STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE )

(Now Florida Real Estate )

Commission), )

)

Petitioner, )

)

vs. ) CASE NO. 81-2527

)

CAROLYN STEED, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an Administrative Hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on February 8, 1982, in Ft. Lauderdale, Florida. On June 7, 1982, the transcript of the hearing was received. The issue for determination at the hearing was whether disciplinary action should be taken against respondent's license as a real estate broker for the reasons set forth in the Amended Administrative Complaint dated December 1, 1981.

APPEARANCES

For Petitioner: Robert F. Jordan

Conrad, Scherer & James Post Office Box 14723

Ft. Lauderdale, Florida 33302

For Respondent: Carolyn Steed

5951 Southwest 67th Avenue Davie, Florida 33314

INTRODUCTION

By an Amended Administrative Complaint dated December 1, 1981, respondent is charged with violating Section 475.25 (1)(b), Florida Statutes (1979), for which suspension, revocation or other disciplinary action against her license as a real estate broker is sought. In general terms, the factual allegations of the Complaint are that respondent is a licensed real estate broker having been issued license 0145750, that she is now and was at all times alleged a licensed real estate broker in Florida, that she pulled a building permit and made application for a variance for property as an owner when she was not the owner of the property and that she acted as a contractor without a license in violation of Chapter 489, Florida Statutes.

In support of the allegations in the Complaint, petitioner presented the testimony of David Hellings, an employee with the City of Hollywood Building Department. Petitioner's Exhibits 1 through 22 were received into evidence. Respondent testified in her own behalf and presented the testimony of James Todd Hohl.

Subsequent to the hearing, the petitioner submitted proposed findings of fact and proposed conclusions of law and the respondent submitted a "Summary". To the extent that the parties' proposed findings of fact are not contained in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing or as immaterial and irrelevant to the issues in this proceeding.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At the hearing, counsel for the petitioner attempted to introduce into evidence as an exhibit a computer printout showing respondent's license status. This document could not be identified by any witness called to testify in the proceeding and was not otherwise properly authenticated. The following colloquy between counsel for the petitioner, the Hearing Officer and the respondent occurred prior to the time respondent was placed under oath during the hearing:

   
   

   MR. JORDAN: Finally, Your Honor, we'd like to introduce as our next exhibit a computer printout showing Mrs. Steed's license status which reflects that her broker's license was effective 4/1/81. That would be Exhibit 23.

   
   

   MRS. STEED: Where are they located at?

   
   

   MR. JORDAN: That came out of Tallahassee, I believe. That's just a printout on your license.

   
   

   MRS. STEED: Do they show I'm inactive?

   
   

   MR. JORDAN: Let me see. This simply shows that as of 8/28/81 and you were licensed and your broker's license became effective 4/1/81 and your home address is 10164 Southwest 64th Street.

   
   

   MRS. STEED: None of that is true.

   
   

   THE HEARING OFFICER: She obviously cannot identify that document if it's something that came out of Tallahassee and she's never seen it before.

   
   

   MRS. STEED: It's inactive.

   
   

   THE HEARING OFFICER: Okay. Since Mrs. Steed is not represented by an attorney, I feel obliged to tell her it's the Board's responsibility to prove that she either was licensed at the time of the allegations in the complaint or something --

   
   

   MRS. STEED: I am not a licensed real estate broker at the present time and I haven't been, but I just don't know the date that it changed.

   
   

   MR. JORDAN: The material time I think is back in `80 and `81 when this was going on. I can call your associate.

   MRS. STEED: I possibly was licensed then. I'm not saying I wasn't.

   I don't really know. I would say I was.

   
   

   THE HEARING OFFICER: As I said, it's the Board's responsibility to prove that up.

   
   

   MR. JORDAN: I think she's saying you still have it. It's just that it's inactive.

   
   

   MRS. STEED: I'm inactive.

   
   

   MR. JORDAN: You haven't given up your license; correct? MRS. STEED: No

   THE HEARING OFFICER: You're not offering that?

   
   

   MR. JORDAN: I'm not offering that. I think she agrees that she was licensed back in '80 and '81 when these transactions were going on. (TR. pp 59 and 60) No other evidence was offered during the hearing as to respondent's status as a licensed real estate broker in Florida.

   
   

   CONCLUSIONS OF LAW

   
   

2. Pursuant to Section 475.25, Florida Statutes, the Board of Real Estate, now Florida Real Estate Commission, is authorized to take disciplinary action against licensees, applicants for licensure or applicants for renewal of a license. In this proceeding, the petitioner has failed to establish its jurisdiction to impose any disciplinary sanctions against the respondent.

   
   

3. It has not been demonstrated that respondent currently holds an existing or inactive license to practice real estate in Florida or is an applicant for original licensure or for renewal of an existing or inactive license. The petitioner simply failed to carry its initial burden of demonstrating that it has jurisdiction to proceed against the respondent for the acts alleged in the Administrative Complaint, as amended. The unsworn statements of the respondent, who was unrepresented in this proceeding, during the colloquy between counsel for the petitioner and the Hearing Officer regarding the admissibility of a document cannot be relied upon by the petitioner to establish its jurisdiction to take disciplinary action against the respondent. Even if such statements could be utilized as evidence in this proceeding, they establish nothing. At one point, respondent stated that nothing on the computer printout was true. While stating later that she was "inactive" no evidence was presented to illustrate that respondent had requested that her license be placed in an inactive status, made application for such inactive status or paid the required fee to the petitioner, in accordance with Section 475.183, Florida Statutes.

   
   

4. There being no proof that the respondent is a registered or licensed real estate broker or salesman in Florida, or is an applicant for licensure or renewal, the petitioner has no jurisdiction to proceed against her.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint against the respondent filed on September 2, 1981, as amended on December 1, 1981, be DISMISSED.

Respectfully submitted and entered this 28th day of July, 1982, in Tallahassee, Florida.

DIANE D. TREMOR

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 28 day of July, 1982.

COPIES FURNISHED:

Robert F. Jordan, Esquire Mr. C. B. Stafford Conrad, Scherer & James Executive Director

Post Office Box 14723 Florida Real Estate Commission Ft. Lauderdale, Florida 33302 Post Office Box 1900

Orlando, Florida 32801

Carolyn Steed

5951 S. W. 67th Ave. Fred Wilsen, Esquire

Davie, Florida 33314 Florida Real Estate Commission

400 W. Robinson Orlando, Florida 32801

Docket for Case No: 81-002527

Orders for Case No: 81-002527