STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2171

)

UNITED JAX RENTALS, INC., ) THOMAS J. CAPOBIANCO, BRUCE K. ) LAMMERT, RICHARD L. LEVINGER, ) DEBORAH K. PARNELL, )

AND ROSE J. VINES, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings at the Conference Room, Suite 205, Building "B", 6501 Arlington Expressway, Jacksonville, Florida, on April 18 and 19, 1978. The Respondents Richard L. Levinger, Deborah K. Parnell, and Rose J. Vines, were not in attendance at the hearing, notwithstanding proper attempts at notice. Richard L. Levinger, who has been unrepresented in this cause, did not respond to the attempts at service of the notice of hearing.

Deborah K. Parnell was not in attendance at the hearing; however, she was represented in the course of the hearing by John Winnie, Esquire. Mr. Winnie had filed his notice of appearance in behalf of Rose J. Vines, but at the beginning of the hearing, moved to withdraw as her counsel because he was unable to contact her prior to the hearing. This motion for withdrawal was granted by the undersigned, after a ruling had been made that the notice of hearing was sufficient in the case of Ms. Vines due to the service of the notice on Mr.

Winnie.

APPEARANCES

For Petitioner: Kenneth M. Meer, Esquire

Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

For Respondents: John S. Winnie, Esquire

Post Office Box 682 Gainesville, Florida 32602

ISSUES

The issues in this cause are those as set forth in the attached copy of the administrative complaint, which is made a part of this recommended order for purposes of setting out the issues to be considered.

FINDINGS OF FACT

1. The Florida Real Estate Commission, is an agency of the State of Florida, and has filed this administrative complaint as Petitioner against the licensee, United Jax Rentals, Inc., a registered corporate broker which holds license number 069690; Thomas J. Capobianco, a registered broker and active firm member of United Jax Rentals, Inc., who holds license nos. 0157568, 0157767, 0168549, 0168551 and 0169691; Bruce K. Lammert, who holds license no. 0177625 as a salesman; Richard L. Levinger, who holds license no. 0175791, as a salesman; Deborah K. Parnell, who holds license no. 0177268, as a salesman and Rose J. Vines, who holds license no. 0139543, as a salesman. This action is for the suspension or revocation or other discipline of the above named Respondents who are holders of the referenced licenses. The administrative complaint contains

   27 counts which are more specifically detailed in the attached copy of the administrative complaint.

   
   

2. Count one of the administrative complaint is an allegation against United Jax Rentals, Inc. and Thomas J Capobianco for matters pertaining to transactions between United Jax Rentals, Inc. and Reaves L. Mathison and Nancy

   A. Mathison. To prove the material facts found in the allegation which is count one, the Petitioner offered as evidence the depositions of Trenner J. Thompkins and Kathleen E. McDavid. These depositions are found as Petitioner's Exhibits 1 and 2, denied admission as evidence. The reason for the denial of the depositions was based, upon the fact that the depositions are a heresy report of a conversation between the Mathisons and representatives of United Jax Rentals, Inc., as made by the witnesses Thompkins and McDavid. Because these depositions are the only testimony offered to prove the allegations of count one and are not offered for the purpose of supplementing competent evidence, they may not be relied upon to arrive at conclusions about material disputes in fact. This prohibition is set out in Chapter 120.58, Florida Statutes. Therefore, there has been insufficient proof to establish any violations as alleged in count one of the administrative complaint.

   
   

3. Count two accuses Thomas J. Capobianco and United Jax Rentals, Inc. of violating Sections 475.25(1)(d) and (2), Florida Statutes. This violation is alleged to have occurred when the Respondent Thomas J. Capobianco submitted an application to be the corporate broker for United Jax Rentals, Inc., in October, 1976. Through that application, Capobianco listed the residence of the President of the corporation, who at that time was John MacDermott, as being 1642 North Main Street, Jacksonville, Florida. In fact that address was the business address of the corporation, United Jax Rentals, Inc. as opposed to the residence address of John MacDermott. Although this is a misstatement, it is not the type of misstatement which when considered in view of the truth of the matter, should have caused the rejection of the application. Therefore, the Petitioner has failed to demonstrate that there is any violation of Sections 477.25(1)(d) and (2), Florida Statutes. (The matters set out in the application may be found as part of Petitioners Composite Exhibit 3, which is admitted into evidence.)

