STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDGAR M. GREEN, JR., ) FLORIDA REAL ESTATE COMMISSION )

)

Petitioner, )

)

vs. ) CASE NO. 75-2103

)

MOLLIE LEE WARRINGTON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in Room 921, Seybold Building, Miami, Florida, on February 24, 1976, at 10:35 a.m. This matter arose upon an Administrative Complaint and Notice filed by the Florida Real Estate Commission against Mollie Lee Warrington, alleging that said Mollie Lee Warring ton violated Subsections 475.42(1)(b) and 475.25(1)(d,,), Florida Statutes, as follows:

"(2) That on or about April 25, 1974, the Defendant transmitted to the Better Business Bureau of South Florida a Business Information Form and a handwritten letter signed by

Mollie L. Warrington as treasurer of Happy Hone Hunters, Inc. A copy of said Business Information Form and holographic letter is attached hereto as Plaintiff's Exhibit 1.

1. That telephone service was installed for Happy Homes Hunters, Inc., by Southern Bell Telephone and Telegraph Company, whose records reflect that Mollie Lee Warrington is Vice President of Happy Home Hunters, Inc.

   
   

2. That by reason of the foregoing, the Defendant Licensee, Mollie Lee Warrington,

is guilty of holding herself out and operating as a real estate broker as defined in Sub- section 475.01(3) while registered as a real estate salesman in violation of Subsection 475.42(1)(b), Florida Statutes, and Subsection 475.25(1)(d), Florida Statutes."

The Respondent, Warrington, petitioned for a formal hearing and the Florida Real Estate Commission referred the matter to the Division of Administrative Hearings to have a Hearing Officer assigned to conduct the hearing pursuant to Section 120.57, Florida Statutes.

APPEARANCES

For Petitioner: Richard J. R. Parkinson, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32759

The Defendant did not appear and was not represented by Counsel,

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Mollie Lee Warrington received due and proper notice of the hearing. Mollie Lee Warrington is and was a registered real estate salesman and at the time here in question was employed by Happy Home Hunters, Inc. a real estate broker corporation.

   
   

2. The Florida Real Estate Commission also introduced into evidence Exhibit D, a Business Information Form sent to Happy Home Hunters, Inc. by the Better Business Bureau of South Florida, signed "Mollie Lee Warrington, Treasurer," and a letter signed "Lee Warrington" to Mr. Smathers of the Better Business Bureau of South Florida, both dated April 25, 1974. -

   
   

3. John Correia, Vice President of the Better Business Bureau of South Florida, testified that the business records of the Better Business Bureau of South Florida, to include the Business Information Form (Exhibit D), were not available to the public, but that the information contained on the Business Information Form was provided to members of the public contacting the Better Business Bureau. Specifically, Mr. Correia indicated that members of the public who contacted the Better Business Bureau would generally be referred to the individual who had provided the information contained on the Business Information Form, which in the case of Happy Hone Hunters, Inc. would be Mollie

L. Warrington. The record does not reveal any specific instance in which Mollie Warrington's corporate status was provided to the public. The records does not clearly indicate whether the corporate officers as stated in the Business Information Form would be provided to members of the public. See Transcript, p.

1. Mr. Correia did not identify the signature of Mollie Warrington on the documents and no testimony was received that the Respondent had in fact signed and sent to the Better Business Bureau either the letter or the form. The Commission failed to prove that the Respondent sent or signed the form.

   Further, assuming the Respondent did sign and transmit the document, there is no evidence that the information contained relating to her corporate status was given to the public by the Better Business Bureau of South Florida.

   
   

   1. Edgar M. Greene, Jr., investigator for the Florida Real Estate Commission, testified that he had served a subpoena duces tecun upon Southern Bell Telephone and Telegraph Company and Mr. P. M. King and pursuant to such subpoena received the documents marked and received into evidence as Exhibit F, Mr., Greene had no knowledge of the source of the information contained in the records, The Hearing Officer having reviewed the records (Exhibit F) finds that they do not indicate the source of the data contained therein. There is no evidence in the record that the Respondent was responsible for the representation made to the telephone company that she was a corporate officer.

