STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-0202

)

RALPH B. SNYDER, JR., and )

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 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, Respondents are 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, Respondents are alleged to be guilty of a violation of Sections 475.25(1)(b) and (e), and 475.453(1), Florida Statutes, and Rule 21V-10.30, Florida Administrative Code, by providing false and inaccurate rental information and thereafter failing to make a refund upon demand.

Both counsel for Petitioner and Respondents 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. 008299P. Respondent was the qualifying broker for Home Hunters V, Inc., a corporate real estate broker having been issued license No. 00221795, 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, 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 tenant 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 refer the tenants to other office employees.

   
   

4. On February 13, 1982, Lucille and Whitfield Vye of Canton, Massachusetts, visited the office of Home Hunters V. They were seeking an apartment and visited Home Hunters V in response to an ad they had seen in a local newspaper. After speaking with two other employees in Respondent's office, the Vyes were referred to Greg Howle, the office manager. As a result of the discussions with Mr. Howle, Whitfield Vye signed a rental agreement with Home Hunters V, Inc., and paid a $60 fee to Mr. Howle. The contract signed by Mr. Vye indicated he sought a one- or two-bedroom furnished duplex or apartment that accepted children and pets. Although Mrs. Vye in her testimony indicated that they preferred a ground-floor apartment, there is no indication in the record in this cause that that desire was ever communicated to Mr. Howle. There is nothing in the contract between the parties to indicate that Mr. and Mrs. Vye were limiting their options to a ground-floor apartment. The contract between Home Hunters V, Inc., and the Vyes also provided specifically that:

   If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of

   your full fee paid. If you do

   not obtain a rental you are entitled

   to receive a return of 75 percent of the fee paid, if you make demand within

   30 days of this contract date.

   
   

5. In addition, the contract also provided that ". . . [n]o refunds are made during 30 day period when vacancies can be provided in the area and price range of tenants as indicated in above agreement."

   
   

6. During their meeting on February 13, 1982, the Vyes were furnished the address of a potential rental apartment belonging to a Mrs. Rodberg. Before Mr. and Mrs. Vye left the Home Hunters V office, Mr. Howle placed a telephone call to Mrs. Rodberg, the substance of which conversation is not apparent from the record in this proceeding.

   
   

7. The Vyes proceeded to the address given to them by Mr. Howle. The apartment was located on the second floor of a building, and no one answered in response to their knocks on the door. Mr. Vye then placed a telephone call to the owner of the property, whose telephone number he had been furnished by Home Hunters V. Mr. Vye testified concerning the particulars of Mrs. Rodberg's conversation with him, but the observations made by Mrs. Rodberg to Mr. Vye constitute hearsay, and cannot be used in this proceeding to support a finding of fact. See, Section 120.58(1)(a), Florida Statutes.

   
   

8. When they were disappointed in the nature of the apartment whose address they had been furnished by Home Hunters V, Inc., Mr. and Mrs. Vye returned to the Home Hunters office on Sunday, February 14, 1982. The office was, however, closed.

   
   

9. Subsequently, the Vyes returned to the Home Hunters V office on February 15, 1982, and spoke with Mr. Howle. During this visit, the Vyes asked for a refund, and expressed their dissatisfaction with the apartment they had visited. Mr. Howle advised the Vyes that he would attempt to find them some other rental property, but that he could not refund their deposit for 30 days. Thereupon, the Vyes returned to their Massachusetts home and waited 30 days before writing a series of three letters to Greg Howle requesting a refund of the $60 rental fee. By this time, Mr. Howle had left the employ of Home Hunters V, Inc. The letters sent by the Vyes were addressed to Mr. Howle, and not to either the individual or corporate Respondent in this case. There is no evidence of record to indicate that either of the Respondents ever received notice of the Vyes' request for a refund as contained in the letters they wrote to Mr. Howle.

   
   

10. Thereafter, the Vyes filed a complaint with the Department of Professional Regulation. On May 27, 1982, an investigator from the Department of Professional Regulation advised Respondent Snyder in a telephone conversation of the complaint received from the Vyes. The next day, Respondent Snyder sent the Vyes a refund in the amount of $57.

