STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2038

)

RALPH B. SNYDER, JR., & )

HOME HUNTERS V, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on February 8, 1983, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Tina Hipple, Esquire

400 West Robinson Street Orlando, Florida 32801

For Respondent: John Snow, Esquire

Pinebrook Park, Suite 132 9600 South Tamiami Trail Fort Myers, Florida 33907

Petitioner has filed three separate Administrative Complaints which have been forwarded to the Division of Administrative Hearings, and were assigned DOAH Case Nos. 82-2038, 82-2410, and 83-202. Each of these causes was consolidated for final hearing, but for purposes of clarity a separate Recommended Order will be issued in each case. Exhibits received into the consolidated record were considered, where applicable, in the context of the issues framed by the Administrative Complaint in each separate case.

Final hearing in these causes was scheduled for February 8, 1983, by Amended Notice of Hearing dated January 5, 1983.

At the final hearing Petitioner called William J. Konwinski, Sheryl Kimball, Grant John Bartels, John P. Galioto, Joe Gracey, Ilana Frank, and Betty Peace as its witnesses. Petitioner offered Petitioner's Exhibits 2 through 8,

10 through 12, 14, and 25 through 28, which were received into evidence. Respondent testified in his own behalf and called Linda Cure as a witness. Respondent offered no exhibits for inclusion in the record.

In the Administrative Complaint in this cause, Respondent is charged with having employed a person as a salesman who was not the holder of a valid and

current license as a salesman in violation of Sections 475.25(1)(c) and 475.25(1)(a), Florida Statutes. In addition, Respondent is alleged to be guilty of paying a fee or compensation to a person not properly licensed as a broker, broker-salesman, or salesman in violation of Section 475.25(1)(h), Florida Statutes. The Administrative Complaint also charges Respondent with having inserted or having caused to be inserted fraudulent, false, deceptive, or misleading advertisements in the Post and Evening Times newspaper of West Palm Beach Beach, Florida, in violation of Section 475.25(1)(c), Florida Statutes.

Finally, Respondent is alleged to have violated Section 475.25(1)(b), Florida Statutes, by soliciting and accepting advance rental fees by false representations as to the availability of rental units available through Respondent's office.

Both counsel for Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been specifically rejected as either being irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Ralph B. Snyder, Jr. ("Respondent"), was a licensed real estate broker having been issued license No. 0082998. Respondent was the qualifying broker for Home Hunters V, Inc., a corporate real estate broker having been issued license No. 0221795, with a principal business address of 2829 Okeechobee Boulevard, West Palm Beach, Florida.

   
   

2. In September, 1981, Respondent registered Home Hunters V, Inc., as a real estate brokerage corporation, with himself as qualifying broker. The office remained open until April, 1982. Respondent was not present in the West Palm Beach office of Home Hunters V on a full-time basis because, in addition to that business, he was involved in a construction business on Sanibel Island, Florida. In late September or early October, 1981, Respondent hired Greg Howle to manage the Home Hunters V office in West Palm Beach. At all times material hereto, Howle was not registered as either a broker or salesman.

   
   

3. Respondent's business, insofar as here pertinent, consisted of maintaining card files of rental properties available in the West Palm Beach area, and advertising availability of those properties for the owners. When a prospective tenant came to Respondent's office in response to advertisements or otherwise, those tenants would sign an agreement with Home Hunters V, Inc., and, after payment of a $60 fee, would be furnished information concerning available properties in the area that generally conformed to the types of properties prospective tenants were seeking. The standard procedure in Respondent's office was that the prospective tenants would first meet with Greg Howle, the office manager, who would have them execute the agreement with Home Hunters V, Inc., collect the $60 fee from them, and then refer prospective tenants to other office employees. Among these other office employees were Ilana Frank, a licensed real estate salesperson who began employment with Respondent in late September or early October, 1981, and Sheryl Kimball, an unlicensed employee, who was employed by Respondent on or about October 16, 1981, and continued as an employee until about November 29, 1981.

