STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

An Agency of the State of Florida, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1090

) Progress Docket 3314

) Duval County, Florida CECIL V. CANEER t/a CANEER REALTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at Room 205, Building "B", 6501 Arlington Expressway, Jacksonville, Florida, at 10:15 A.M., October 23, 1978.

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32802

For Respondent: David C. Goodman, Esquire

1387 Cassat Avenue

Jacksonville, Florida 32205 ISSUE

Whether or not the action by the Respondent, Cecil V. Cancer, of placing a lien against the real property of Thomas and Phyllis J. Quinn, under the facts as alleged, constitutes violations of Subsections 475.25(1)(a) and (d) and Subsection 475.42(1)(j) Florida Statutes.

FINDINGS OF FACT

1. This cause came on for consideration based upon the Administrative Complaint filed by the Petitioner, Florida Real Estate Commission vs. Cecil V. Cancer t/a Cancer Realty, Respondent. The Respondent has opposed the Administrative Complaint and demanded a formal hearing pursuant to Subsection 120.57(1), Florida Statutes.

   
   

2. The Florida Real Estate Commission is an agency of the State of Florida which has as its primary function the regulation of certain licensees who hold various registrations with the Petitioner. The Respondent, Cecil V. Caneer t/a Caneer Realty, holds License No. 0012862, under the authority of the Florida Real Estate Commission. This license entitles the Respondent to act as a real

   estate broker in the State of Florida. At all times pertinent to the Administrative Complaint, the Respondent has been so licensed.

   
   

3. On August 12, 1974, the Respondent entered into a management agreement with James Thomas Quinn and his wife, Phyllis J. Quinn, to manage certain property in Jacksonville, Duval County, Florida, located at 5639 Minocqua Street. The terms and conditions of that management agreement may be found in the Petitioner's Exhibit No. 3 admitted into evidence. This management agreement entitled the Respondent to receive certain brokerage fees for his services to the Quinns in leasing, collecting rents, maintaining the property, entering into service contracts, effecting certain repairs and making disbursements from the owners' proceeds and with a portion of the rents to be deposited for purposes of satisfying the mortgage payments owed on the property. In addition, the Respondent was responsible for making periodic itemized statements of receipts, expenses, charges and accruals, and to remit the net proceeds to the owners.

   
   

4. The Quinns, through the management agreement, agreed to pay the various percentages set forth in the brokerage fee arrangement and to assume the full responsibility for the payment of expenses and obligations incurred in connection with the exercise of the Respondent's duties under the management agreement.

   
   

5. The owners left the State of Florida at a time when the management agreement was still in force and effect. In November and December, 1976, the property was in a state of disarray, and a number of items needed to be repaired. Under the terms and conditions of the management agreement and with the written permission of Mrs. Quinn, dated December 20, 1976, the Respondent made a number of repairs to the property. The letter spoken of may be found as the Petitioner's Exhibit No. 4 admitted into evidence. The Respondent also made two mortgage payments in behalf of the Quinns for the months of December, 1976, and January, 1977.

   
   

6. An itemized statement of the monies expended by the Respondent, less the security deposit of the tenants who were living in the rental property in late 1976, may be found in the Petitioner's Exhibit No. 2 admitted into evidence.

   
   

7. The Respondent requested the Quinns to reimburse him for the money that he had paid in making repairs and for the mortgage payments made on the property. The Quinns refused to pay the Respondent, and acting on the advice of his attorney, the Respondent filed a claim of lien against the subject real property at 5639 Minocqua Street, Jacksonville, Duval County, Florida, which is the property of the Quinns.

   
   

8. The Claim of Lien may be found as the Petitioner's Exhibit No. 1 admitted into evidence. It sets out that the Respondent spent $220.58 for certain repairs and payments for other repairs, with the total value of materials and labor being $441.79. In fact, the $220.58 was spent for the mortgage payments on the property for the months of December, 1976, and January, 1977. The balance of the $441.79 was for the items of repairs as itemized in Petitioner's Exhibit No. 2, less the security deposit spoken of. At the time the lien was placed, the Respondent was also of the persuasion that the Quinns intended to sell the property.

   
   

9. Under these facts as shown, the Petitioner, Florida Real Estate Commission, is convinced that the Respondent has violated certain laws

   pertaining to his licensure by the Florida Real Estate Commission.

   Specifically, the Petitioner feels that the act by the Respondent of placing the lien upon the public records of Duval County, Florida, against the property of the Quinns, was a utilization of a document which purports to affect the title of, or encumber, the real property of the Quinns and was for the purpose of collecting a commission or to coerce the payment of monies in violation of Subsection 475.42(1)(j), Florida Statutes. The Petitioner believes that these acts constitute a violation of Subsection 475.25(1)(d), Florida Statutes, and finally, that for these acts the Respondent is guilty of dishonest dealing, in violation of Subsection 475.25(1)(a), Florida Statutes.

   
   

10. The lien in question does purport to affect the title of and encumber the real property of the Quinns, and it has been placed by the Respondent, a real estate broker licensed by the Florida Real Estate Commission. It has been placed in the public records of Duval County, Florida. However, it was not placed for the purpose of collecting a commission or to coerce the payment of money to the Respondent. The Respondent was acting under the express authority of the management agreement and letter of instruction of December 20, 1976, from Mrs. Quinn, and pursued his legal remedies by filing the lien, when it was determined that the Quinns did not intend to reimburse him for the authorized expenditures and mortgage payments on the rental property.

    
    

11. Likewise, there has been no showing that the Respondent is guilty of dishonest dealings in violation of Subsection 475.25(1)(a), Florida Statutes.

    
    

12. When the alleged violation of Subsection 475.42(1)(d) Florida Statutes, failed, the allegation under Subsection 475.25(1)(d) becomes irrelevant, due to the fact that the purpose of Subsection 475.25(1)(d), Florida Statutes, is to implement the penalties found in Section 475.25, Florida Statutes, in the event of any violation of provisions of Chapter 475, Florida Statutes, other than Section 475.25, Florida Statutes violations.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. It is concluded that as a matter of law based upon a full consideration of the facts herein, that the Respondent, Cecil V. Caneer, is not guilty of a violation of Subsection 475.42(1)(j), Florida Statutes.

    
    

15. It is concluded that as a matter of law based upon a full consideration of the facts herein, that the Respondent, Cecil V. Caneer, is not guilty of a violation of Subsection 475.25(1)(a), Florida Statutes.

RECOMMENDATION

It is recommended that the Petitioner, Florida Real Estate Commission, dismiss the Administrative Complaint against the Respondent, Cecil V. Caneer t/a Caneer Realty, and allow the Respondent to go forth without further necessity to answer to those allegations.

DONE and ENTERED this 22nd day of November, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Florida Real Estate Commission Post Office Box 1900

400 West Robinson Street Orlando, Florida 32802

David C. Goodman, Esquire 1387 Cassat Avenue

Jacksonville, Florida 32205

Docket for Case No: 78-001090

Orders for Case No: 78-001090