lie to the Real Estate Commission.
Ruby Williamson, the present employer of the Respondent was called. Ruby Williamson is a real estate broker, and she has known the Respondent for 6 or 7 years, and feels that the Respondent has an excellant reputation and would not lie to the Real Estate Commission.
Assuming the application of the cited statutes in the complaint, from the testimony set forth in the hearing it would appear that the Respondent did not intend to defraud, misrepresent, conceal, act under false pretenses, deal dishonestly or trick, unlawfully scheme or device, in violation of Section 425.25(1)(a), Florida Statutes, nor did the applicant intend to defraud, misrepresent, or conceal in violation of ss.425.25(2), Florida Statutes. Moreover, there has been insufficient showing that the Respondent lacks the necessary qualifications of honesty, truthfulness, trustworthiness and good character as required by ss.425.17, Florida Statutes. The facts show that the Respondent sought advise from practicing real estate brokers in Florida and the Florida Real Estate Commission before filling out Petitioner's Exhibit "E", and these facts are unrefuted. He acted upon that information about the exhibit in good faith. Considering the testimony of the relationship of the Respondent to Lester Tony Vaughan, his apprenticing broker, the Respondent was legitimately receiving counsel and acting in the employ of Lester Tony Vaughan, notwithstanding, the fact that the pursuit failed to consummate any real estate sales. The facts also Indicate that the Respondent received adequate supervision from Lester Tony Vaughan, because Florida Statutes, Chapter 475 and its rules and regulations do not require full time supervision or employment in qualifying for a real estate broker's license in Florida. The six or seven visits and conferences between Lester Tony Vaughan and the Respondent were sufficient compliance for a man in the Respondent's position considering the relationship of the sales activity he was performing for Hallmark Leisure Homes to the sale of real estate proper. Finally, certain evidential items were
offered in behalf of the Respondent. The first item was the letter dated January 3, 1974, written by R. J. Ramer, President of Hallmark Leisure Homes, Inc., addressed to the Florida Real Estate Commission. This letter has been received as a Joint Exhibit of the parties upon joint stipulation of the parties and has been marked as Joint Exhibit "1". A second document was offered by the Respondent in the form of a letter addressed to the Florida Construction Industry Licensing Beard on the subject of Lester Vaughn's application for license. This letter was written by R. J. Ramer, President, Hallmark Leisure Homes, Inc. This particular correspondence was not admitted far reasons set forth in the section entitled CONCLUSIONS OF LAW.
CONCLUSIONS OF LAW
After an initial examination of Petitioner's Exhibits "E" the Respondent entered into a stipulation with the Petitioner that those exhibits were authentic copies of the originals. When the Petitioner offered the Exhibits "A" - "E" in evidence, the Respondent objected on the basis that the matters, such as signatures had not been authenticated in the course of the Petitioner's presentation and were therefore not necessarily an accurate reflection of evidential matters pertaining to the Respondent. The Respondent's counsel was then given an opportunity to show the Petitioner's Exhibits "A" - "E" to the Respondent for his examination. After such examination the items of evidence, Petitioner's Exhibits "A" - "E" were accepted in evidence without further objection from the Respondent.
During the course of the Petitioner's case, the Respondent through the witness, R. J. Ramer, offered a certain letter from Mr. Ramer to the Florida Construction Industry Licensing Board as a Respondent's Exhibit. This item of evidence was objected to by the Petitioner, and ruling on the objection was reserved until the conclusion of all testimony in the proceedings which might relate to the matters set forth in that document which was the letter by R. J. Ramer. At the conclusion of the Respondent's case the ruling was made against introduction of such letter, because it was deemed to be irrelevant to the matters properly under consideration in the course of the hearing.
By way of pleading and in the course of oral argument the Petitioner, through its counsel, has suggested that Florida Statutes, Chapter 475.17(1), through its operative language, establishes a penalty by which the Florida Real Estate Commission may revoke the license of the Respondent, Claude Talmadge Bray. The particular section of the pleadings which is referred to Is as follows:
"(4) That by reason thereof, it appears that the Defendant, Claude Talmadge Bray, does not possess the necessary qualifications of honesty, truthfulness, trustworthiness and good character as
required by ss. 475.17(1), Florida Statutes."
