STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of Real Estate, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2581

)

WAYNE H. HUNTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on February 12, 1982, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Mark P. Kelley, Esquire

FREEMAN & LOPEZ

4600 West Cypress, Suite 410

Tampa, Florida 33607

For Respondent: Wayne H. Hunter, pro se

4780 Cove Circle, Apartment 104 St. Petersburg, Florida 33708

The issue involved in this case is whether the real estate broker's license of Respondent Wayne H. Hunter should be revoked, suspended or other disciplinary action imposed for allegedly pledging the equity in a condominium unit which he did not own as an earnest money deposit on a tract of land.

At the final hearing, Petitioner's Exhibits 1-5 were offered and admitted into evidence. Ralph L. Monroe, Donna Shaffer and Mario Sosa testified on behalf of the Petitioner. Respondent's Exhibits 1 and 2 were offered and admitted into evidence. Dennis Koelsch, James Kelly, Peter Dillard and Wayne Hunter testified on behalf of the Respondent.

Proposed Findings of Fact and Conclusions of Law were filed by the parties.

Those findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.

FINDINGS OF FACT

1. Respondent Wayne H. Hunter is a registered real estate broker holding license number 0115637. Respondent's present address is 4780 Cove Circle, Apartment 104, St. Petersburg, Florida 33708.

2. On April 29, 1980, and at all other times material to this proceeding, the Respondent Hunter was vice-president and director of Professional Center Realty, Inc., a Florida corporation.

   
   

3. On April 29, 1980, Ralph Monroe, realtor, entered into a contract on behalf of Mario Sosa with Professional Center Realty, Inc. Mr. Sosa, who is also a realtor, was the owner of the acreage which is the subject of this proceeding.

   
   

4. The Respondent Hunter negotiated the terms of the April 29, 1980 contract for sale between Ralph Monroe, realtor for Mario Sosa, and Professional Center Realty, Inc. and all oral and/or written modifications and extensions of the original contract. The contract for sale specified that Unit 114 of the French Quarter Condominiums was pledged as an earnest money deposit on Sosa's acreage subject to a $28,000 first mortgage on the condominium. This unit represented an exchange vehicle submitted to render the contract legally binding and the buyer, Professional Center Realty, Inc., agreed to produce $25,000 cash In lieu of the condominium unit prior to closing.

   
   

5. In negotiating the contract for sale and subsequent modifications and extensions of the contract, the Respondent Hunter represented that he either owned Unit 114 of the French Quarter Condominiums or had the legal authority from the owner of record to pledge the condominium unit as an earnest money deposit. In support of this contention, the Respondent offered to produce a deed to the unit which would be placed in escrow until exchanged for the $25,000 cash.

   
   

6. The Respondent Hunter at no time material to the negotiation, execution, modification and extension of the April 29, 1980 contract for sale either held title to Unit 114 of the French Quarter Condominiums in his own name or had the requisite legal authority to use this condominium as a deposit.

   
   

7. The original closing date of June 13, 1980, was extended by the parties when the Respondent Hunter could not produce either the $25,000 in cash or a deed to the unit.

   
   

8. On June 23, 1980, the Respondent Hunter informed Sosa that he did not have the cash to close the transaction. He offered, however, to pledge future commissions due to Professional Center Realty, Inc., in lieu of cash. Sosa refused this offer. The Respondent Hunter then sent Sosa a corporate note for

   $10,000. When Sosa learned that the assets of the corporation consisted of furnishings and future commissions, this offer was also rejected.

   
   

9. Neither Ralph Monroe, realtor, nor Mario Sosa, the owner at the time of negotiating, executing, modifying and extending the April 29, 1980, contract for sale, knew that the Respondent neither owned nor had legal control over the condominium. The April 29, 1980, contract for sale failed to materialize and/or close as a direct result of the Respondent's misrepresentations and actions relative to Unit 114. This resulted in the loss to Sosa of all earnest monies and/or properties pledged as earnest money on the sale of the property. The Respondent Hunter knew that he did not have the appropriate legal authority to use Unit 114 as an earnest money deposit in connection with the April 29, 1980, contract for sale.