   
   

4. Respondent testified that Ms. Kimball was hired as a receptionist and, in addition, performed general clerical responsibilities in the office, including greeting potential customers and referring them to licensed

   salespersons. The record in this cause establishes that Ms. Kimball did, on at least two occasions, speak with persons on the telephone concerning sales, and on both of those occasions she was reprimanded by Respondent for acting outside the scope of her employment. Ms. Kimball was never directed by Respondent to negotiate the rental of any real property nor does this record establish that Respondent knew of Ms. Kimball's engaging in any such activity.

   
   

5. Respondent testified that Ms. Kimball was paid $150 per week for her services, and, in addition, was compensated for any overtime work she might have performed. Ms. Kimball testified, however, that she was paid $150 per week together with $3.00 for each contract she negotiated. However, Ms. Kimball could identify only one such contract on which she worked. With regard to that contract, which involved a customer named Paul Palmero, Respondent never received any funds, and the record in this cause does not reflect that any services were ever performed for Mr. Palmero. Further, the entire Palmero transaction was conducted in the presence of another of Respondent's employees, Ilana Frank, who, as indicated above, was a licensed salesperson. Accordingly, there is insufficient credible evidence of record in this cause to establish that Sheryl Kimball ever negotiated the rental of real property or interest therein; procured lessees of the real property of others; or performed any of the acts of a broker or salesman as alleged in the Administrative Complaint. Further, the record in this cause contains no evidence establishing the amounts actually paid to Ms. Kimball during the six-week period in which she was employed by Respondent. In reaching this conclusion, the Hearing Officer has taken into account the testimony and interests of both Ms. Kimball and Respondent in the outcome of this proceeding in attempting to reconcile the direct conflicts in their testimony. Ms. Kimball was discharged from Respondent's employ after having received two reprimands and having been accused of misappropriating funds. Thereafter, Ms. Kimball filed a complaint against Respondent with the Florida Real Estate Commission. Conversely, Respondent obviously has an interest in retaining his license as a broker. When viewed as a whole, it is concluded that facts of record in this cause with respect to Counts I and II are qualitatively and quantitatively insufficient to establish the factual allegations contained therein.

   
   

6. Count III of the Administrative Complaint alleges that Respondent ". .

   . inserted or caused to be inserted fraudulent, false, deceptive or misleading advertisements in the Post and Evening Times newspaper of West Palm Beach, Florida." The same count further alleges that those advertisements were fraudulent, false, deceptive or misleading ". . . in that the content thereof stated to the public that respondents had available for lease through their firm various rental units at stated prices when in fact rental units of the advertised type were not available through their firm at the stated price." There is no evidence of record in this proceeding that would in any way establish the facts alleged in Count III of the Administrative Complaint. In fact, the only evidence of record on this issue is the testimony of Ms. Kimball that she observed Mr. Howle, the office manager, copying listings from Fort Myers newspapers for use in the West Palm Beach area. However, Ms. Kimball conceded that she did not know if any such ads were ever placed in the West Palm Beach newspaper. No such advertisements were introduced into evidence in this proceeding from which any comparison to any of the listings available through Respondents could be made to determine whether the ads were fraudulent, false, deceptive, or misleading.

   
   

7. County IV of the Administrative Complaint charges the Respondent with having solicited and accepted money as advance rental fees with knowledge that rental units of the type and price desired by potential tenants were not

   available through Respondent's firm, and with making false representations as to the availability of rental units. Again, there is no evidence of record in this cause to establish a single, identifiable instance in which Respondent either individually or through its employees represented that rental units were available of a type and price that were not in fact so available.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 475.25(1)(c), Florida Statutes, authorizes the Commission to discipline a license holder if it finds that he has ". . . [a]dvertised property or services in a manner which is fraudulent, false, deceptive, or misleading in form or content

   
   

10. Section 475.25(1)(a), Florida Statutes, authorizes the Commission to discipline a licensee for a violation of any provision of Section 475.42 or of Section 455.227(1), Florida Statutes. Section 475.42(1)(c) provides that ". . . [n]o broker shall employ, or continue in employment, any person as a salesman who is not the holder of a valid and current license as [a] salesman. . . .

