STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

ex rel. G. H. Shea, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1749

) CASE NO. 75-1750

MARY C. GOODWIN, and )

MARY LOU KETRIDGE )

)

Respondents, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on February 13, 1976 at Ft. Myers, Florida.

APPEARANCES

For Petitioner: Frederick W. Jones, Esquire

Staff Counsel

Florida Real Estate Commission

For Respondent: Harry Blair, Esquire (Goodwin) Post Office Box 1467

Ft. Myers, Florida 33902

For Respondent: William J. Hudson, Jr., Esquire (Ketridge) 1515 Cape Coral Parkway

Cape Coral, Florida 33904

By Informations filed May 28, 1975, the Florida Real Estate Commission ex rel. G. H. Shea, seeks to suspend or revoke the registration as real estate salespersons of Mary C. Goodwin and Mary Lou Ketridge on the allegations that in presenting and accepting a contract for the sale of a residence located at 826 Montclair Court, Cape Coral, Florida, the Respondents were each guilty of misrepresentation, concealment, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction, in violation of subsection 475.25(1)(a) Florida Statutes.

At the commencement of the hearing Respondent Goodwin, joined by Respondent Ketridge, moved to quash the proceedings on the grounds of lack of due process and other grounds not now relevant. A Motion for Continuance was also made by Respondents. Petitioner moved to sever the two cases which had been consolidated by the hearing officer for hearing. All of these motions were denied.

Thereafter the parties stipulated into evidence eight exhibits offered by the Real Estate Commission.

FINDINGS OF FACT

1. The facts as alleged in the Informations and supported by Exhibits 1 - 7, are that on April 12, 1972 Respondent Goodwin's office accepted a listing contract with the owners of this property and submitted same to the Multiple Listing Service of the Cape Coral Board of Realtors. A subsequent multiple listing dated June 12, 1972 was also submitted to the Multiple Listing Service of the Cape Coral Board of Realtors. Thereafter, on June 16, 1972 the property was leased to one Sommers for a period of one year. This lease made no provision for termination of the lease or vacation of the premises in the event the property was sold.

   
   

2. Thereafter on August 18, 1972 Respondent Ketridge obtained an offer to purchase the property and submitted same to Respondent Goodwin. The contract provided inter alia that possession of the property go to buyer as of date of closing. This offer was subsequently accepted by the owners of the property.

   
   

3. The Informations further contained allegations that the purchasers of the property were assured that their offer would be accepted; and that they returned to Minnesota, sold their home and moved their possessions to Cape Coral in anticipation of moving into the residence upon date of closing.

   
   

4. In an amended answer to the information and interrogatories filed by Respondent Goodwin on December 8, 1975 Respondent Goodwin requested a continuance of this hearing in order to allow time to obtain an attorney. By order dated December 12, 1975 the hearing officer, without objection from Petitioner, granted the continuance. This order contained the following provision:

   
   

   "Inasmuch as the Goodwin case involves the same issues and circumstances as the Ketridge case, these cases have been set to be heard at a

   joint hearing and should continue to be heard jointly. Accordingly the request for continuance will be con- sidered applicable to both cases."

   
   

5. Following the receipt into evidence of the exhibits, petitioner renewed its motion for a severance. As grounds therefor Petitioner stated that since two complaints had been filed by the Real Estate Commission under separate headings and with different case numbers, they were entitled to two separate hearings despite the fact that both cases involve the same factual situation. When his motion was again denied Petitioner announced that it would not proceed with the presentation of the evidence in a consolidated hearing. When Petitioner persisted in refusing to proceed after being advised that the ruling to consolidate would be reconsidered if difficulties in the presentation of either case arose, the hearing was adjourned.

   
   

   CONCLUSIONS OF LAW

   
   

6. Rule 28-5.07 F.A.C. provides:

   
   

   "If there are separate matters before the hearing officer which involve similar issues of law, the same agency, fact or identity of parties, they

   may be consolidated. Any party to a matter before the hearing officer may request it be consolidated with another such matter. The hearing officer may,

   on his own initiative, order separate matters con- solidated."

7. Rule 1.270 Florida Rules of Civil Procedure provides in pertinent part: "(a) Consolidation. When actions involving a common

   question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the action; it may order all the actions consolidated; and it may

   make such orders concerning proceedings therein as may tend to avoid unnecessary cost or delay."

   
   

8. In 30 F. S. A. part of the Author's Comments on this rule are as follows:

   
   

   "The rule is one of trial convenience and the admini- stration of justice. Its use is within the discretion of the trial court. It should not be used to deprive a party of any substantive rights which would be denied unless the actions proceed separately. The rule is intended to benefit not only the litigants, but also the administration of the courts.

   
   

   Generally justice requires that an action should not be handled piecemeal when it reasonably can be avoided, and it should be administered with the least expense and vexation to the parties."

   
   

9. Inasmuch as a license revocation proceeding is quasi penal in nature, the rules of criminal procedure, although not conclusive in an administrative hearing, are of interest. Rule 3.150 of the Rules of Criminal Procedure provides in part:

   
   

   "(a) Joiner of offenses. Two or more offenses which are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses, or the felonies or misdemeanors, or both, are based upon the same act or transaction or on two or more connected acts or transactions."

   
   

   In the Committee Note - 1972 to the above rule in volume 33 F. S. A. the following appears:

   
   

   "If all defendants participated in a series of connected acts or transactions constituting

   two or more offenses the offenses can be joined under rule 3.150(a)."

   
   

   Rule 3.151 of the Florida Rules of Criminal Procedures provides in part:

   
   

   "(a) For purposes of these rules, two or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction

   or on two or more connected acts or transactions."

   Rule 3.152 of the Rules of Criminal Procedures deals with severances of offenses and defendants. With respect to severance of defendants the rule provides:

   
   

   "(b)(1) On motion of the state or a defendant

   the court shall order a severance of defendants and separate trials;

   1. before trial, upon a showing that such order is necessary to protect a defendant's right to a speedy trial, or is appropriate to promote a fair determina- tion of guilt or innocence of one or more defendants; or

   2. during trial, only with defendants consent and upon a showing that such order is necessary to achieve a fair determination of the guilt or innocence of

      one or more defendant."

      
      

      The respondents herein did not consent to a severance. They announced that they were ready to proceed with a consolidated hearing. In Roberts v. Keystone Trucking Co., 259 So.2d 171 (Fla. App. 1972) one of two defendants was dropped as a party because of asserted misjoinder in an action brought by the engineer of the train which collided with defendant's truck and Plaintiff appealed. In reversing the trial court the appellate court held:

      
      

      "The several claims asserted by the plaintiff arose out of a single transaction or occurrence, to wit: plaintiff's damages due to injuries sus- tained in the collision."

      
      

      "Rule 1.250(b) was not designed or intended to provide a means whereby a defendant, against whom plaintiff has a course of action and over whom jurisdiction has been acquired, to be dropped from the suit on defendant's own motion merely because such defendant does not wish to be sued or finds it inconvenient to be sued in the same suit with others."

      
      

10. From the foregoing it is concluded that the motion for severance was properly denied by the hearing officer and that these two cases should have been heard in a consolidated hearing for the purpose of saving the time of and expense to all parties involved. It is further concluded that the evidence submitted is insufficient to prove Respondents guilty of any alleged offense.

It is therefore,

RECOMMENDED that all charges against Respondents, Mary C. Goodwin and Mary Lou Ketridge be dismissed with prejudice.

DONE and ENTERED this 5th day of March, 1976, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 75-001749

Orders for Case No: 75-001749