STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 85-0118

)

ROY AHRINGER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this case came to be heard on March 29, 1985 in Sebring, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: James Gillis, Esquire

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

For Respondent: Roy Ahringer, pro se

232 Harmony Avenue

Lake Placid, Florida 33852

By Administrative Complaint dated December 14, 1984, Roy Ahringer is charged with fraud, misrepresentation, concealment and breach of trust in a business transaction in violation of Section 475.25(1)(b), F.S., and failure to account for money in making a secret or illegal profit in violation of Section 475.25(1)(d), F.S. At the hearing, Petitioner introduced twelve exhibits and Respondent introduced one. Petitioner called three witnesses to testify including Respondent, and Respondent called three, in addition to testifying on his own behalf. A transcript of the hearing has been filed.

FINDINGS OF FACT

1. Roy Ahringer, hereinafter referred to as "Respondent" has held real estate broker-salesman license number 0158288 at all times material hereto.

   
   

2. From approximately August 15, 1983 to November 20, 1983, and from approximately March 1, 1984 to April 30, 1984, Respondent was licensed and operated as a real estate salesman in the employ of Highlands Holiday Realty, Inc., a licensed brokerage Corporation.

   
   

3. On or about August 11, 1983, Highlands Holiday Realty, Inc., obtained from Mildred M. Haydon, as owner, a six month listing to sell certain property designated as Lot 9, Block 353, Section 26 Lake Placid, at a price of "any reasonable cash offer". By the terms of this listing agreement, the listing would continue beyond the six month period "until this agreement is revoked by a ten day's written notice" delivered by the owner to Highlands Holiday Realty, Inc. There is no evidence that this listing agreement was ever revoked and it remained in effect during the time Respondent was employed at Highlands Holiday Realty, Inc. Respondent was therefore an agent for Mildred

   M. Haydon.

   
   

4. While this listing agreement was in effect, Respondent obtained a sales contract on March 29, 1984, executed by Robert J. and Marjorie P. Mitchell, as purchasers, for the purchase of Mildred M. Haydon's Lot 9 at a total purchase price of $5000. On April 30, 1984, the Mitchells executed two checks totaling $5000 to Highlands Holiday Realty which were to be placed in a trust account for this transaction. The contract was initially prepared omitting the name and address of the seller but was later completed by Respondent by having a secretary at Highlands Holiday Realty Inc. type in the names of Roy Ahringer and May Ahringer as sellers.

   
   

5. On March 31, 1984 Respondent and his wife, May Ahringer, executed a contract for sale and purchase of Mildred M. Haydon's Lot 9 for the purchase price of $2220. Mildred M. Haydon executed this contract for sale and purchase on April 4, 1984. Subsequently this transaction closed and Respondent, with his wife, purchased the subject property for $2220 on or about May 23 or 24, 1984.

6. The evidence presented establishes that Respondent did not explain to the Mitchells or to Mildred M. Haydon that he would be purchasing the property for $2220 from Mildred M. Haydon and then reselling the property to the Mitchells for $5000. Mildred M. Hayden was not informed of the Mitchell's offer of $5000 for her lot prior to her sale of the lot to Respondent. It is Respondent's contention that he told the Mitchells he was having a problem with the lot owner and that he might have to buy it from her in order to be able to resell it to the Mitchells. However, no evidence supporting this assertion was presented by Respondent, and in any event there is no evidence that the Mitchells or Mildred M. Haydon knew about the difference in the purchase and resale prices which would have resulted from this transaction.

   
   

7. When the circumstances surrounding this transaction became apparent to Ronald N. Weisser, broker and owner of Highlands Holiday Realty, Inc., he stopped the Ahringer-Mitchell transaction, and the $5000 paid by the Mitchells for this lot has been returned to them. Respondent still owns the subject property.

