STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2001

) (0000320) RICHARD S. TESTUT, A.C. KIBLER, )

BEATRIX MEYER-BURGHAGEN, FREEDOM ) OF CHOICE REALTY, INC., and ) FLORIDA REAL ESTATE CLINICS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a public hearing in this case on December 12, 1980, in Fort Lauderdale, Florida. The parties were represented by:

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondents: Alan H. Konigsburg, Esquire

1700 East Las Olas Boulevard, Suite 202 Fort Lauderdale, Florida 33301

Richard S. Testut, in pro per 4180 Coral Springs Drive Coral, Springs, Florida 33065

By Administrative Complaint issued on September 22, 1980, the Petitioner, Department of Professional Regulation, Board of Real Estate, seeks to revoke or suspend the real estate licenses held by the Respondents, or take other disciplinary action against them. This Complaint alleges that the Respondents engaged in actions which constitute fraud, misrepresentation, concealment, false promises, culpable negligence or breach of trust, in a conspiracy among them, in violation of Section 475.25(1)(b), Florida Statutes.

Specifically, the Complaint alleges that the Respondents aided, assisted and conspired with one another and with an individual named Stephen E. Thomas, Jr., to obtain money from persons holding inactive real estate licenses by making false and misleading statements such as (1) all inactive licenses would be lost on July 1, 1980, unless the holder successfully completed a continuing

education course and passed a state examination; (2) the Board of Real Estate failed to inform licensees of the mandatory continuing education requirement for renewal of licenses; (3) the fees collected from inactive licensees amount to 30 percent of the total revenue collected pursuant to Chapter 475, Florida Statutes; and (4) inactive licensees by joining and paying dues to an organization named Florida Real Estate Council, Inc., could obtain placement with Respondent Freedom of Choice Realty, Inc., and thereby earn commissions and enjoy other financial benefits as active licensees. It is further alleged that "Respondent Freedom of Choice Realty, Inc., has not actively employed any real estate licensees to list or offer for sale real property of others for compensation nor performed any real estate brokerage services whatsoever in this State."

FINDINGS OF FACT

1. Respondent Freedom of Choice Realty, Inc., is a registered corporate real estate broker holding license number C00213882. Respondents Richard S. Testut, A. C. Kibler and Beatrix Meyer-Burghagen are registered real estate brokers holding licenses numbered 0180949, 0047414 and 0145168, respectively, and these individuals are officers of Respondent Freedom of Choice Realty, Inc. In addition, Beatrix Meyer-Burghagen holds a license to operate real estate school named Florida Real Estate Clinics, Inc., which is also a Respondent herein.

   
   

2. In support of the allegations in its Administrative Complaint the Petitioner presented testimony and evidence from five witnesses. The first, Stephen E. Thomas, Jr., is an officer of Respondent, Freedom of Choice Realty, Inc., and he is also an officer of Florida Real Estate Council, Inc. Neither Mr. Thomas nor Florida Real Estate Council, Inc., hold any real estate licenses, and they are not parties to this proceeding.

   
   

3. Florida Real Estate Council, Inc., was formed to offer licensed salespeople an opportunity to belong to their own association. During the month of April, 1980, this organization sponsored a series of public meetings to which inactive licensees were invited by means of a flier which was mailed to approximately 21,000 of them in South Florida. The purpose of these meetings was to inform inactive real estate salespeople concerning the status of their licenses after June of 1980. Generally, these fliers conveyed the impression that inactive licenses had been placed in jeopardy by a change in the real estate law, and the information conveyed at the public meetings reiterated the existence of an apparent threat to these licenses.

   
   

4. Two other witness presented by the petitioner established the content of one of the public meetings held by Florida Real Estate Council, Inc., in April of 1980. The remaining two witnesses were presented to clarify the actual changes that were made in the real estate law on July 1, 1980. There was no truth or substance to the information conveyed to over 21,000 inactive licensees concerning the status of these licenses as a result of statutory changes made in 1980. However, this information was not established to be more than an inaccurate lay interpretation of the Florida Statutes by Stephen E. Thomas, Jr., or by Florida Real Estate Council, Inc.

   
   

5. In summary, the Petitioner's evidence fails to prove a conspiracy among the Respondents as alleged in the Administrative Complaint. Except for the fact that Stephen E. Thomas, Jr., is an officer of both Florida Real Estate Council, Inc., and Respondent Freedom of Choice Realty, Inc., insufficient evidence was presented to establish a connection between these corporations. Any false and

   misleading statements or information disseminated at the public meetings and by flier was the action of Mr. Thomas, individually, and/or Florida Real Estate Council, Inc., neither of whom are subject to the jurisdiction of the Board of Real Estate, and neither of whom are parties to this proceeding. The evidence does not support a finding that any of the Respondents conspired together for the purpose of distributing false information to real estate license holders, as alleged. Nor was there substantial, competent evidence that the Respondents, or any of them received financial benefit either from the flier or the public meetings.

   
   

6. Finally, based upon the testimony of Petitioner's witness, Stephen E. Thomas, Jr., and evidence from the only Respondent who testified, Richard S. Testut, Freedom of Choice Realty, Inc., attempted to operate a real estate brokerage business beginning on July 1, 1980. The initiation on July 2, 1980, of the investigation which resulted in the filing of the administrative Complaint under consideration here adversely affected its employees, as well as potential employees, to such an extent that no sales or commissions could be earned. However, this company did have a staff, listings, sales meetings, literature, and advertised to recruit salespeople. Thus, the Petitioner's contention that this corporation neither actively employed any licensees, or performed any brokerage services, was not proven.

   
   

   CONCLUSIONS OF LAW

   
   

7. The thrust of the Administrative Complaint herein is based on Section 475.25(1)(b), Florida Statutes, which authorizes the Board of Real estate to suspend of revoke a real estate license, or impose a fine, if it finds that a licensee has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction. The allegations against the Respondents in this proceeding, however, are not supported by substantial, competent evidence; thus, the Administrative Complaint should be dismissed.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed in this case be

dismissed.

THIS RECOMMENDED ORDER entered on this 18 day of February, 1981.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18 day of February, 1981.

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Alan H. Konigsburg, Esquire 1700 East Las Olas Boulevard Suite 202

Fort Lauderdale, Florida 33301

Mr. Richard S. Testut 4180 Coral Springs Drive

Coral Springs, Florida 33035

Docket for Case No: 80-002001

Orders for Case No: 80-002001