   
   

4. Count three pertains to a certain transaction between United Jax Rentals, Inc. and J.P. and Anna Williams. Mrs. Williams testified that she had contacted Rose J. Vines, one of the employees of United Jax Rentals, Inc. Mrs. Williams explained to Ms. Vines that she had a house for rent and after discussion was entered into, Ms. Vines advised her what she considered to be a reasonable rental price that should be placed. That amount of rental was $250. Mrs. Williams testified that Ms. Vines stated that there would be no charged by the United Jax Rentals, Inc. for renting Mrs. Williams' house. A tenant was

   found and a contract was entered into with that tenant. A copy of the contract may be found as Petitioner's Exhibit 5, admitted into evidence. (The contract was with one David Ebanks who had paid United Jax Rentals, Inc. for finding him a place to live.) The Petitioner's Exhibit 9, admitted into evidence, shows the disbursement of certain funds collected from Ebanks and reflects a $250 commission in behalf of United Jax Rentals, Inc. The signature on that form is that of Richard L. Levinger an employee of United Jax Rentals, Inc. and a Respondent in this cause. Mrs. Williams also indicated that someone named Bruce took Mr. Ebanks to see the property prior to the rental contract being consummated. Beyond this testimony, no information was given about the involvement of United Jax Rentals, Inc., Thomas J. Capobianco or other members of the firm as alleged in the action clause of the count. In the absence of more specific information which tended to describe the involvement of United Jax Rentals, Inc., Thomas J Capobianco, Bruce K. Lammert, and Richard L. Levinger, the Petitioner has failed to make a sufficient showing of a violation of Section 475(1)(a) and (d), Florida Statutes, or Rule 21V-10.13, Florida Administrative Code.

   
   

5. No testimony was offered on the allegations set forth in count four, consequently no proof of violations of Section 475.25(1)(a) and (d), Florida Statutes, has been established.

   
   

6. Count five alleges that one Delores Logan paid an agent of the Respondent United Jax Rentals, Inc. $50 as a fee to find a rental property for her. The terms of the agreement between the representative of United Jax Rentals, Inc. and Ms. Logan may be found in the Petitioner's Exhibit 19, admitted into evidence. One of the special conditions of that agreement was that the property must fit the requirements of Ms. Logan or $45 of the $50 fee would be refunded. The particular requirement was that the dwelling be a single level home. Testimony shows that the property was actually for the benefit of one of her sisters; however, that is not a factor so crucial in nature that it would cause the proof of the allegation to fail. The contract document also gave the appearance that the refund should have been rendered by September 15, 1977. It was hard to determine from the testimony whether that condition was absolute; nonetheless, it is apparent that Ms. Logan had requested the refund in and around the month of September, 1977 and was not afforded the refund until November, 1977.

   
   

7. Ms. Logan dealt with someone at the United Jax Rentals, Inc. office whom she referred to as being "Larry". "Larry" gave her three addresses and she went to the first one and discovered someone was already residing there. She went to another address on that list of three or four addresses and found the house was a two-story house. The third location of the group of listings was also a two-story house and was thus unsatisfactory. She went back to United Jax Rentals, Inc. and got another list and one of the addresses on Crestwood, Jacksonville, Florida, was found to be occupied. She went to a second place on the second list which was located at 16th Street and evidently did not find that listing to be satisfactory.

   
   

8. After having no success with the two initial lists which were given to her by "Larry" she spoke to a person identified as "Bruce". "Bruce" said that he would get her a house, in the sense of giving her more listings. After a discussion, she demanded a refund from Bruce Lammert, whom she later determined was the "Bruce" that she had been dealing with. This is the same Bruce Lammert who is a named Respondent in this cause. Ms. Logan subsequently located a residence by means unrelated to the service of United Jax Rentals, Inc. After considering the allegations set forth in count five in view of the overall facts

   in the case to include the testimony pertaining to other counts within the complaint, it is concluded that Thomas J. Capobianco as active firm member of United Jax Rentals, Inc. and United Jax Rentals, Inc. through Mr. Capobianco are both guilty of culpable negligence as set out in Section 475.25(1)(a), Florida Statutes. No other violation of Section 475.25(1)(a), Florida Statutes, has been shown. No violation of Section 475.25(1)(d), Florida Statutes, has been shown.

   
   

9. In consideration of the facts offered in the discussion of count five of the administrative complaint, it is concluded that the Petitioner has failed to show violations as alleged in count six, on the part of United Jax Rentals, Inc. and Thomas J. Capobianco, such actions having been alleged to be in violation of Section 475.25(1)(c) and (d), Florida Statutes.

