STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1335

)

ALEXANDER M. LATTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard before the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, on August 10, 1983, in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Larry E. Solomon, Esquire

601 Twiggs Street, Suite 102

Tampa, Florida 33602 BACKGROUND

These proceedings began on March 22, 1982 when the Secretary of the Department of Professional Regulation signed an Administrative Complaint against Respondent Alexander M. Latter. The Complaint alleged that Mr. Latter had altered the terms of a real estate purchase contract without consent of either party to the contract. On May 12, 1982 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.

After numerous continuances the final hearing was held on August 10, 1983 when Petitioner presented the testimony of witnesses and offered Petitioner's Exhibits 1 and 2 into evidence. Exhibit 1 was received but Exhibit 2 was refused admission because the document could not be properly authenticated.

Section 90.953(2), Florida Statutes. Respondent presented the testimony of witnesses and offered Exhibits A and B which were received into evidence. At the final hearing Petitioner was allowed to amend the Administrative Complaint to allege that Mr. Latter holds a corporate real estate broker's license, no. 0224707, in addition to his other license already alleged in the original Administrative Complaint.

The parties have filed Proposed Recommended Orders containing proposed findings of fact. They have each been given careful consideration here. To the extent that the proposed findings are not reflected in this Order, they are rejected as being either not supported by the weight of credible admissible evidence, or as being irrelevant to the issues determined here. 1/

At the conclusion of the hearing the Hearing Officer provided that proposed orders should be submitted within 15 days after the transcript of the hearing was filed. No responses or replies to the proposed orders were allowed. After both parties filed their proposed orders on or before September 6, 1983, Respondent then filed a letter response to Petitioner's proposed order.

Petitioner has now moved to strike the letter from the record. The motion is granted.

FINDINGS OF FACT

1. Mr. Latter is licensed by the Florida Real Estate Commission as a real estate broker under licenses 00500688 and 0224707 and has been so licensed at all times material to this case.

   
   

2. In July of 1981 Mr. Michael Kass offered for sale a house located at 4005 Obispo, Tampa, Florida. Mr. Latter was the listing broker on behalf of Mr. Kass. Ms. Evette C. Vining saw the house and made an offer which was for less than Mr. Kass wanted. He counteroffered to sell the house "as is" with no warranties. After numerous subsequent offers and counteroffers which included both typed and handwritten additions on several signed contracts of sale between the parties both Mr. Kass and Ms. Vining believed they arrived at an agreement and the closing was scheduled.

   
   

3. The documents on which the parties began their negotiations were printed forms prepared by the Tampa Board of Realtors. Paragraph 2 on the prepared form provides:

   
   

   Seller, at his expense, shall furnish the buyer with a letter from a licensed termite inspector stating there are no

   visible signs of active termite infestation.

   In event infestation is indicated, pro perty shall be treated at expense of Seller.

   
   

4. The copy of the Contract for Sale of Real Estate which was used by Mr. Kass and Ms. Vining at their closing had paragraph 2 lined out. That copy had been given to Respondent to have the closing documents prepared by the title company. Respondent lined out that paragraph in order to conform the second paragraph to the preceding handwritten provisions on the document providing that the sale of the house was "as is". The only warranties provided by the parties were those relating to appliances, the roof, electrical and plumbing systems which had just been recently repaired or installed by Mr. Kass. The warranties relating to those items were typed in on the back of of the contract.

   
   

5. Mr. Latter removed paragraph 2 from the copy of the contract on which the parties closed because he believed that when a house is sold "as is" no termite inspection report is required, and if paragraph 2 had remained in the contract it would confuse and possibly delay the closing process. There is no evidence that his deletion of paragraph 2 was made with the intent of misleading, defrauding, or otherwise harming any person. Mr. Latter did not

   obtain the approval of either the buyer or the seller to remove paragraph 2 and he informed neither of them about the deletion until after the closing.

   
   

6. There is considerable conflicting testimony in the record about whether or not Mr. Latter actually made the deletion of paragraph 2 himself. The finding that he did so is based on the demeanor of the testifying witnesses, their possible motives for bias and prejudice, and on the reliability of their recollection of the incident in question.

   
   

7. Mr. Latter has been a real estate broker for almost 20 years. There has never been a grievance filed against him at the local level or a complaint previously filed before the Department of Professional Regulation concerning his conduct as a realtor. His reputation among his fellow realtors in the Tampa area is extremely good.

   
   

8. In the Tampa area a contract for sale of real estate such as the house in question here would not normally have an "as is" clause and also provide for the seller to secure a termite inspection report. It is widely understood among realtors that an "as is" clause excludes such reports, particularly here where the "as is" clause was handwritten in the contract while the termite inspection report provision is part of the printed form.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 455.225(4), Florida Statutes.