      
      

   2. The Commission's position regarding the law applicable to the charges is that the Respondent held out to the public that she was a corporate officer,

      that corporate officers by law must be real estate brokers, therefore, the Respondent held out to the public that she was a real estate broker. See Commission Counsel's representation on p. 7 of the transcript.

      
      

   3. In reaching this interpretation of the statutes, the Commission has rea the provisions of Section 475.01(3) which defines any person who is an officer of a corporate broker as operating as a real estate broker back into the provisions of Section 475.01(2) which defines a real estate salesman or broker as anyone who advertises or holds out to the public that they are engage in the business of selling, renting, etc. real estate.

      
      

   4. Beyond the fact that these statutes involve penal sanctions and must be strictly construed, the basic premise of this interpretation is in error. Section 475.01(2) is a general definition of both salesman and broker. All the acts enumerated in Section 475.01(2) can legally be performed by either a salesman or broker except those acts enumerated in Section 475.01(3) which may only be performed by brokers. Section 475.01(3) does not concern itself with holding out to the public, but declares that corporate officers of corporate brokers operate as brokers. The record is clear that Respondent was not an officer of the corporation. See p. 85 of the transcript.

      
      

   5. Additional evidence was received at hearing that the Respondent's acts and business policies were free from direction, control or management of another person; however, violation of this specific provision of Subsection (3) of Section 475.01 is not charged in the Administrative Complaint. The Administrative Complaint limits itself specifically to the instances of the Respondent holding herself out as an officer of the corporation. While it may be argued that the niceties of pleadings do not apply to administrative proceedings, the case law clearly provides that facts in the Complaint shall be alleged in concise, simple language and shall be deemed to afford notice of the charge, if a person of ordinary understanding may reasonably be enabled to present his defense. Both the Information and Answer shall be aided and deemed amended by the proof if the opposite party shall be afforded full opportunity to meet and defend against or rebut such proof. See Thorn vs. Real Estate Commission, 146 So.2nd 907 at page 909.

      
      

   6. Under the facts of Thorn above, where the Respondent had been charged with conspiracy and found to be guilty of aiding and abetting, the court stated:

      
      

      "The variance in the charge in the Information and the guilty findings of the Commission, was not material since all of the facts surrounding the transaction were the same and the findings were that the acts were done by way of aiding and assisting, rather than in furtherance of

      a conspiracy."

      
      

   7. Unlike Thorn, in the instant case there is a substantial difference between alleging that a person has held herself out to the public to be the officer of a corporate broker and alleging that a person's business policies and acts were free from direction, control or management of another person. while it has been argued that alleging the Respondent was operating as a real estate broker as defined in Section 475.01(3), Florida Statutes, would constitute sufficient notice, the Hearing Officer having considered the acts alleged in the Complaint to have been committed by the Respondent and the provisions of Subsection (3) of Section 475.01, finds as a matter of law that the general allegation contained in paragraph 4 of the Complaint is insufficient to put the

      Respondent on notice of the charges. A person of ordinary understanding would not reasonably be able to prepare a defense, and meet and defend against or rebut proof of such broad allegations, but would be led solely to defend against the charges of being a corporate officer.

      
      

   8. Because the Administrative Complaint did not adequately state the factual allegations upon which the Commission presented evidence regarding the Respondent's alleged unsupervised business activities, the Complaint fails to meet the minimum due process requirements of notice to which the Respondent is entitled under Chapter 475 and 120, Florida Statutes, and the Florida and United States Constitutions. See Wood vs. Department of Transportation, Bureau of Aviation, etc. 325 So.2nd 24. Based on the foregoing conclusions of law, the Hearing Officer has not considered the evidence and testimony presented with regard to the Commission's contention that her unsupervised activities in behalf of Happy Home Hunters, Inc., and would recommend that the Commission also disregard said testimony and evidence.

RECOMMENDATION

Based upon the foregoing conclusions of law and findings of fact, the Bearing Officer recommends that the Respondent's registration as a real estate salesman not be revoked or suspended.

DONE and ORDERED this 6th day of April, 1976.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Mollie Lee Warrington

990 Northeast 89th Terrace Miami, Florida 33138

Docket for Case No: 75-002103

Orders for Case No: 75-002103