   
   

10. Count seven alleges that Deborah K. Parnell received a commission for showing houses to Larry and Clair Wells, after the Wellses had paid $40 on September 22, 1977 to the Respondent United Jax Rentals, Inc. This is felt to be a violation of the Petitioner's laws because at the time Respondent Parnell was registered as a salesman for Rental Finders, Inc. of Ft. Lauderdale, Florida. The Specific allegation is that it is a violation to operate as a salesman for a person or organization not registered as your employer. Consequently this constitutes a violation, according to the Petitioner, of Section 475.42(1) Florida Statutes, and Section 475.25(1)(d), Florida Statutes. The rental contract between the Wellses and the landlord, H. G. Johnson may be found as Petitioner's Exhibit 7 and Respondent's Exhibit 1, admitted into evidence. The property had been shown to the Wellses by a member of United Jax Rentals, Inc. and the contract was signed by the Wellses at a time different than that when it was signed by Mr. Johnson. Nonetheless, the testimony by Mr. Johnson demonstrated that a person, established as being Deborah Parnell, did coordinate the matters of consummating the rental contract between Johnson and the Wellses and did this work in behalf of United Jax Rentals, Inc. at a time when Parnell was registered as a salesman for Rental Finders, Inc. in Ft. Lauderdale. This registration may be found as part of Petitioner's Composite Exhibit 3, admitted into evidence. Therefore, Deborah Parnell is in violation of Section 475.42(1)(b), Florida Statutes, as implemented by Section 475.25(1)(d), Florida Statutes.

    
    

11. The violation by Deborah Parnell established herein, also would cause a violation on the part of United Jax Rentals, Inc. and Thomas J. Capobianco of the conditions found in Section 475.42(1)(c), Florida Statutes, as implemented by 475.25(1)(d), Florida Statutes; in that the corporation and acting broker were employing Deborah Parnell as a real estate salesman, who is not the holder of a valid current registration certificate as salesman for United Jax Rentals, Inc. These allegations pertain to count eight.

    
    

12. Counts nine and ten charge violations for transactions involving James Weinheimer and his wife, in their dealings with United Jax Rentals, Inc. and employees of that firm. No testimony was offered concerning the transaction with James Weinheimer and his wife and consequently there was insufficient proof to establish a violation on the part of any of the named Respondents, concerning counts nine and ten.

    
    

13. Likewise, in discussing counts eleven and twelve, involving Joyce Elifritz, there was no testimony offered concerning the transactions between United Jax Rentals, Inc. and Joyce Elifritz. Therefore, no violation has been established pertaining to counts eleven and twelve.

14. Counts thirteen and fourteen pertain to a transaction between Beverly Morris and United Jax Rentals, Inc. On August 31, 1977 Beverly Morris paid United Jax Rentals, Inc. in the person of one "Larry", an employee of United Jax Rentals, Inc. the amount of $50 to attempt to obtain housing for her. The contract involved in this transaction, which is a second contract drawn between the parties, is found as Petitioner's Exhibit 17, admitted into evidence. This contract entitles her to receive listings from the United Jax Rentals, Inc. for a period of one year. The contract also indicated the method by which Ms. Morris could receive listings from the Respondent United Jax Rentals, Inc.

    Those listings would be given upon request. Sometime in September, 1977 Ms. Morris told the Respondent to cease honoring their contract with her and refund her money. She was unable to contact "Larry", but did speak with Bruce Lammert who advised her that she could see listings under the terms of her contract.

    She went back to United Jax Rentals, Inc. several times to get the money back and wrote a letter, but has never received a refund. She moved into an apartment in Jacksonville, Florida, in October, 1977 after locating this rental on her own.

    
    

15. Upon consideration of the facts and the date of the transaction, Petitioner has failed to show that the Respondent Thomas J. Capobianco as active firm member and as a responsible agent of the Respondent United Jax Rentals, Inc. is guilty of a violation of Section 475.25(1)(a) and (d), Florida Statutes, or that the named Respondents are in violation of Section 475.25 (1)(c) and (d), Florida Statutes, as alleged in counts thirteen and fourteen respectively. The Respondents were not directly involved in the transactions, and an examination of the contract does not demonstrate that Ms. Morris was entitled to any refund of the $50 fee.

    
    

16. Count fifteen pertains to transactions between Jack and Solette Jones and United Jax Rentals, Inc. This involved the payment of a $40 fee on September 12, 1977 in return for guaranteeing to show five prospective rentals which would meet with the requirements expressed by the Joneses. Among those requirements was that the rental property be air conditioned. This requirement is expressed in Petitioner's Exhibit 27, admitted into evidence. The parties discussed possible locations with the representatives of United Jax Rentals, Inc. They were told that one of the houses could not be seen until the next day; however, when they saw the house it was not satisfactory because it was unair- conditioned. The second house that they looked at was out of the price range that they had indicated and also unavailable for six weeks. The next day Ms. Jones called and found that there were no listings available. She called many times after that and tried to get her money back because she had been advised by one "John" that she could receive a refund. "John", who is an employee with United Jax Rentals, Inc., said that he would have to speak to the broker about getting the refund. Mrs. Jones additionally spoke to Rick Levinger, an employee with United Jax Rentals, Inc. Finally, she received a refund after a conversation with Bruce Lammert, who worked for United Jax Rentals, Inc.