This particular Section 475.17(1), Florida Statutes, has as its purpose in the instance of the Respondent, the definition of the qualifications of an applicant for registration, and does not serve the purpose of establishing a penalty provision for the violations set forth in the information herein.
Once the Respondent had been registered as a broker and granted a certificate, he no longer was an applicant within the meaning of Chapter 475 and consideration of his alleged misconduct must be in accordance with other
provisions of Chapter 475, separate and apart from Chapter 475.17(1), Florida Statutes.
The Petitioner next alleged that the Respondent had been guilty of a violation of Section 475.25(1)(a), Florida Statutes, by language which said in part:
"(4). . . has been guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing and trick, scheme or devise, in violation of s.475.25(1)(a), Florida Statutes."
This particular section of Chapter 475, Florida Statutes, does not seem to have application to the facts under consideration since it contemplates the regulation and punishment of realtors, either salesmen or brokers, who have committed offenses against the general public as opposed to offenses against the Florida Real Estate Commission, see Cohen v. Florida Real Estate Commission, 161 So.2d 252 (3 D.C.A. 1964); Horne v. Florida Real Estate Commission, 163 So.2d
515 (1 D.C.A. 1964); Reid v. Florida Real Estate Commission, 188 So.2d 846 (2
D.C.A. 1966). Furthermore, assuming the application of Section 475.25 (1)(a), Florida Statutes, to the facts as established in the course of this hearing, the Petitioner has failed to establish as a matter of law that the Respondent is guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing and trick, scheme or devise, in combination or singularly, although the Petitioner has shown that the incorrect or false answer as given was sufficient basis or cause for Issuance of a certificate from the Florida Real Estate Commission, see, Kozerowitz v. Stack, 219 So.2d 469 writ discharged, 226 So.2d 682, Cert. denied and App. dismd.397 U.S. 147, 25 LEd 2d 183, 90 SCt. 997. Finally, in consideration of Section 475.25(1)(a), Florida Statutes, it is noted that that subsection calls for the suspension of the license for violation of that subsection and in the Petitioner's prayer for relief it calls only for the revocation of the registration of Claude Talmadge Bray; however, the prayer for relief will be treated as a request for suspension.
The Petitioner cites to a final subsection of Chapter 475, Florida Statute for the establishment of an operative penalty against the Respondent, that particular subsection is subsection 425(2), Florida Statutes. In particular part of the information, the Petitioner states:
"(4). . . and that the defendant obtained his registration as a real estate broker with Florida Real Estate Commission by means of fraud, misrepresentation, or concealment in violation of s.475.25(2), Florida Statutes."
This section is found to have application as it relates to the establishment of standards and possible penalties which may be asserted against the Respondent under facts which were established in the course of this hearing. However, it is concluded as a matter of law the Petitioner has failed to show in the course of the hearing that the Respondent obtained his registration as a real estate broker with the Florida Real Estate Commission by means of fraud, misrepresentation, or concealment, in violation of ss. 475.25(2), Florida Statutes, although the Petitioner has shown that the incorrect or false answers as given in the application was sufficient as basis or cause for issuance of a certificate from the Florida Real Estate Commission, see, Kozerowitz v. Stack,
219 So.2d 469 writ discharged, 226 So.2d 682, Cert. denied and App. dismd. 397 U.S. 147, 25 LEd 2d 183, 90 SCt. 997.
Based upon the foregoing, it is recommended that the Respondent, Claude Talmadge Bray, be released from the charges brought under Progress Docket #2658, Hillsborough County, and that the Respondent go forth without penalty against his registration as a real estate broker in the State of Florida and that his certificate as broker-salesman remain in full force and effect. DONE and ENTERED this 2nd day of January, 1976, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
S. Ralph Fetner, Jr., Esquire (For the Commission) Florida Real Estate Commission
David Luther Woodward, Esquire Rose and Woodward, Chartered 1211 The Madison Building Tampa, Florida 33602
