STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2891

) FRANK R. JANSEN and LILLIAN ) LaCRAMPE, )

)

Respondents. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on April 7 and 8, 1983, in Clearwater, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on a two-count Administrative Complaint filed by the Florida Real Estate Commission against the Respondents, Frank R. Jansen and Lillian LaCrampe. Count I of the Administrative Complaint relates to the Respondent Jansen and alleges that Jansen failed to register as a broker, deposited escrowed monies to his personal account, participated in a real estate transaction in which his mother was a principal and in which he failed to identify her as his mother, collected and paid himself a commission which he was not due for the rental of a condominium, and did not have the required real estate broker's sign in his office. Count II of the Administrative Complaint relates to the Respondent LaCrampe, now Lillian Soave, and alleges that LaCrampe failed to properly register as a real estate salesperson, improperly altered a contract, improperly received $5,000 in a transaction, and failed to identify herself as a real estate salesperson in a real estate transaction.

APPEARANCES

For Petitioner: Tina Hipple, Esquire

Department of Professional Regulation

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

For Respondents: Frank R. Jansen, pro se

108 Harbor Drive Post Office Box 247

Ozona, Florida 335601

Lillian LaCrampe Soave, pro se

114 Harbor Drive Post Office Box 247

Ozona, Florida 33560

ISSUES

The issues presented in This case are whether the Respondents committed the acts alleged in the Administrative Complaint and whether such acts constitute a violation of the statutes.

Petitioner submitted post hearing findings of fact in the form of a proposed recommended order To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Respondent, Frank R. Jansen, is a broker salesman holding license number 0317199.

   
   

2. The Respondent, Lillian LaCrampe, now Soave, is a real estate salesperson holding license number 0137930.

   
   

3. In June 1980, Jansen held an individual broker's license in the State of Florida. In late summer of that year, he entered into an agreement with Flora Harwood, a licensed broker in the State of Florida and owner of Select I Realty. Under this agreement, Jansen and Harwood would form a corporation and participate in a brokerage company under the name Select I Realty, in which Jansen would open and operate a branch office of Select I Realty. The exact details of the corporation and the division of shares were not worked out between the parties; however, Harwood undertook to have a corporation formed the name Jansen and Harwood, Inc., and two attempts were; made to register Jansen as a broker with Jansen and Harwood, Inc., doing business as Select I Realty.

   These applications were rejected by the Florida Real Estate Commission for various reasons, to include the requirement that a corporation operate only in the corporate name and the failure of the applicants to submit corporate papers. The incorporation and application to the Commission were handled by Flora Harwood's attorney. The last denial of the application was on October 22, 1980.

   
   

4. During the period the applications were being filed with the Commission, Harwood became disenchanted with the idea of the corporation because of her perception that Jansen was not cooperating with her. Therefore, after the second application was denied, Harwood did not take action to timely file a third application. Although Jansen was aware of the denial of the application, the evidence does not show that he was aware that Harwood delayed the third application.

   
   

5. By the end of 1980, Jansen and Harwood had both independently abrogated their agreement, and shortly thereafter Jansen left the business totally. Until he left, Jansen continued to actively manage the branch office of Select I Realty, which he had established and organized and from which he conducted his real estate business as a broker for Jansen and Harwood, Inc.

   
   

6. The policy of the Florida Real Estate Commission with regard to applications is that the applicant may operate if a license application is not returned. If the application is returned for correction and corrected and resubmitted timely, the applicant may continue to operate. If the application is not returned in a timely fashion, the applicant may not work.

7. The failure of Jansen and Harwood to eventually incorporate, followed by the severance of their business relationship, intensified the conflict between them, out of which several of the allegations of the Administrative Complaint arose.

   
   

8. On September 5, 1980, the Respondent LaCrampe contracted to buy for herself Lot 3 of Ozona Shores from Preston and Grace King. On January 5, 1981, LaCrampe closed the transaction with the Kings. At that closing, a check for

   $825 in commissions to Select I Realty was disbursed by the closing agent to the Respondent Jansen. Jansen deposited said check to his personal account.