    
    

17. The efforts by the employees of United Jax Rentals, Inc. to honor the terms of the contract were not satisfactory to the extent that it is concluded that the Petitioner has shown violations as alleged in count fifteen, on the part of United Jax Rentals, Inc. and Thomas J. Capobianco, such actions having been alleged to be in violation of Section 475.25(1)(a) and (d), Florida Statutes. The violations are as to Section 475.25(1)(a), Florida Statutes, only.

    
    

18. Counts sixteen and seventeen allege violations of Chapter 475, Florida Statutes, pertaining to transactions between United Jax Rentals, Inc. and Howard

    Peake. No testimony was given about the matter of Howard Peake, therefore counts sixteen and seventeen have not been proven.

    
    

19. Counts eighteen and nineteen of the administrative complaint pertain to the transaction between Betty Ross and United Jax Rentals, Inc. Ms. Ross paid $35 to an employee of United Jax Rentals, Inc. whose name was "Rose". The payment of $35 was for purposes of having United Jax Rentals, Inc. locate a residence for Ms. Ross. The contract period was for one month in which the Respondent United Jax Rentals, Inc. was to find a residence for Ms. Ross. The first location address given already had someone living there. The second location on Division Street, Jacksonville, Florida, was provided by United Jax Rentals, Inc. Ms. Ross did not bother to call that address. The next day she saw the address of Division Street in the paper under a separate listing than that of United Jax Rentals, Inc. The Division Street address was not going to be vacant for a month. Consequently, Ms. Ross, on the Saturday following the initial contact with United Jax Rentals, Inc. went and demanded her money back from "Rose". The following week after the Saturday contact, Ms. Ross continued to make inquiry about having her money returned but that refund was never forthcoming from United Jax Rentals, Inc. The contact included discussions with Bruce Lammert. The contract that was signed was not produced in the hearing, nonetheless, the form of contract was one for providing listings, such as has been entered in the case of the named individuals in the previous counts.

    
    

20. Ms. Ross finally moved in with her sister in October, 1977 and subsequently located her own apartment prior to Christmas, 1977. The Respondent United Jax Rentals, Inc. had been given two days to try to locate a residence for Ms. Ross.

    
    

21. After a full consideration of the testimony by Ms. Ross it is concluded that only Rose J. Vines of the Respondent who are alleged to have violated Section 475.25(1)(a) and (d) Florida Statutes, as alleged in count eighteen is guilty of a violation and she only as to Section 475.25(1)(a), Florida Statutes. No showing has been made that the other Respondents did not perform their part of the contract or that they failed to deliver money which was due and owing to Betty Ross, as alleged in count nineteen pertaining to Section 475.25(1)(c) and (d), Florida Statutes.

    
    

22. Count twenty pertains to transactions between Linda Johnson and United Jax Rentals, Inc. which took place on August 21, 1977. The parties entered into an agreement between United Jax Rentals, Inc. and Linda Johnson to locate a residence for Ms. Johnson. Ms. Johnson Paid $40 for the service which would allow her to receive six months worth of listings from the Respondent United Jax Rentals, Inc. A copy of this contract may be found as Petitioner's Exhibit 21, admitted into evidence. Ms. Johnson was of the opinion that the United Jax Rentals, Inc. would provide the services without her having to request anything from them. When no action was forthcoming by United Jax Rentals, Inc. Ms. Johnson cancelled payment of the $40 check that she had given United Jax Rentals, Inc., thus ending the transaction. There was never any attempt on the part of Ms. Johnson to avail herself of listings as provided by her rights under the contract. It is clear that there was some misunderstanding between Ms. Johnson and the representative of United Jax Rentals, Inc. on the question of what rights she did have for the payment of her $40 fee, be those rights; one, a right to receive listings; or two, to have United Jax Rentals, Inc. make the contacts under the listings. Nonetheless, there is no indication that Thomas J. Capobianco, as active firm member, or United Jax Rentals, Inc. through the person of their active firm member, were in violation of Section 475.25(1)(a) and (d) Florida Statutes.