   
   

8. Mildred M. Hayden was damaged in an amount of approximately $2780 due to Respondent's failure to present the Mitchells' offer to her. The Mitchells were damaged in an amount equal to the interest they were required to pay on money borrowed for the purchase price during the period when the funds were retained in a non-interest bearing escrow account.

   
   

9. The parties were allowed to submit post-hearing proposed findings of fact pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding has been made either directly or indirectly in this Recommended Order except where such proposed findings of fact have been rejected as subordinate, cumulative immaterial or unnecessary.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative has jurisdiction over the parties and subject matter of these proceedings. Section 120.57(1), F.S.

11. Section 475.25(1)(b) and (d), F.S., provide, in pertinent part, that the Florida Real Estate Commission may discipline a license who:

    
    

    (b) Has been guilty of fraud, mis- representation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state or any other state, nation, or territory; has violated a duty

    imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; . . . It is immaterial to the guilt of the licensee that the victim or intended victim of the mis- conduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim or intended victim was a customer or a person in confidential relation with the licensee or was an

    identified member of the general public.

    * * *

    (d) Has failed to account or deliver to any person, including a licensee under this chapter, at the time which has

    been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, fund,

    deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value, including

    a share of real estate commission, or any secret or illegal profit, or any divisible share or portion thereof, which has come into his hands and which is not his property or which he is not in law or equity entitled to retain under the circumstances. . . .

    (Emphasis supplied)

    
    

12. Petitioner has met its burden of proving by clear and convincing evidence that Respondent has violated the above-cited statute and is therefore subject to license disciplinary action. Bowling v. Department of Insurance,

    394 So.2d 165 (Fla. 1st DCA 1981). The evidence establishes that Respondent breached the trust and confidential relationship that exists between a principal (seller) and agent (real estate broker-salesman) when he concealed the profit which he intended to make from buying and then reselling Mildred Haydon's lot to the Mitchells. His scheme would have resulted in a secret or illegal profit if it had been completed and it did result in actual damage being sustained by both Haydon and the Mitchells.

    
    

13. Chapter 475, F.S., imposes a responsibility upon persons licensed in this state to act in a fiduciary capacity while engaged in real estate transactions. The licensee, as agent, must act in good faith with his principal, in this case the seller Mildred Haydon. The relationship between principal and agent is confidential and it is a most serious violation when an agent breaches his fiduciary duty and seeks to use information gained through that confidential relationship for his own personal gain.

    
    

14. Respondent did not inform his principal, Mildred Haydon about the Mitchells' offer and therefore dealt dishonestly with her when he offered to purchase her lot for less than half of the Mitchells' offer. He also dealt dishonestly with the Mitchells by not informing them of the lesser price at which Haydon was selling the lot to him.

    
    

15. The violations in this case are not merely technical, but go to the primary duty of a licensee acting as an agent for his principal. As such, the penalty to be imposed should be equally severe as Respondent's actions. However there is no evidence that Respondent has repeatedly engaged in this kind of conduct or that this has been a recurring course of conduct. Therefore, revocation is inappropriate in this case. Pauline v. Borer, 274 So.2d 1 (Fla. 1973); Kopf v. Florida Real Estate Commission, 379 So.2d 1327 (Fla. 3rd DCA 1980). Since Respondent has unjustly enriched himself through this transaction by acquiring a lot for half of its resale value, an

administrative fine in addition to a reasonable suspension, is appropriate.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be issued suspending Respondent's license for a period of two

(2) years and imposing an administrative fine in the amount of one thousand dollars ($1000).

DONE and ENTERED this 10th day of June, 1985 at Tallahassee Florida.

Hearings

Hearings

DONALD D. CONN, Hearing Officer Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 10th day of June, 1985.

COPIES FURNISHED:

James Gillis, Esquire Post Office Box 1900 Orlando, Florida 32802

Roy Ahringer

232 Harmony Avenue

Lake Placid Florida 33852

Harold Huff, Executive Director Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-000118

Orders for Case No: 85-000118