    Section 455.227(1), Florida Statutes, empowers the Commission to revoke, suspend, or otherwise discipline a licensee upon a finding that the licensee ".

    . . has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession . . . " or ". . . has intentionally violated any rule adopted by the board or the department. "

    
    

11. Section 475.25(1)(h), Florida Statutes, authorizes discipline of a broker or salesman who has:

    
    

    Shared a commission with, or paid a fee or other compensation to, a person not properly licensed as a broker, broker-salesman, or salesman under the laws of this state, for the referral of real estate business, clients,

    prospects, or customers, or for any one or more of the services set forth in

    s. 475.01(3) . . .

    
    

12. Section 475.01, Florida Statutes, provides, in pertinent part, as follows:

    
    

    * * *

    1. 'Broker' means a person who, for another, and for a compensation

       or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration therefor, appraises, auctions, sells, exchanges, buys, rents, or offers, attempts, or agrees to appraise, auction, or negotiate the sale, exchange, purchase, or rental of any real property or any interest in or concerning the same, including mineral

       rights or leases, or who advertises or holds out to the public by any oral or printed solicitation or representation that he is engaged in the business of appraising, auctioning, buying, selling, exchanging, leasing, or renting real property of

       others or interests therein, including mineral rights, or who takes any part

       in the procuring of sellers, purchasers, lessors, or lessees of the real property of another, or leases, or interests therein, including mineral rights, or who directs or assists in the procuring of prospects or in the negotiation or closing of any transaction which does, or is calculated to, result in a sale, exchange, or leasing thereof, and

       who receives, expects, or is promised

       any compensation or valuable consideration, directly or indirectly therefor; and all persons who advertise rental property information or lists. The term 'broker' also includes any person who is a partner, officer,

       or director of a partnership corporation which acts as a broker.

       
       

    2. 'Salesman' means a person who performs any acts classified in the

       definition of 'broker,' but who performs such act under the direction, control, or management of another person. . .

       
       

13. Count I of the Administrative Complaint charges Respondent with violating Section 475.25(1)(a) and (c), Florida Statutes, by ". . . employing a person as a salesman who was not the holder of a valid and current license as a salesman. . . " in that Sheryl Kimball ". . . negotiated the rental of real property or interest therein, procured lessees of the real property of others and performed other acts of a broker or salesman as defined in Section 475.01(3) and (4), Florida Statutes. The facts of record in this proceeding fail to establish a violation as charged in Count I. There is no evidence of record in this proceeding of a single identifiable instance where Sheryl Kimball negotiated the rental of real property or an interest therein, procured lessees of real property of others or performed any of the acts of a broker or salesman set forth in the statute. Further, there is evidence that in certain unidentifiable instances where her conduct approached performing any of the acts of a broker or salesman, and that conduct was brought to the knowledge of Respondent, she was reprimanded, and ultimately discharged. As held in Bach v. Board of Dentistry, 378 So.2d 34, 36-37 (Fla. 1st DCA 1979):

    
    

    Before one may infer that a principal ratified an unauthorized act of his agent, the evidence must demonstrate that the principal was fully informed and that he approved of the act.

    It is generally the rule that the doctrine of constructive knowledge does not apply

    to bring about ratification. The principal

    is charged only upon a showing of full knowledge, and not because he had notice which should have caused him to make inquiry which in turn would have brought to his attention the knowledge of the authorized act of the employee. . . (Original emphasis.)