23. Count twenty-one involves the October 3, 1977 transaction between Steve Mercer and United Jax Rentals, Inc. Mercer paid $40 for obtaining listings from United Jax Rentals, Inc. He was told by an employee of United Jax Rentals, Inc. whose name is "Dave" that he would be shown listings if he would wait in the office of United Jax Rentals, Inc. until "Dave" had concluded other business. Mr. Mercer did not wait and took three listings that were provided him to pursue his efforts at finding a residence. The first location was at a number that did not exist; the second location was not acceptable the third location was acceptable but it had already been rented. He talked to Bruce Lammert about the matter and asked that his money be returned. Mr. Mercer never received his money, he never was given the address of the location that first attracted him when he had seen it in the United Jax Rentals, Inc. advertisement in the paper and he was never given the opportunity to speak to the manager who might have given him a refund. The factual situation involving Steve Mercer, when considered in view of the other facts and cases reported in this recommended order, leads to the conclusion that Thomas J. Capobianco as active firm member of United Jax Rentals, Inc. and United Jax Rentals, Inc. through Mr. Capobianco are both guilty of culpable negligence as set out in Section 475.25(1)(a), Florida Statutes, no other violation of Section 475.25(1)(a), Florida Statutes, has been shown. No violation of Section 475.25(1)(d), Florida Statutes, has been shown.

    
    

24. The facts in the Mercer transaction do not show a violation on the part of United Jax Rentals, Inc. and Thomas J. Capobianco as alleged in count twenty-two. There has been no showing under terms of the contract document or by legal determination that Mercer was entitled to a refund of the $40 fee that he had paid for the services, therefore there is no violation of Section 475.25(1)(c) and (d), Florida Statutes.

    
    

25. Count twenty-three involves the transaction of August 15, 1977 between William Machalski and United Jax Rentals, Inc. This involved the efforts by United Jax Rentals, Inc. to obtain a residence location for Machalski who had paid them $40 for such service. The terms and conditions of the agreement are found in Petitioner's Exhibit 26, admitted into evidence. The firm member who had discussed this transaction and service with Machalski was a person named "Larry". Six addresses were checked by Mr. Machalski and those addresses had either been rented or were not available for a period of time, or were unfit. Mr. Machalski went back to the agency and talked to a person named "John". He also spoke later with a person named "Rick". Attempts were made to reach Mr. Capobianco but the employees in the office did not provide his telephone number. The attempts to reach Mr. Capobianco were made on the part of Clara Mitchell, the sister of Mr. Machalski. During this period, members of United Jax Rentals, Inc. indicated to Machalski and his sister that efforts would be made to get new listings. However, shortly thereafter, Mr. Machalski located a residence through another broker unrelated to United Jax Rentals, Inc.

    
    

26. Although the employees of United Jax Rentals, Inc. have been aware of the development and problems with this service that was being offered to Mr. Machalski, when this fact pattern is considered in view of the facts and circumstances outlined in the recommended order herein, it does not demonstrate that United Jax Rentals, Inc. in the person of its active broker, Mr. Thomas J. Capobianco or other officers or directors of the corporation were, at the time of the occurrence, aware of the problem, or should have been aware of the problems, such that they would be in violation of Section 475.25(1)(a) and (d), Florida Statutes.

27. Moreover, no showing has been made as alleged in count twenty-four that the contract conditions under which Mr. Machalski was being given service or by any declaration by a court of competent jurisdiction that the $40 fee should have been returned to Mr. Machalski as alleged. Consequently, no violation of Section 475.25(1)(c) and (d), Florida Statutes, has been shown.

    
    

28. The Petitioner's Composite Exhibits 22, 23, 24 and 25 are actual or copies of newspaper advertisements placed by United Jax Rentals, Inc. in October and November, 1977. As shown in Petitioner's Exhibit 25, some of the advertising placed with the Florida Times Union, a paper of general circulation in Jacksonville, Florida, listed the general location and description of property, in terms of the accommodations and gave the phone number and listed the word "Broker" only, with no name. Petitioner's Exhibit 22, admitted into evidence contained a listing in the same newspaper with the indication that the registered name was United Jax Rental Broker, Inc., not United Jax Rentals, Inc., showing the same telephone number as was shown with the advertising in Petitioner's Exhibit 25 that contained the word "Broker". The same exhibits contained advertisements in newspapers in which landlords were solicited and given a telephone number which was the number of United Jax Rentals, Inc., where again the name United Jax Rentals, Inc. is missing. This form of advertising spoken of was in violation of Section 475.25(1)(b), Florida Statutes, and those which did not list the broker's name were in violation of Rule 21V-10.10, Florida Administrative Code, as implemented by Section 475.25(1)(d), Florida Statutes.

    
    

29. Count twenty-six pertains to allegations that various employees within the firm of United Jax Rentals, Inc., were guilty of operating as real estate salesmen who are not holders of valid, current registration certificates as salesmen, held with the Florida Real Estate Commission. There was no testimony to that effect that they were not the holders of valid, current registration certificates. Consequently, no violation of Section 475.42(1)(c), Florida Statutes, has been shown.

