STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2479

)

BERNARD A. SANTANIELLO, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Port Charlotte, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R.

1. Carpenter, on March 11, 1982. The parties were represented by: APPEARANCES

   For Petitioner: Salvatore A. Carpino, Esquire

   Department of Professional Regulation

   130 North Monroe Street Tallahassee, Florida 32301

   
   

   For Respondent: Robert J. Norton, Esquire

   Suite 408, First National Bank Building Punta Gorda, Florida 33950

   
   

   This matter arose on petitioner's administrative complaint alleging that Respondent violated Subsections 475.42 (1)(j) and 475.25(1)(a), Florida Statutes (1979). Specifically, Respondent is charged with improperly filing a notice of lis pendens against real property.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent holds real estate broker license no. 0186475, and was so licensed at all times relevant to this proceeding. However, he did not act in his licensed capacity in any of the transactions discussed herein.

      
      

   2. Respondent was involved in a corporate business venture with Donald M. and Darlene Pifalo. He believed the Pifalos had improperly diverted funds from the corporation and filed suit accordingly.

      
      

   3. In December, 1980, while this suit was pending, Respondent filed a notice of lis pendens against various properties owned by the Pifalos. This action encumbered property in which the Pifalos' equity greatly exceeded Respondent's alleged loss in the business venture.

   4. There was no evidence that the Pifalos were planning to leave the jurisdiction or would be unable to make any court ordered restitution. Further, the encumbered property was not at issue in this litigation. Finally, Respondent filed the notice of lis pendens on his own volition and not on the advice of counsel. The notice was subsequently dismissed.

      
      

      CONCLUSIONS OF LAW

      
      

   5. Section 475.25, Florida Statutes (1979), provides in part:

      
      

      1. The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administrative fine not to exceed $1,000 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:

         1. Violated any provision of s. 475.42 or of s. 455.227(1);

            
            

   6. Subsection 475.42(1)(j), Florida Statutes (1979) provides:

      
      

      (j) No broker or salesman shall place, or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing which purports to affect the title of, or encumber, any real property if the same is known to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution or recording whereof has not been authorized by the owner of the property, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose.

      
      

   7. The above provisions restrict the use of the lis pendens device by realtors. 1/ Specifically, a broker may not, as here, use lis pendens to coerce the payment of money.

      
      

   8. Lis pendens is proper only when the relief sought might specifically affect the property in question. There is no other justification for burdening the alienability of property pending the outcome of a lawsuit. World Wide Dev.

      - Kendale Lakes West v. Lot Head, Inc., 305 So.2d 271,272 (Fla. 3d DCA, 1974).

      
      

   9. Here, the property burdened was not at issue in Respondent's lawsuit. Respondent is therefore guilty of improper use of the lis pendens procedure in violation of the above quoted statutory provisions.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That Petitioner enter a Final Order finding Respondent guilty of violating Subsections 475.25(1)(a) and 475.42(1)(j), Florida Statutes (1979), and fining Respondent $500.

DONE and ENTERED this 16th day of April, 1982 in Tallahassee, Florida.

R. T. CARPENTER 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 16th day of April, 1982.

ENDNOTE

1/ Upheld as a valid restriction to prevent misuse to the disadvantage of the public, Llera Realty, Inc. v. Board of Real Estate, 385 So.2d 1131 (Fla. 3d DCA, 1980).

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Robert J. Norton, Esquire

Suite 408, First National Bank Building Punta Gorda, Florida 33950

Mr. C. B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801

Frederick Wilsen, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002479

Orders for Case No: 81-002479