    
    

14. In Count II of the Administrative Complaint, Respondents are alleged to be ". . . guilty of paying a fee or compensation to a person not property licensed as a broker, broker-salesman, or salesman. . ." in violation of Section 475.25(1)(h), Florida Statutes. As indicated above, the testimony of Ms. Kimball and that of the Respondent conflict. Each of these witnesses has an interest in the outcome of this proceeding which could affect the credibility of their testimony: Ms. Kimball because she was fired by Respondent and lodged a complaint against him; and Respondent because he wishes to retain his license. Because of this fact, and further because there is no independent corroborative evidence to establish the amounts actually paid Ms. Kimball during the time of her employment with Respondent, it is specifically concluded that the record in this cause does not substantiate the charges contained in Count II of the Administrative Complaint.

    
    

15. Count III of the Administrative Complaint charges Respondents with having ". . . inserted or caused to be inserted fraudulent, false, deceptive, or misleading advertisements in the Post and Evening Times newspaper of West Palm Beach, Florida. . " It is further alleged that the content of those advertisements was deceptive or misleading in that rental units advertised therein were not available through Respondent. There is no evidence of record in this proceeding that would in any way establish the violation alleged in Count III of the Administrative Complaint.

    
    

16. Count IV of the Administrative Complaint asserts that Respondents violated Section 475.25(1)(b) by soliciting and accepting advance rentals by representing that certain rental units were available when in fact such rentals were not available. There is no evidence of record in this proceeding to establish any identifiable instances in which any such conduct occurred.

    
    

17. In Bowling v. Department of Insurance, 394 So.2d 165, 171-172 (Fla. 1st DCA 1981), the court held that:

In a proceeding under a penal statute

for suspension or revocation of a valuable business or professional license, the term 'substantial competent evidence' takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120. Although all questions of fact as distinguished from policy are determinable under the Administrative Procedure Act by substantial competent evidence . . . we differentiate between evidence which 'substantially' supports conventional forms of regulatory action and evidence which is required to support 'substantially' a retrospective characterization of conduct requiring suspension or revocation of the actor's license. Evidence which 'is substantial' for

one purpose may be less so on another, graver occasion. .

. . . Now we recognize also that in both form and persuasiveness evidence may 'substantially' support some types of agency action, yet be wanting as a record foundation for critical finding in license revocation . . . [W]e glean a requirement for more substantial evidence from the

very nature of license discipline proceedings; when the standards of conduct to be enforced are not explicitly fixed by statute or by

rule . . ; when the conduct to be assessed is past, beyond the actor's power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss

of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences. . .

In anyone's judgment, a judge's no less than any other, certain factors present 'in the record' of penal proceedings fairly detract from the substantiality of evidence which is weighty enough for less consequential purposes. One such

factor is a grave penalty. In determining 'the substantiality of evidence,' which

is to say in ascertaining what we call the facts, a judge takes the penalty into account for the same reason that compels him, in ascertaining the law, to impose

a 'strict' construction on the penal statute. . .

. . . [T]he violation of a penal statute

is not to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as 'substantially'

on a scale suitable for evidence as the penalty does on the scale of penalties.

In other words, in a world ensnarled by false assumptions and hasty judgments, let the prosecutor's proof be as serious-minded as the intended penalty is serious.

Based upon the foregoing Findings of Fact and Conclusions of Law, with regard to the standards of proof set forth in the Bowling decision quoted above, it is

RECOMMENDED:

That a Final Order be entered by the Division of Real Estate dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 24th day of February, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

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 24th day of February, 1984.

COPIES FURNISHED:

Tina Hipple, Esquire

400 West Robinson Street Orlando, Florida 32801

John Snow, Esquire Pinebrook Park, Suite 132 9600 South Tamiami Trail Fort Myers, Florida 33907

Mr. Ralph Snyder

9113 Mocking bird Drive Sanibel, Florida 33957

Harold Huff, Director Division of Real Estate Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002038

Orders for Case No: 82-002038