    
    

30. County twenty-seven alleges that United Jax Rentals, Inc., Thomas J. Capobianco, Bruce K. Lammert, Richard L. Levinger, Deborah K. Parnell and Rose

    J. Vines are guilty of violations of Section 475.25(3), Florida Statutes. After considering the testimony in this cause it is determined that the necessary proof has been shown to find United Jax Rentals, Inc., Thomas J. Capobianco and Richard L. Levinger in violation of Section 475.25(3), Florida Statutes. There is insufficient showing to establish such a violation on the part of Bruce K. Lammert, Deborah K. Parnell and Rose J. Vines.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction in this cause.

    
    

32. For the reasons as set forth in the findings of fact in this recommended order, no violation of counts 1 - 4, 6, 9 - 14, 16, 17, 18 (with the exception of Rose J. Vines), 19, 20, 22 - 24 and 26 as alleged in the administrative complaint is shown and no violation is established on the part of the Respondents Bruce K. Lammert, Deborah K. Parnell and Rose J. Vines as alleged in count 27.

    
    

33. For the reasons as set forth in the findings of fact, count five of this recommended order, United Jax Rentals, Inc. and Thomas J. Capobianco are in

    violation of Section 475.25(1)(a), Florida Statutes, but are not in violation of Section 475.25(1)(d), Florida Statutes.

    
    

34. For the reasons as set forth in the findings of fact, count seven of this recommended order, the Respondent Deborah K. Parnell is guilty of a violation of Section 475.42(1)(b), Florida Statutes, and is subject to the penalties established by Section 475.25(1)(d), Florida Statutes.

    
    

35. For the reasons as set forth in the findings of fact of this recommended order, the Respondents United Jax Rentals, Inc. and Thomas J. Capobianco, involved in count eight, are guilty of a violation of Section 475.42(1)(c), Florida Statutes, and are subject to the penalties established by Section 475.25(1)(d), Florida Statutes.

    
    

36. For the reasons as set forth in the findings of fact, count fifteen of this recommended order, the Respondents United Jax Rentals, Inc. and Thomas J. Capobianco, are guilty of a violation of Section 475.25(1)(a), Florida Statutes, but are not in violation of Section 475.25(1)(d), Florida Statutes.

    
    

37. For the reasons as set forth in the findings of fact, count eighteen of this recommended order, the Respondent, Rose J. Vines, is guilty of a violation of Section 475.25(1)(a), Florida Statutes, but is not in violation of Section 475.25(1)(d) Florida Statutes.

    
    

38. For the reasons as set forth in the findings of fact, count twenty-one of this recommended order, the Respondents United Jax Rentals, Inc. and Thomas

    J. Capobianco are guilty of a violation of Section 475.25(1)(a), Florida Statutes, only.

    
    

39. For the reasons as set forth in the findings of fact of this recommended order, Respondents United Jax Rentals, Inc. and Thomas J. Capobianco are guilty of violations of Section 475.25(1)(b), Florida Statutes, and Rule

    21V-10.10, Florida Administrative Code, as implemented by Section 475.25(1)(d), Florida Statutes, as alleged in count twenty-five.

    
    

40. For the reasons as set forth in the findings of fact, count twenty- seven of this recommended order, the Respondents United Jax Rentals, Inc., Thomas J. Capobianco and Richard L. Levinger are in violation of Section 475.25(3), Florida Statutes.

RECOMMENDATION

It is recommended that the applicable licenses of United Jax Rentals, Inc.; Thomas J. Capobianco; Richard L. Levinger and Rose J. Vines be suspended for a period of six months. It is recommended that Deborah K. Parnell be given a letter of reprimand. (This recommendation is in keeping with the offer that has been entertained by the Florida Real Estate Commission by agreement of the parties). Finally, it is recommended that the action against Bruce K. Lammert be dismissed.

DONE AND ENTERED this 1st day of June, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Kenneth M. Meer, Esquire Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

John S. Winnie, Esquire Post Office Box 682 Gainesville, Florida 32602

Richard L. Levinger

2243 Southeast 10th Street Pompano Beach, Florida 33062

Rose J. Vines

c/o United Jax Rentals, Inc. 1642 North Main Street Jacksonville, Florida 32206

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DIVISION OF OCCUPATIONS

DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION CD16153

Plaintiff,

vs. DOAH 77-2171

PROGRESS DOCKET NO. 3268

UNITED JAX RENTALS, INC., DUVAL COUNTY THOMAS J. CAPOBIANCO,

BRUCE K. LAMMERT, RICHARD L. LEVINGER, DEBORAH K. PARNELL

Defendants.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission, held at the Executive Headquarters in Orlando, Florida on May 18, 1978,

PRESENT: Maggie S. Lassetter, Chairman Levie D. Smith, Jr., Vice Chairman Arthur N. Hamel, Member

APPEARANCES: Kenneth M. Meer

Attorney for the Plaintiff

This matter came on to be heard upon the Plaintiff's Administrative Complaint, Defendants' Answer, the Proposed Settlement submitted by John Winnie, Attorney for Defendant Deborah Parnell, and upon the oral statements presented by Plaintiff's counsel; and the Commission, after reviewing said statements, hearing the arguments of Counsel for the Plaintiff, finds:

1.