   
   

10. The Administrative Complaint charges Mr. Latter with violating Section 475.25(1)(b), Florida Statutes (1981), which 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 admini strative 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:

       (b) Been guilty of fraud, misrepresen tation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable neglicence, or breach of trust in any business transaction in this state or any other state, nation, or territory;...

       
       

11. The deletion of paragraph 2 in the Contract for Sale of Real Estate between Mr. Kass and Ms. Vining is the factual basis on which discipline is sought here. I conclude that Mr. Latter's act in making that deletion constitutes a breach of trust contrary to Section 475.25(1)(b), Florida Statutes, but does not otherwise violate any of the provisions of that paragraph.

    
    

12. When Mr. Latter received the contract for sale agreed to between the parties they reasonably relied on him to transmit the contract to the closing agent without alteration. His subsequent alteration of that contract without

    their consent, and his failure to inform them of the alteration before the closing violated his duty of fair dealing, candor and honesty towards both parties. Ellis v. Flink, 301 So.2d 493, 494 (Fla. 2d DCA 1974), cert. denied, 374 So.2d 4 (Fla. 1979).

    
    

13. While Mr. Latter failed to deliver the contract entrusted to him to the closing agent without change, his failure was certainly a minuscule breach of his responsibilities as a realtor. His error had a benevolent intent. There is no evidence that he deleted paragraph 2 with the purpose of adversely affecting the rights of either party. He understood an "as is" contract not to call for the provision of a termite inspection report. His defalcation is one which could have easily been made by other realtors. The evidence in the record shows that Mr. Latter's fellow realtors interpret an as is contract not to require reports of any kind to be provided by the seller.

    
    

14. Certainly the more responsible course for Mr. Latter to follow once he received a contract for an "as is" sale, but providing for a termite inspection report, would have been to contact the parties and have them resolve the ambiguity.

    
    

15. Mr. Latter's violation of Section 475.25(1)(b), Florida Statutes, was at its worst, only a technical violation. It does not require discipline here in the unique facts and circumstances of this case. Peck v. Florida Real Estate Commission, 204 So.2d 355 (Fla. 2d DCA 1967); Revard v. McCoy, 212 So.2d 672 (Fla. 1st DCA 1968); Flaig v. Pest Control Commission, 213 So.2d 471 (Fla. 1st DCA 1968).

RECOMMENDATION

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

That the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint filed against Respondent Alexander M. Latter.

DONE and RECOMMENDED this 1st day of February, 1984, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

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 1st day of February, 1984.

ENDNOTE

1/ Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v. Orlando Utilities Commission, 436

So.2d 383 (Fla. 5th DCA 1983).

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Larry E. Solomon, Esquire 601 Twiggs Street, Suite 102

Tampa, Florida 33602

Harold Huff, Executive Director Florida Real Estate Commission

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

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs. DOAH NO. 82-1335

CASE NO. 0019990

ALEXANDER M. LATTER,

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on March 20, 1984 for the purpose of issuing a Final Order.

Hearing Officer Michael Dodson of the Division of Administrative Hearings presided over a formal hearing on August 10, 1983. On February 1, 1984, Hearing Officer Dodson issued a Recommended Order. A copy of the Recommended Order is attached hereto and made a part hereof as Exhibit A. The Florida Real Estate Commission, after hearing arguments from Petitioner and Respondent, adopts the Hearing Officer's Background and Findings of Fact. As to Conclusions of Law, the Florida Real Estate Commission accepts the Conclusions contained in paragraphs 1 through 6. The Florida Real Estate Commission, upon a review of the complete record rejects Conclusion 7 and finds that the Respondent's altering a contract without permission of all the parties is a violation of Section 475.25(1)(b), Florida Statutes.

It is therefore ORDERED, based upon a complete review of the record and on the testimony heard on this date, that the Hearing Officer's Recommendation be set aside and that the Respondent receive a public reprimand.

This Order shall be effective thirty (30) days from the date of filing with the Clerk of the Department of Professional Regulation.

DONE and ORDERED this 20th day of March 1984 in Orlando, Florida.

Brian J. Ladell, Chairman Florida Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by

U.S. Mail to: Larry E. Solomon, Esquire, 601 Twiggs Street, Suite 102, Tampa, Florida 33602; to Hearing Officer Michael Dodson, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to Frederick

H. Wilsen, Attorney for Petitioner, Department of Professional Regulation, Post Office Box 1900, Orlando, Florida 32802, this 3rd day of April 1984.

Harold R. Huff, Director

RS:ba

Docket for Case No: 82-001335

Orders for Case No: 82-001335