   
   

9. Flora Harwood asserted a claim to a share of the commission on the purchase of the property by LaCrampe. When Harwood discovered that this sale had occurred, she checked with the closing agent and found that a commission check had been paid to Jansen. She further discovered that Jansen had deposited this check to his personal account, and because the check was made out to Select I Realty Harwood had the bank take action to collect the $825 and pay it to her, which the bank did.

   
   

10. Harwood's claim to the $825 was based upon an office policy applicable to employees which required that commissions on real estate purchases for investment purposes by employees of Select I Realty be shared with the office. However, this contract closed on January 5, 1981, after the relationship between Jansen and LaCrampe had been severed with Harwood. The competing claims between Jansen and Harwood to the $825 in commission are part of the severance of the business relationship between two persons operating as co-brokers. Testimony was received that in the operation of the branch office Jansen had authority to receive checks, deposit checks, and write checks.

    
    

11. On or about December 10, 1980, Jansen participated in the rental of a condominium by Eugene Donahue from Glen and Mary Mitchell. The rental contract incorporated an option to purchase. Said rental contract required that Donahue pay $400 per month, $50 of which was a maintenance fee. Jansen received the first check from Donahue in the amount of $400, negotiated the check, and received a bank check in the amount of $350 payable to Glenn Mitchell and $50 in cash. It is asserted in the Administrative Complaint that Jansen received the

    $50 in cash as a commission payment to which he was not entitled. However, Respondent's Exhibit numbered 4 reflects that Glenn and Mary Mitchell here in arrears on their maintenance payment in the amount of $49.75, and the policy of Coachman Creek Condominium Association was not to grant any approval of lease or sales contracts until all maintenance payments were up to date. Respondent's Exhibit numbered 4 shows that approval of the subject rental contract was granted when Jansen produced the late payment.

    
    

12. Several allegations of the Administrative Complaint relate to real estate transactions in which the Respondents Jansen and LaCrampe were involved with Heinz Lehman and allege fraud and misrepresentation arising from failure of Jansen to identify LaCrampe as his mother to Lehman. The first occasion on which Lehman met the Respondents was when Lehman visited a store in a strip shopping center which Jansen was selling as a broker. Lehman testified that Jansen identified LaCrampe at that time as a real estate associate and his "girl Friday." Lehman's testimony revealed that he knew LaCrampe was a real estate salesperson and an associate of Jansen but did not know that LaCrampe was Jansen's mother until after their series of transactions had occurred. Lehman did not buy the strip store but later purchased a condominium through Jansen and then sold it through Jansen after fixing it up.

13. In November 1980, Lehman contracted to purchase Lot 3 of Ozona Shores (see paragraph 8 above) from LaCrampe. On January 5, 1981, after LaCrampe had purchased the property, she in turn sold the property to Lehman on the same day.

    
    

14. In November 1980, prior to entering into the contract for the purchase of Lot 3, Lehman had visited Ozona Shores and had looked at several pieces of property. Thereafter, Jansen presented him with the opportunity to purchase Lot

1. The evidence is clear that Jansen never identified Lot 3 on the, ground or by plat to Lehman. Lehman purchased the property without a survey and without reference to any plat. After he had purchased the property, Lehman found that Lot 3 was not tie lot which he though it was. At a later date, after being unable to finance a house on this property for speculative purposes, Lehman let the lot, 90, back to LaCrampe.