That, according to the records of the Commission, Defendant Deborah K. Parnell is a registered real estate salesman with Gemco Realty Corp., 5800 NW 2nd Avenue, Boca Raton, Florida 33431. At the time of the acts alleged in the Administrative Complaint, Defendant Parnell was registered with Rental Finders, Inc. in Ft. Lauderdale, Florida. Defendant Parnell worked for a short time for United Jax Rentals, Inc. of Jacksonville, Florida, even though she was not registered with that office.

2.

That Defendant Deborah K. Parnell has admitted all the material allegations contained in Count Seven of the Administrative Complaint; and the Commission finds that the material allegations in Count Seven of the Administrative Complaint are true and, by reason thereof, Defendant Deborah K. Parnell is in violation of Subsection 475.42(1)(b), Florida Statutes, and therefore also in violation of Subsection 475.25(1)(d), Florida Statutes.

3.

That Defendant Deborah K. Parnell has agreed to enter a plea of guilty to the charges contained in Count Seven of the Administrative Complaint, in exchange for a private reprimand by the Florida Real Estate Commission, and has shown mitigating circumstances to satisfy the Commission that the matter is now moot and that such penalty will be appropriate and just.

IT IS THEREFORE ORDERED that Defendant Deborah K. Parnell be, and she is hereby, adjudged guilty of operating as a salesman for a person not registered as her employer, in violation of Subsection 475.42(1)(b), Florida Statutes, and therefore also in violation of Subsection 475.25(1)(d), Florida Statutes, as charged in Count Seven of the Administrative Complaint.

IT IS FURTHER ORDERED that, for such violation, Defendant Deborah K. Parnell be, and she is hereby, privately reprimanded, and that such disciplinary action shall not be published.

DONE AND ORDERED at Orlando, Florida this 22 day of May 1978.

Chairman

Vice Chairman

Member

I CERTIFY that I mailed a copy of the foregoing Final Order to Deborah K. Parnell, c/o Gemco Realty Corp., 5800 NW 2nd Avenue, Boca Raton, Florida 33431; and to her attorney, John Winnie, Post Office Box 682, Gainesville, Florida 32602, by United States registered mail this 22nd day of May, 1978.

Executive Director

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SECOND AGENCY FINAL ORDER

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION,

Plaintiff,

vs. PROGRESS DOCKET NO. 3268

DUVAL COUNTY

UNITED JAX RENTALS, INC. DOAH 77-2171 THOMAS J. CAPOBIANCO RICHARD L.

LEVINGER ROSE J. VINES, and BRUCE K. LAMMERT,

Defendants.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Orlando, Florida, on July 26, 1978,

Present: Maggie S. Lassetter, Chairman Levie D. Smith, Jr., Vice Chairman Arthur N. Hamel, Member

Appearances: Kenneth M. Meer, Attorney for Plaintiff John Winnie, Attorney for Defendants

This matter came on for Final Order upon the Hearing Officer's Recommended Order, the Plaintiff's Exceptions thereto, and the Exceptions filed for Defendants Capobianco and Vines, and upon consideration thereof, together with a review of the complete record, and oral argument of attorney for the Plaintiff and attorney for the Defendants, the Commission, being fully advised in the premises, finds:

1.

That Defendant United Jax Rentals, Inc. is a registered real estate broker, with its last known business address registered with the Commission as 1642 North Main Street, Jacksonville, Florida 32206. All certified mail from the Commission addressed to this Defendant has been returned undelivered.

2.

That Defendant Thomas J. Capobianco was a registered real estate broker and active firm member of United Jax Rentals, Inc., Defendant; License No. 0169690, 1642 North Main Street, Jacksonville, Florida 32206; Capobianco License No.

0169691; Defendant Thomas J. Capobianco is presently registered with the

Commission as a non-active broker, with a last home address as 151 N. Orlando Avenue - 240, Winter Park, Florida 32789.

3.

That Defendant Richard L. Levinger is a registered real estate salesman, License No. 0175791, now in limbo due to non-renewal, whose last known address registered with the Commission, as care of United Jax Rentals, Inc.; or his home address at 2243 SE 10th Street, Pompano Beach, Florida 33062. All certified mail addressed to Defendant Levinger in care of United Jax Rentals, Inc. and at the last known home address by the Commission has been returned undelivered.

4.

