STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF REAL ESTATE, )

)

Petitioner, )

)

v. ) CASE NO. 79-1386

)

JERALNE C. BURT, )

)

Respondent. )

)

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 case on 20 September 1979 at Tampa, Florida.

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Staff Attorney

400 West Robinson Avenue Orlando, Florida 32802

For Respondent: Jeralne C. Burt

816 North Betty Lane Clearwater, Florida 33515

By Administrative Complaint filed 18 June 1979 the Florida Real Estate Commission, now the Florida Board of Real Estate, Petitioner, seeks to suspend the registration of Jeralne C. Burt, Respondent, and Respondent's right to practice thereunder. As grounds therefor it is alleged that Respondent signed as a witness to a signature she had not actually witnessed, and that she introduced Barbara Rogers at a closing as Louise Rogers and Barbara Rogers executed all closing documents in the name of Louise Rogers. These acts of Respondent are alleged to constitute fraud, misrepresentation, false promises, false pretenses, dishonest dealing, culpable negligence and breach of trust in a business transaction in violation of Section l475.25(1)(a), Florida Statutes.

Two witnesses, including Respondent, were called and two exhibits were admitted into evidence. There was no dispute regarding the facts here involved.

FINDINGS OF FACT

1. Jeralne C. Burt is registered with the Florida Board of Real Estate as a salesperson and was so registered at all times here involved.

   
   

2. In the fall of 1977, Barbara Rogers came to Respondent's home seeking to purchase residential real estate and was shown several houses by Respondent. One of these houses she agreed to purchase.

3. When asked how she wanted the contract made out, Barbara Rogers said make the contract in the name of Louise Rogers, her sister.

   
   

4. The contract to purchase was prepared and given to Barbara Rogers to have executed. When this contract (Exhibit 1) was returned to Respondent it was signed Louise Rogers as the buyer, but the signature was not witnessed. After being assured that Louise had signed the contract to purchase, Respondent signed as a witness to the previously unwitnessed signature of Louise Rogers. At the time this offer was executed by the buyer, Respondent understood that Barbara Rogers was putting up the money for the cash required over the mortgage.

   
   

5. Thereafter, Louise Rogers proceeded to the bank where the necessary documents were executed to qualify for an FHA morgage on the property.

   
   

6. At the designated closing date Respondent drove to Barbara Rogers' house where Barbara was picked up and they went to the place Louise worked to pick her up. Louise came out to the car and told Respondent that she couldn't get off work and that Barbara could sign the papers for her. When Respondent said she thought Louise should come to the closing to sign, Louise replied that she and her sister signed each other's names all the time and that it was all riht for Barbara to execute the papers.

   
   

7. Respondent and Barbara Rogers proceeded to the closing. No one inquired if Barbara Rogers was Louise Rogers, nor was she ever introduced as Louise Rogers. At the closing Barbara Rogers signed Louise Rogers' name on the various documents presented for signature.

   
   

8. Due to the house requiring some repairs the closing was kept in escrow for approximately one week to ten days.

   
   

9. During this escrow period the mortgage processor at the Barnett Bank, who had processed the application of Louise Rogers, received a phone call from a woman identifying herself as Louise Rogers inquiring when the closing on the house was to take place. When Louise Rogers said she had not executed any papers for the closing the bank officials quickly re-assembled the parties and this time all documents were executed by the real Louise Rogers.

   
   

10. Although Respondent realized Louise Rogers should have signed the documents at closing, because of Louise's insistence that Barbara could sign for her and Respondent's previous experience of signing her grandmother's name for her the past two years of her grandmother's life, Respondent assumed the authorization for Barbara to sign Louise's name had been given.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

12. Section 475.25(1)(a), Florida Statutes provides in pertinent part that the registration of a registrant may be suspended for a period not exceeding two years upon a finding of facts showing that the registrant has:

    
    

    Been guilty of fraud, misrepresentation concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence or breach of trust in

    any business transaction. . . . .

13. Here Respondent was charged with actively misrepresenting that Barbara Rogers was Louise Rogers. The evidence will not support a finding that Respondent introduced Barbara Rogers as Louise Rogers at the closing.

    
    

14. The evidence is clear that Respondent signed the offer to purchase as a witness to a signature she did not in fact witness. However there is no evidence that the signature is not that of Louise Rogers or that this document was ever accepted by the seller.

    
    

15. It clearly appears that Respondent, at the time of the closing, was unaware that the authorization for an agent to sign for his principal requires the same formality as the document to be signed. It further appears that Respondent was unaware that principals, under certain circumstances, may ratify otherwise unauthorized acts of agents. This lack of understanding of the law of agency does not constitute fraud or misrepresentation by Respondent.

    
    

16. Real estate salespersons are required to know more about the law of agency than the average person who seldom acts as agent for a principal. Failure to posses or exercise such knowledge constitutes negligence on the part of the sales person.

    
    

17. Likewise ever registrant should know that witnesses to signatures are acknowledging that they saw the subscribing party sign the document. Signing as a witness to a signature not actually witnessed or signed in the presence of the witness constitutes misrepresentation.

    
    

18. From the foregoing it is concluded that Respondent was guilty of misrepresentation in signing as witness to a signature not subscribed in her presence and that she was negligent in not advising the parties at the closing that Barbara Rogers was not Louise Rogers as she purported to be when signing Louise Rogers' name to the closing documents: It is further concluded that Respondent did not intend to misrepresent, defraud or conceal information during the business transaction, and that her acts resulted from lack of knowledge and not from willfulness. It is therefore

RECOMMENDED that Jeralne C. Burt be issued a reprimand.

ENTERED this 8th day of October, 1979, in Tallahassee, Florida.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Staff Attorney

Board of Real Estate

P.O. Box 1900

Orlando, Florida 32802

K. N. Ayers Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

Jeralne C. Burt

815 North Betty Lane Clearwater, Florida 33515

Docket for Case No: 79-001386

Orders for Case No: 79-001386