   
   

   1. On or about January 22, 1981, Jansen visited Florence Smith, who was interested in selling a house which she owned at 1550 Laura Street, Clearwater, Florida. Without obtaining a listing contract, Jansen thereafter advised Smith that he had a potential purchaser. On January 29, 1981, Smith contracted to sell her house to LaCrampe for nothing down and a $37,000 mortgage payable to Smith. Thereafter, Smith determined that she would prefer a balloon note, and LaCrampe agreed to a balloon note if the price were reduced to $36,000, to which Smith agreed. This slightly reduced the monthly payments to Smith. On February 12, 1981, LaCrampe contracted to sell this property to Lehman for $5,000 down, assumption of the second mortgage to Smith, and payment of a $1,400 commission by Lehman to Jansen. LaCrampe obtained modification of her contract with Smith to permit LaCrampe to assign her contract to purchase. In this transaction, Jansen did not identify LaCrampe as his mother or as a real estate salesperson and his associate. Jansen did not explain to Lehman that the money which Lehman paid down was to be paid to LaCrampe.

      
      

   2. On or about March 10, 1982, Leo Huddleston, an investigator for the Department of Professional Regulation, visited Jansen's office at the address at which Jansen was registered. Huddleston did not find the required sign at the office identifying it as that of Frank Jansen, a real estate broker. At that time, Jansen had registered as broker for Suncoast Investments and Realty, Inc., and was renting office space with telephone-answering and secretarial services in an office suite complex. Although the building directory listed the suite as the office of Jansen as a real estate broker, the office suite did not have Jansen's real estate brokerage sign. When this matter was brought to Jansen's attention, an appropriate sign was provided.

      
      

   3. In November 1980, the Respondent LaCrampe was licensed as a real estate salesperson with Jansen and Harwood, Inc.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Florida Real Estate Commission has authority to discipline its licensees under the provisions of Chapter 475, Florida Statutes. This Recommended Order is entered pursuant to the authority of Section 120.57-, Florida Statutes.

      
      

   5. At the commencement off the hearing, the allegations contained in Paragraph 26 of the Administrative Complaint were dropped.

      
      

   6. The Administrative Complaint charges the Respondent Jansen with violation of Section 475.42(1)(a), Florida Statutes, and thereby with violation of Section 475.25(1)(a), supra, by failing to regster as a broker and by

      operating as a broker without being properly licensed. The facts reveal that Jansen attempted to register as a broker with Jansen and Harwood, Inc., pursuant to the agreement between Jansen and Flora Harwood. The record reflects that two applications for Jansen's brokerage license were filed. It is the policy of the Florida Real Estate Commission to permit a broker or salesperson to operate as a broker or salesperson with a pending application. It is further the policy of the Commission to permit an applicant to operate as a broker or salesperson if he or she responds in a timely fashion to requests by the Commission for additional information. In this case, the first application was filed, as was a timely response to the request for additional information. The lack of response to the rejection of the application on October 22, 1980, was not the responsibility of Jansen but was the responsibility of Harwood, whose attorney had filed the two previous applications The record reflects that Harwood delayed further filing of the application because she was uncertain as to whether she wanted the corporation formed and the joint brokerage treated The record does not show that Jansen had knowledge of Harwood's delaying of the application. It was Harwood's failure to reapply and establish the co-brokerage which resulted in Jansen's leaving and severing his business relationship with Harwood. Under these circumstances, and, given the Commission's policy, Jansen did not intentionally and with knowledge violate the provisions of Section 47542(1)(a) and Section 475.25(1)(a), Florida Statutes

      
      

   7. Concerning the allegations that the Respondent Jansen deposited in his personal account $825 received as a commission to Select I Realty, the evidence reveals that this transaction tool place after the severance of the business relationship between Jansen and Flora Harwood. The record further reflects that Harwood's for a portion of the commission arose out of an office policy for employees. It is clear from the record that Jansen did not view himself as an employee of Jansen and Harwood, Inc., but as co-broker with Harwood. The record reflects that Jansen had authority to disburse monies and receive monies for Jansen and Harwood, Inc. Under these circumstances, Jansen's conduct is not a violation of Section 475.25(1)(d), Florida Statutes, but more appropriately a civil matter arising out of the severance of the business relationship between Jansen and Harwood.