That Defendant Rose J. Vines is a registered real estate salesman, whose address is registered with the Commission as c/o Gator Rentals, Inc., 113 NE 16th Avenue, Gainesville, Florida 32601. Her last known home address is 9481 Joloru Drive, Jacksonville, Florida 32221, but all recent certified mail from the Commission addressed to her at that address has been returned undelivered.

5.

That Defendant Bruce K. Lammert is a registered real estate salesman, whose address is registered with the Commission as c/o United Jax Rentals, Inc. All recent certified mail from the Commission addressed to him at that address has been returned undelivered. However, he has informed the Commission that his last known home address at 7135 Balboa Road, Jacksonville, Florida 32217 is still correct.

6.

That the Commission accepts paragraphs 1 and 3 of the Plaintiff's Exceptions to the Hearing Officer's Recommended Order and rejects paragraphs 2,

4 and 5.

7.

That the Commission rejects the Defendants' Exceptions to the Hearing Officer's Recommended order.

8.

That the Commission accepts Use Hearing officer's Findings of Fact and Conclusions of Law, but rejects the Hearing Officer's penalty of a 6-month suspension for Defendants United Jax Rentals, Inc., Thomas J. Capobianco and Richard L. Levinger in that said penalty is unduly mild for the gravity and variety of the offenses involved.

IT IS THEREFORE ORDERED:

1. That the Plaintiff's Exceptions to the Hearing Officer's Recommended Order as relating to the recommended penalty are hereby sustained.

   
   

2. That the Defendants' Exception to the Hearing Officer's Recommended Order are hereby denied.

3. That the Hearing Officer's Findings of Fact and Conclusions of Law are hereby adopted by the Commission.

   
   

4. That the Hearing Officer's Recommended penalty of a 6-month suspension relating to Defendants United Jax Rental, Inc., Capobianco and Levinger are hereby rejected by the Commission for the reasons as stated in this Order and in the Plaintiff's Exceptions as filed.

   
   

5. That the Defendants United Jax Rentals, Inc., Thomas J. Capobianco and Richard L. Levinger be, and they are hereby, adjudged guilty of culpable negligence, thereby violating Subsection 475.25(1)(a), Florida Statutes, as charged in Counts Five, Fifteen and Twenty-one of the Administrative Complaint.

   
   

   That Defendants United Jax Rentals, Inc., Capobianco and Levinger are also adjudged guilty of violating Subsection 475.42(1)(c), Florida Statutes, and therefore of violating Subsection 475.25(1)(d), Florida Statutes, as charged in Count Eight of the Administrative Complaint.

   
   

   That Defendants United Jax Rentals, Inc., Capobianco and Levinger are also adjudged guilty of violating Subsection 475.25(1)(b), Florida Statutes, Rule 21V-10.10, Florida Administrative Code, and Subsection 475.25(1)(d), Florida Statutes, as charged in Count Twenty-five of the Administrative Complaint.

   
   

   That Defendants United Jax Rentals, Inc., Capobianco and Levinger are also adjudged guilty of violating Subsection 475.25(3), Florida Statutes, as charged in Count Twenty-seven of the Administrative Complaint.

   
   

6. That Defendant Rose J. Vines be, and she is hereby, adjudged guilty of violating Subsection 475.25(1)(a), Florida Statutes, as charged in Count Eighteen in the Administrative Complaint.

   
   

7. That the Administrative Complaint against Defendant Bruce K. Lammert be, and it is hereby, dismissed.

   
   

8. That for such violations of which they were adjudged guilty, the registrations of Defendants United Jax Rentals, Inc., Thomas J Capobianco and Richard L. Levinger be, and the ace are hereby, suspended for a period of one year. That for such violation of which she was adjudged guilty, the registration of Defendant Rose J. Vines be, and it is hereby, suspended for a period of six months; said suspensions to become effective upon the effective date of this order as provided by law.

   
   

9. That the above Defendants who are adjudged guilty shall immediately surrender their certificates of registration as broker or salesman to the Florida Real Estate Commission at its Executive Headquarters in Orlando, Florida, by return mail.

DONE AND ORDERED at Orlando, Florida, this 28th day of July 1978.

Maggie S. Lassetter Chairman

Levie D. Smith, Jr. Vice Chairman

Arthur N. Hamel Member

I CERTIFY that a copy of the foregoing Final Order was mailed to John S. Winnie, Esquire, P. O. Box 682, Gainesville, Florida 32602, Attorney for Defendants; and to Richard L. Levinger, 2243 SE 10th St., Pompano Beach, Florida 33062, by United States certified mail this 16th day of August, 1978.

Executive Director

NOTICE TO DEFENDANTS:

This Order shall become effective upon the 15 day of Sept. 1978. You have a right to review by an appellate court if you desire.

Docket for Case No: 77-002171

Orders for Case No: 77-002171