STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2531

)

JOHN M. BOSKO, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Tampa, Florida, on January 12, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Grover C. Freeman, Esquire

Freeman & Lopez, P.A.

4600 West Cypress, Suite 410

Tampa, Florida 33607

For Respondent: Harry M. Hobbs, Esquire

725 East Kennedy Boulevard Tampa, Florida 33602

ISSUE PRESENTED

Whether Respondent's license as a real estate salesman should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, F.S., as set forth in Administrative Complaint dated September 2, 1981.

At the commencement of the hearing, the parties stipulated to Paragraphs 2 and 3 of the Administrative Complaint. Although Paragraph 2 thereof indicates that Respondent is a registered real estate salesman, he testified without contradiction that he has been licensed as a broker for the past 3-1/2 years.

Accordingly, that fact will be reflected in the Findings of Fact herein.

Both parties called one witness each to testify at the hearing, and Respondent testified in his own behalf. No exhibits were submitted in evidence.

FINDINGS OF FACT

1. Respondent, John M. Bosko, of Tampa, Florida, is a registered real estate broker and was so registered at all times relevant to the matters pertinent to this proceeding. (Testimony of Respondent, Stipulation)

2. On or about May 11, 1979, Respondent leased a house which he owned at 3105 South Adams Street, Tampa, Florida, for a term of one year, to Gregory and Cindy Morrison. The lease was payable in the amount of $265.00 per month, and a

   $265.00 security deposit, to ensure compliance with performance of the lease provisions, was paid at the commencement of the lease. (Testimony of G. Morrison, Respondent, Stipulation)

   
   

3. Gregory Morrison occupied the leased premises commencing in May, 1979. His wife, Cindy, left the house in December, 1979, and the couple was divorced in January, 1980. Mrs. Morrison took most of the furniture with her upon her departure. About March 1980, Respondent advised Morrison that he intended to sell the house and would not be renewing the lease. Morrison told him than he would leave the premises at the termination of the lease, on May 10, 1980. (Testimony of G. Morrison, Respondent)

   
   

4. During the first week of April, 1980, Morrison moved to his future place of residence and did not live any longer in the leased house. During this period there was no furniture in the house. As to those articles that remained on the premises, the testimony of Morrison and Respondent is conflicting. Morrison claimed that he left a "pile of stuff" in the living room, including cleaning items, a vacuum cleaner, and games. He also testified that he had stored power tools, a weight bench, weights, a tuxedo, and a trombone in the garage. However, Respondent took a prospective purchaser of the house to the premises at approximately this time and they observed only an old vacuum cleaner in the living room. There were no clothes in the closets, no food in the refrigerator, and only some debris in the corner of the closets. About 500 whiskey bottles were distributed throughout the house, and about 35 marijuana plants were located in the family room. Respondent testified that he saw nothing in the garage. He therefore hired someone to clean the premises and put any of Morrison's items in the garage. Respondent was of the opinion that the house had been abandoned and that Morrison had forfeited the security deposit. (Testimony of G. Morrison, Respondent, Bankston)

   
   

5. Morrison went to the house some time thereafter, saw that his property was missing, and reported it to the police. He telephoned the Respondent who informed him that he thought Morrison had vacated the premises, and that he had secured another tenant. Respondent told him that any of his property that had been left in the house could be found in the garage. Respondent declined to return the security deposit because he believed that Morrison had breached the provisions of the lease. Although Morrison had not paid the rent when due on April 1, he had a five-day grace period and tendered the month's rent to the Respondent within that time, but Respondent refused to accept it. Respondent proceeded to lease the property to another tenant and did not issue any notices to Morrison, or initiate any judicial proceedings pursuant to Chapter 83, Florida Statutes. Respondent testified that he was unaware of the provisions of Chapter 83. (Testimony of G. Morrison, Respondent)

   
   

6. Morrison filed a civil action against Respondent for recovery of his personal property. The parties arrived at a compromise settlement consisting of return of Morrison's security deposit and one month's rent. (Testimony of G. Morrison)

   CONCLUSIONS OF LAW

   
   

7. The Administrative Complaint charges the Respondent with violation of Subsection 475.25(1)(b), Florida Statutes. At the hearing, Petitioner's counsel limited the scope of the statutory provision to misrepresentation, dishonest dealing, and breach of trust in a business transaction.

   
   

8. The evidence in this case shows that Respondent acted prematurely and in an ill-advised manner by taking possession of the premises prior to termination of the lease period, and without compliance with the applicable provisions of Chapter 83, Florida Statutes. The lease in question was not due to expire until May, 1980, but Respondent constructively evicted his tenant some three weeks prior to the expiration date. Although the tenant may have breached one or more of his obligations under Section 83.52, Florida Statutes, to maintain the dwelling unit in a clean, sanitary, lawful and appropriate manner, thus providing Respondent with a ground for advance termination of the lease, Section 83.56(2), F.S., requires the landlord to provide written notice specifying the non-compliance and indicating his intention to terminate the rental agreement, and the tenant's failure to so comply within seven days thereafter. In such an instance of termination, the landlord is further obliged to comply with the provisions of Section 83.49(3), F.S. with regard to any claim upon the security deposit. This statutory provision also requires written notices of any intent of the landlord to impose a claim upon the deposit and the consequent rights of the tenant to object thereto. Additionally, Subsection 83.49(5) requires a tenant who vacates or abandons the premises prior to the expiration of the term to provide a seven-day written notice to the landlord prior to vacating or abandoning the premises. Failure to give such notice relieves the landlord of the notice requirement of Subsection (3)(a).

   
   

9. The evidence shows that Respondent could reasonably have believed that Morrison had vacated the premises in advance of the lease period due to its lack of furniture, presence of the tenant, or any indication that he was still living there. Nevertheless, such an indication did not justify Respondent in terminating the lease without compliance with the above-cited provisions of Section 83.56(2), F.S. However, Respondent's mere non-compliance with the provisions of applicable landlord and tenant law does not rise to the level of misconduct contemplated under Section 475.25(1)(a), F.S. for the application of disciplinary measures. Here, there has been no showing that Respondent is a dishonest or unscrupulous individual, thus warranting punitive sanctions. At most, he is chargeable with negligence in failing to acquaint himself with a landlord's obligation under Chapter 83, Florida Statutes. Although the evidence was insufficient to determine just what personal property the tenant had at the leased premises, there is no indication that Respondent converted any of the items to his own use or otherwise illegally disposed of anything of value. This view is supported by the fact that the parties entered into an amicable settlement of their civil dispute. Neither is the evidence sufficient to show that Respondent misrepresented material matters to the tenant or committed a breach of trust. Accordingly, it is

RECOMMENDED that the allegations of the Administrative Complaint herein against Respondent, John M. Bosko, be dismissed.

DONE and ENTERED this 25th day of February, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 25th day of February, 1982.

COPIES FURNISHED:

Grover C. Freeman, Esquire FREEMAN & LOPEZ, P.A.

4600 West Cypress, Suite 410

Tampa, Florida 33607

Harry M. Hobbs, Esquire 725 East Kennedy Blvd. Tampa, Florida 33602

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

Frederick H. Wilsen Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002531

Orders for Case No: 81-002531