10. The Respondent Hunter attempted to use Unit 114 for his own benefit in order to purchase the Sosa property on behalf of Professional Center Realty, Inc.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings had jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

12. Section 475.25(1), Florida Statutes authorizes the Board of Real Estate to suspend a license for a period not exceeding ten years, revoke a license, impose an administrative fine not to exceed $1,000 for each count or separate offense or issue a reprimand if it fine that a licensee has:

    
    

    [b]een 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 in this state or any other state, nation, or territory; has violated a duty imposed upon him by law or by

    the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and has committed an overt act in furtherance of such intent, design, or scheme. It shall be immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has

    sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee, or was an identified member of the general public.

    
    

13. In the instant case, the Administrative Complaint charges that due to his actions in attempting to purchase the Sosa property with a condominium unit he neither owned nor controlled, the Respondent Hunter is guilty of a course of conduct constituting fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction. Additionally, the Administrative Complaint charges that the Respondent Hunter by his conduct, aided, assisted or conspired with another to further his and/or their misconduct.

    
    

14. By using real property owned by another as a deposit on a tract of land he wished to purchase, the Respondent Hunter breached a duty owed both to the owner of the condominium unit and the seller of the tract of land. Simply stated, by placing his personal interest in acquiring the property ahead of these with whom he had a statutory duty to protect, the Respondent Hunter violated Section 475.25(1)(b), Florida Statutes. See Bouchelle v. Florida Real

    Estate Commission, 188 So.2d 60 (Fla. 1st DCA 1966). A broker's duties toward those with whom he deals are clear and require that he act in an honest and open manner. A broker's responsibilities in this state were summarized in Shelton v. Florida Real Estate Commission, 120 So.2d 191, 194 (Fla. 2nd DCA 1960), as follows:

    
    

    [w]e are considering the statutorily imposed duties and responsibilities of a real estate broker in the practice of his profession.

    Whether or not [the broker] did in fact make the material representation charged is a serious matter, since in this state a real estate broker occupies a privileged position wherein those in his profession enjoy a monopoly to engage in a lucrative business. In turn, they are statutorily charged with a duty to prospective buyers as well as to the principals whom they represent. . . The statutes regulating the activities of real

    estate brokers in their business were designed to protect the public and to safeguard those persons who put their money and trust in the hands of real estate brokers. . . Anyone who deals with a licensed broker may assume that he is dealing with an honest and ethical person, and the old rule of caveat emptor is cast aside. . . (e.s)

    
    

15. At the final hearing, the Respondent Hunter attempted to explain his conduct in this transaction by asserting that Ralph Monroe knew that the Respondent did not own the property and that the closing would have occurred if Mario Sosa had accepted future commissions in lieu of $25,000 In cash. In regard to the first contention, it is highly unlikely that either Sosa or Monroe, both realtors, would have accepted the condominium unit as an earnest money deposit on a $181,000 property knowing that Hunter had no legal authority to pledge the unit. Moreover, the fact that Sosa refused to accept future commissions in lieu of the $25,000 is irrelevant. Sosa had the right to demand the $25,000 at the time of the closing and he was under no duty to accept future commissions in lieu of the cash specified in the contract.

    
    

16. The power to revoke a license should be exercised cautiously and should be directed only toward those who by their conduct have forfeited their right based upon substantial causes justifying the forfeiture. Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966); Pearl v. Florida Real Estate Commission, (Fla. 3rd DCA 1981). The Respondent Hunter's lack of appreciation for the seriousness of what occurred in this case and his attempt to disclaim responsibility for his own actions, are disturbing and indicate that he lacks the requisite judgment and integrity to continue to act as a broker in this state. See Pauline v. Boer, 274 So.2d 1 (Fla. 1974).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED:

That the real estate broker's registration of the Respondent Wayne H. Hunter be revoked.

DONE and ORDERED this 13th day of April, 1982, in Tallahassee, Florida.

SHARYN L. SMITH

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 13th day of April, 1982.

COPIES FURNISHED:

Nork P. Kelley, Esquire FREEMAN & LOPEZ

4600 West Cypress, Suite 410

Tampa, Florida 33607

Wayne H. Hunter

4780 Cove Circle, Apt. 104

St. Petersburg, Florida 33708

Frederick H. Wilsen, Esquire Assistant General Counsel

Dept. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein Secretary

Dept. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Carlos B. Stafford

Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Docket for Case No: 81-002581

Orders for Case No: 81-002581