STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-3259

)

MARK D. BOARDMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing Maitland, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R.T. Carpenter, on March 12, 1982. The parties were represented by:

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Charles Holcomb, Esquire

Holcomb, Theriac & Steinberg

10 North Sykes Creek Parkway, Suite 200 Merritt Island, Florida 32952

This matter arose on Petitioner's administrative complaint charging Respondent with violation of Section 475.25, Florida Statutes (1979).

Specifically, Respondent is charged with misrepresentation in the execution of a joint venture agreement and conspiracy with his brother, the second joint venturer, to deprive the third joint venturer of his rights to commonly held property.

The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they have been specifically rejected as irrelevant or as unsupported by the evidence.

FINDINGS OF FACT

1. Respondent has been a registered real estate salesman holding license no. 0203417 at all times relevant to this proceeding. He is not currently active in his licensed capacity.

   
   

2. By warranty deed dated July 6, 1978, Respondent, along with his brother, Reed Boardman, and Robert Londeree purchased a building and lot in Orange County. Each party held an undivided one third interest in the property.

3. The building was to be renovated for use as professional offices by Reed Boardman and Robert Londeree. Respondent was not involved in arranging the sale and did not intend to participate in the renovation or subsequent use of office space. Rather, his contribution and ownership interest were viewed by all parties as a passive investment.

   
   

4. In order to set forth the rights and obligations of the co-owners, the parties developed a joint venture agreement which was executed on August 2, 1978. In the meantime, Respondent had encountered financial difficulties and sold his one third interest in the property to Reed Boardman. Respondent did, however, remain obligated under the mortgage on this property.

   
   

5. The transfer was carried out by quit claim deed executed July 21, 1978 and recorded on July 28, 1978. Because of the personal nature of Respondent's financial problems, the Boardmans did not inform Londeree of the quit claim transfer. Thus, Londeree did not know that Respondent had transferred his ownership interest in the property to Reed Boardman when the parties executed the joint venture agreement on August 2, 1978.

   
   

6. In early 1979, Reed Boardman and Londeree had a falling out over the property renovation. Londeree became aware of the quit claim deed and subsequently filed suit to partition the property. The dispute was eventually settled and the suit was dismissed.

   
   

7. There was no evidence of misuse of the majority interest held by the Boardmans and later by Reed Boardman. Londeree was never denied access to the property, nor did he suffer any damages which resulted from the undisclosed transfer.

   
   

   CONCLUSIONS OF LAW

   
   

8. Subsection 475.25(1)(a), Florida Statutes (Supp. 1978), 1/ provides for license suspension where a licensee has:

   
   

   1. Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction, in this stater any other state. . . .

      
      

      It shall be immaterial to the guilt of the registrant that the victim, or intended victim, of the misconduct has sustained no damage or loss or the damage or loss has been settled and paid, after discovery of the misconduct, or whether such victim,

      or intended victim, thereof, was a customer or a person in confidential relation with the registrant, or was an identified member of the general public. . . .

      
      

9. Under the above provision, Respondent may be disciplined by Petitioner for misrepresentation in any business transaction, whether or not he was acting in his licensed capacity. 2/ Petitioner's disciplinary powers are likewise not limited by the absence of damages resulting from the misconduct.

10. Respondent had a duty to disclose the existence of the quit claim deed to Londeree prior to executing the joint venture agreement. This was a material fact which substantially altered the relationship of the parties. Further, Respondent materially misrepresented his status in signing the joint venture agreement.

    
    

11. Respondent is therefore guilty of misrepresentation in a business transaction as charged in the administrative complaint and as condemned by the above quoted statute. However, the gravamen of the administrative complaint concerns a conspiracy to injure Londeree and to deny him access to the subject property. This was never contemplated by the Boardmans and did not occur. Furthermore, both the cited statute and the administrative complaint are aimed at the punishment of corrupt acts. There was no corrupt purpose or motive on the part of Respondent established, nor could such be inferred from the evidence presented in this proceeding.

RECOMMENDATION

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

That Petitioner enter a Final Order dismissing the administrative complaint.

DONE and ENTERED this 14th 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 14th day of April, 1982.

ENDNOTES

1/ Currently Subsection 475.25(1) (b), Florida Statutes (1981).

2/ McKnight vs. Florida Real Estate Commission, 202 So. 2d 199 (Fla. 2nd DCA 1967).

COPIES FURNISHED:

Bruce D. Lamb, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Charles Holcomb, Esquire Holcomb, Theriac and Steinberg Suite 200

Ten North Sykes Creek Parkway Merritt Island, Florida 32952

Docket for Case No: 81-003259

Orders for Case No: 81-003259