STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-757

) JAMES THOMAS REALTY, INC. and ) JAMES M. THOMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tampa, Florida, on July 29, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer,

1. T. Carpenter. The parties were represented by:

   
   

   APPEARANCES

   
   

   For Petitioner: David P. Rankin, Esquire

   4600 West Cypress, Suite 410

   Tampa, Florida 33607

   
   

   For Respondent: James P. Knox, Esquire

   620 Twiggs Street

   Tampa, Florida 33602

   
   

   This matter arose on Petitioner's Administrative Complaint charging Respondent with violating the provisions of Chapter 475, Florida Statutes (1979), which prohibit use of the Lis Pendens remedy to collect real estate commissions. The parties submitted proposed findings which are incorporated herein to the extent they are relevant and consistent with the evidence.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, JAMES M. THOMAS, was at all times material to this proceeding a real estate broker licensed with the Florida Board of Real Estate and had been issued license number 0088265.

      
      

   2. Respondent, JAMES THOMAS REALTY, INC., was at all times material to this proceeding a Florida corporation licensed as a real estate broker and was issued license number 0180981.

      
      

   3. At all times material to this proceeding, Respondent, JAMES M. THOMAS, was the qualifying officer of the Respondent, JAMES THOMAS REALTY, INC.

      
      

   4. On May 7, 1980, Respondents, by and through their attorney, filed a civil lawsuit against Monroe Gray and Shirley Gray in which the Respondents

      sought the payment of a real estate brokerage commission in the Circuit Court of Hillsborough County, Florida.

      
      

   5. On May 7, 1980, the Respondents, by and through their attorney, filed a Notice of Lis Pendens in connection with the above referenced lawsuit.

      
      

   6. The sole purpose in the filing of the above referenced Complaint and Notice of Lis Pendens was to protect and collect a real estate brokerage commission which the Respondents believed was owed to them by the owners of the property.

      
      

   7. To the knowledge of Respondents, the Grays had no other assets located in Florida.

      
      

   8. On June 3, 1981, the Respondents, by and through their attorney, filed a Release of Lis Pendens on this property.

      
      

      CONCLUSIONS OF LAW

      
      

   9. 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.

      
      

   10. The above provision denies the use of the Lis Pendens remedy to real estate brokers for the purpose of collecting real estate commissions. 1/ No exceptions are stated and none are implied by the statutory language.

       
       

   11. 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);

   12. Based on the violation of Subsection 475.42(1)(j), Florida Statutes (1979), Respondents are subject to license revocation, license suspension or a fine of $1,000. Since there was no evidence of any prior violations, a moderate fine is appropriate.

RECOMMENDATION

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

That Petitioner enter a Final Order finding Respondents guilty of violating Subsections 475.25(1)(a) and 475.42(1)(j), Florida Statutes (1979), and fining Respondents $250.00 each.

DONE and ENTERED this 30th day of August, 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 30th day of August, 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:

David P. Rankin, Esquire 4600 West Cypress, Suite 410

Tampa, Florida 33607

James P. Knox, Esquire 620 Twiggs Street

Tampa, Florida 33602

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Frederick Wilsen, Esquire Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 82-000757

Orders for Case No: 82-000757