      
      

   8. Concerning the allegation that the Respondent Jansen violated Section 475.25(1)(d), Florida Statutes, by deducting; $50 from the check received from Donahue, the record does not reflect that Jansen received the $50 as a commission as alleged in the Administrative Complaint. The record reflects that Jansen paid $49.75 to the condominium association in order to obtain the association's approval of a lease agreement and transfer of property from the Mitchells to Donahue. There is no violation of Section 475.25(1)(d) , Florida Statutes.

      
      

   9. Concerning the allegation that the Respondent Jansen violated Section 475.25(1)(d), Florida Statutes; by failing to identify the Respondent LaCrampe as his mother in transactions with Lehman, this is a very close legal question. Lehman's testimony revealed that he was advised and knew that LaCrampe was a real estate salesperson and close associate ("girl Friday) of Jansen. Given this information on his part, the question becomes whether Lehman's lack of knowledge that LaCrampe was Jansen's mother was germane to Lehman's purchase and enjoyment of the property. The close business/personal relationship and special knowledge which LaCrampe possessed as a real estate salesperson would outweigh any personal considerations of the familial relationship between Jansen and LaCrampe In Santaniello v. Department of Professional Regulation, Case No 82- 1518 decided April 15, 1983, the Second District Court of Appeal ruled that the failure by a broker to identify to a buyer that the purchaser was his mother-in-

      law fell within the purview of this statute. However, in that situation the mother-in-law was not identified as a professional associate and a real estate salesperson, as occurred in this instance. Because this information was revealed, and because Lehman as aware of this information which would outweigh any familial relationship and put Lehman on notice of a potential conflict, there was no violation of Section 475.25(1)(b) , Florida Statutes.

      
      

   10. Concerning the, allegations that the' Respondents violated Section 475.25(1)(b), Florida Statutes, in the transaction with Lehman concerning Lot 3 in Ozona Shores, two issues are raised. The first issue is the personal interest of LaCrampe in the lot, and the second regards the identification of the lot itself The evidence shows that Lehman looked at several lots and was impressed with Lot 5. Thereafter, he was presented with an opportunity to buy Lot 3 and purchased Lot 3 without a survey or reference to a plat. There was no evidence that Jansen represented to Lehman that Lot 3 was Lot 5. Had Jansen represented to Lehman that Lot 3 was the lot with which Lehman had been impressed, there would have been a violation; however, the record falls short of showing this. There was no violation of section 475.25(1)(b), Florida Statutes.

       
       

   11. Concerning the Respondent LaCrampe's interest in the property, the record reflects that she contracted to buy lot 3 in September 1980 before Lehman was introduced to the property. By the time Lehman purchased the property, he was aware that, LaCrampe was a real estate salesperson and a close associate of Jansen. As stated above, the familial relationship of LaCrampe with Jansen was not germane to the purchase or to Lehman's enjoyment of the property. There a was no violation of Section 475.25(1)(b), Florida Statutes.

       
       

   12. Concerning the allegation of violation of Section 475.25(1)(b), Florida Statutes, in the transaction on 1550 Laura Street, the Respondent Jansen found out about the Laura Street property being available for sale and obtained a contract on it, and he thereafter introduced Lehman to the property, which LaCrampe had contracted to buy. Jansen failed to identify LaCrampe as an associate or as his mother to Smith, and Jansen and LaCrampe kept Lehman from being aware that LaCrampe was involved in this transaction. Further, the Respondents concealed the fact that the money which Lehman paid as a dawn payment was really a purchase of LaCrampe's option to purchase the property. This was an intentional act on the part of the Respondents, which is a violation of Section 475.25(1)(b), Florida Statutes.

       
       

   13. Concerning the allegations that the Respondent Jansen violated Rule 2IV-10.24, Florida Administrative Code, and thereby Section 475.25(1)(e), Florida Statutes, by failing to have a proper sign in his office, the record reflects that Jansen did not have the required sign but that, when this was pointed out, it was immediately corrected. This was a technical violation of Rule 2IV-10.24, Florida Administrative Code, and Section 475.25 (1)(e), Florida Statutes.

