STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-3349

)

ANNA E. TURNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 26, 1985, in Miami, Florida. A transcript of the proceedings was received by the Division on March 4, 1985.

APPEARANCES

For Petitioner: Sue Hartmann, Esquire

Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

For Respondent: John Bernazzoli, Esquire

4747 Hollywood Boulevard

Hollywood, Florida 33024

ISSUE

The issue presented for decision herein is whether or not the Respondent, by failing to advise a prospective purchaser that the residence he was selling contained a solar water heater which was on lease and that therefore the seller could not sell it with the house, engaged in acts and/or conduct amounting to a concealment, misrepresentation, fraud and dishonest dealing in a business transaction violative of Subsection 475.25(1)(b), Florida Statutes.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings:

1. Respondent is and has been at all times material hereto a licensed real estate salesperson in the State of Florida and has been issued license number 0395102.

2. Respondent, during times material herein, was employed as a real estate salesperson with Caldwell Banker/Clock Company, 7825 Hollywood Blvd., Hollywood, Florida.

   
   

3. On or about July 29, 1983, Respondent solicited and obtained a listing agreement from her brother, Joseph Donnelly, giving exclusive right of sale to the Clock Company Realtors of real estate owned by her brother at 3300 SW 40 Avenue, Hollywood, Florida.

   
   

4. On January 28, 1984, the sellers, Joseph and Betty Ann Donnelly, executed a deposit receipt and contract for sale and purchase of the subject residence at 3300 SW 40 Avenue, Hollywood, Florida to Harlen E. Davison, as purchaser. (Petitioner's Exhibit 2) Mr. Davison was a close friend of the Donnellys and was aware that the solar heater was leased and could not be sold. (Testimony of Anthony Nicola, Petitioner's investigator; Joseph and Betty Ann Donnelly) Specifically, Mr. Davison was aware that the solar heater was under a three-year term lease which was paid and that there was one year remaining on the lease term. (Testimony of J. Donnelly, Tr. page 25, lines 8 through 12) This was related to purchaser Davison prior to the time that he closed the transaction to purchase the subject residence.

   
   

5. Finally, an examination of the profile sheet and market analysis for the subject property reveals that the solar heater was not listed as one of the features for the subject property. (Respondent's Exhibit 1N11)

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. Respondent, a licensed salesperson, is subject to the disciplinary guides of Chapter 475, Florida Statutes.

   
   

9. Insufficient evidence was offered herein to establish that the Respondent engaged in any acts in the sale of the Donnelly residence to Harlen

E. Davison which could logically be construed as misrepresentation, concealment, fraud and/or dishonest dealing in a business transaction in violation of Section 475.25(1)(b), Florida Statutes, as alleged in the administrative complaint signed herein dated August 31, 1984.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the administrative complaint filed herein be dismissed.

RECOMMENDED this 20th day of June, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL

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 20th day of June, 1985.

COPIES FURNISHED:

Sue Hartmann, Esquire Division of Real Estate

400 W. Robinson St.

Orlando, Fla. 32802

John Bernazzoli, Esquire 4747 Hollywood Blvd.

Hollywood, Fla. 33024

Harold Huff Executive Director

Division of Real Estate

400 W. Robinson Street Orlando, Fla. 32802

Salvatore Carpino General Counsel

Department of Professional Regulation

130 N. Monroe St. Tallahassee, Fla. 32301

Docket for Case No: 84-003349

Orders for Case No: 84-003349