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 475.25(1)(b), Florida Statutes, authorizes discipline of a real estate licensee who has:

    
    

    Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or

    device . . . or breach of trust in any business transaction. . .

    
    

13. Section 475.25(1)(e), Florida Statutes, authorizes discipline of a licensee who has ". . . [v]iolated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter. . . "

    
    

14. Section 475.453(1), Florida Statutes, provides as follows:

    
    

    Each broker or salesman who attempts to negotiate a rental,

    or who furnishes rental information to a prospective tenant, for a

    fee paid by the prospective tenant,

    shall provide such prospective tenant with a contract or receipt, which contract or

    receipt contains a provision for the repayment of any amount over 25 percent of the fee to the prospective tenant if the prospective tenant does not obtain a rental. If the rental information provided by the broker or the salesman to a prospective tenant is not current or accurate in any material respect, the full fee shall be repaid to the prospective tenant upon demand. A demand

    from the prospective tenant for the return of the fee, or any part thereof, shall be made within 30 days following the day on which the real estate broker or salesman has contracted to perform services to the prospective tenant. The contract or receipt shall also conform to the guidelines adopted by the board in order to affect disclosure of material information regarding the service to be provided to the prospective tenant.

    
    

15. Rule 21V-10.30(1), Florida Administrative Code, provides as follows:

    
    

    Any broker or salesman who attempts

    to negotiate a rental or who furnishes information to a prospective tenant for a fee paid by the tenant shall provide such prospective tenant with a contract or receipt agreement in writing which contract or receipt agreement must

    contain the following provision or legend in type size 10 point bold or larger:

    
    

    NOTICE

    
    

    PURSUANT TO FLORIDA LAW:

    
    

    If the rental information provided under this contract is not current or accurate in any material aspect, you may demand

    within 30 days of this contract date a return of your full fee paid. If you do not obtain a rental you are entitled to receive a return of 75 percent of the fee paid, if you make demand within 30 days of this contract date.

    
    

16. Section 475.42(1)(c), Florida Statutes, 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 salesman. . . ." Section 475.25(1)(a) authorizes disciplinary action against a licensee for violating any provision of Section 475.42, Florida Statutes.

    
    

17. Petitioner has failed to establish by a preponderance of the evidence any of the violations alleged in the Administrative Complaint. In the first instance, there is no competent, credible evidence of record to establish that the rental information furnished to Mr. and Mrs. Vye by Respondents' employee was not current or accurate in any material respect. Clearly the Vyes were dissatisfied with the property located at the address furnished them by Respondents, but they never inspected the property to determine whether it varied in any respect from the information furnished to them pursuant to the rental contract. As a result, Respondents were clearly entitled to retain the deposit pursuant to the terms of the contract for a period of 30 days, rather than making a refund on demand as alleged by Petitioner. Consequently, there has been no showing of any violation of Sections 475.25(1)(b) 475.25(1)(e), or 475.453(1), Florida Statutes. Further, there is no evidence to establish any violation of Rule 21V-10.30, Florida Administrative Code.

    
    

18. Finally, there is no showing in this record that Respondents employed Gregory Howle, an unlicensed person, as a salesman within the meaning of Chapter 475, Florida Statutes. The only acts performed by Mr. Howle, as established by this record, were that he had Mr. Vye sign a rental agreement, accepted a $60 deposit from him, and furnished an address from Respondents' card files for Mr. Vye to visit. In addition, Mr. Howle made a telephone call to a property owner, the substance of which is not clear from the record in this proceeding. It is specifically concluded, as a matter of law, that these acts performed by Mr. Howle are not within the prohibitions contained in Sections 475.42(1)(c) or 475.25(1)(a), Florida Statutes.

Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

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

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 Department of Professional

Regulation - Legal Post Office Box 1900 Orlando, Florida 32802

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

Mr. Ralph B. Snyder 9113 Mockingbird Drive

Sanibel, Florida 33957

Harold Huff, Director Division of Real Estate Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Mr. Fred M. Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000202

Orders for Case No: 83-000202