       
       

   14. Contrary to the allegation that the Respondent LaCrampe failed to properly register in violation of Section 473.42(1)(a), Florida Statutes, the record reflects that she was registered as a salesperson with Jansen and Harwood, Inc. , in November 1980.

RECOMMENDATION

Having Found the Respondent, Frank R. Jansen, in technical violation of Rule 2IV-10.24, Florida Administrative Code, an thereby Section 475.25(1)(e), Florida Statutes, it is recommended that Jansen receive a cautionary letter.

Having found the Respondents, Frank R. Jansen and Lillian LaCrampe, now Soave, guilty of one violation each of Section 475.25(1)(b), Florida Statutes, it is recommended that their licenses be suspended for a period of one year.

DONE and RECOMMENDED this 16th day of August, 1983, in Tallahassee Leon County, Florida.

STEPHEN F. DEAN, 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 16th day of August, 1983.

COPIES FURNISHED:

Tina Hipple, Esquire

Department of Professional Regulation

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

Mr. Frank R. Jansen

108 Harbor Drive Post Office Box 247

Ozona, Florida 33560

Ms. Lillian LaCrampe Soave

114 Harbor Drive Post Office Box 247

Ozona, Florida 33560

Frederick Roche, Secretary

Department of Professional Regulation

130 North Monroe street Tallahassee, Florida 32301

William M. Furlow, Esquire

Department of Professional Regulation

400 West Robinson Street

================================================================= AGENCY FINAL ORDER

================================================================= STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION

Petitioner,

vs. CASE NO. 0013099

0017680

FRANK R. JANSEN and 0021257

LILLIAN LaCRAMPE DOAH NO. 82-2891

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on October 18, 1983 to issue a Final Order.

Hearing Officer Stephen Dean of the Division of Administrative Hearings presided over a formal hearing on April 7 and 8, 1983. On August 16, 1983, Hearing Officer Dean issued a Recommended Order. Said Recommended Order is attached hereto and made a part hereof as Exhibit A.

On or about September 9, 1983, the Petitioner filed Exceptions to Recommended Order. Said Exceptions are attached hereto and made a part hereof as Exhibit B.

Based upon Exhibits A and B, a review of the record, and the statements made at the October 18 1983 meeting of the Florida Real Estate Commission, the Florida Real Estate Commission rejects the Recommended Order Findings of Fact, Conclusions of Law and Recommendation, to the extent they are in conflict with Petitioner's Exceptions. The Florida Real Estate Commission accents Exhibit B in total.

Based upon this complete review of the record, the Florida Real Estate Commission increases the penalties recommended in Exhibit A.

The Florida Real Estate Commission ORDERS that the license of Respondent Jansen be revoked.

The Florida Real Estate Commission ORDERS that the license of Respondent LaCrampe (now Soave) be suspended for two (2) years. Respondent LaCrampe (now Soave) may not resume real estate activities until her petition for reinstatement is approved by the Florida Real Estate Commission

This Order shall become effective thirty(30) days after the date of filing with the Clerk of the Department of professional Regulation.

DONE AND ORDERED this 18th day of October in Orlando, Florida.

Brian J. Ladella Chairman Florida Real Estate Commissions

CERTIFICATE OF SERVICE

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

U.S. Mail to: Frank R. Jansen, P O Box 247, Ozona, Florida 33560; to Lillian LaCrampe, P O Box 247, Ozona, Florida 33560; to Hearing Officer Stephen Dean, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to Staff Attorney Tina Hipple, Dept. of Professional Regulation, P O Box 1900, Orlando, Florida 32802, this 30th day of November, 1983.

Harold R. Huff, Director

Docket for Case No: 82-002891

Orders for Case No: 82-002891