STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 85-0321

)

LEWIS BOATMAN, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this cause on September 10, 1985, in Orlando, Florida, before Diane A. Grubbs, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Arthur R. Shell, Jr., Esquire

400 West Robinson Street Orlando, Florida 32801

For Respondent: R. Parkinson, Esquire

602 East central Avenue Orlando, Florida 32801

BACKGROUND

By an Administrative Complaint filed on December 17, 1984, the Department of Professional Regulation alleged that respondent is and was at all times material to the complaint a licensed real estate salesman that on March 16, 1984, a final order revoking the broker s license of respondent s registered employing broker became effective, thereby rendering respondent's license null and void; and that respondent submitted certain documents to HUD between April 16, 1984, and August 2, 1984,l which respondent signed as broker. Based on the allegations of the complaint, respondent was charged with violating section

475.25(1)(b), Florida Statutes section 475.42(1)(b), Florida Statutes, and thereby section 475.25(1)(a), Florida Statutes and section 475.31, Florida Statutes, and thereby section 475.25(1)(a) Florida Statutes.

At the hearing the petitioner presented the testimony of Israel Branton, Jr., William J. Schroeder, Jody Sellers and Linda Nuccitelli. Petitioner's Exhibits Number 1 through 7 were entered into evidence. The respondent testified on his own behalf and presented the testimony of John L. Nuccitelli. Respondent's Exhibits Number 1 through

4 were evidence. The parties were authorized to file late exhibits, and both parties have done so. Petitioner's late exhibit has been numbered 8 and respondent's late exhibit has been numbered 9. Both parties submitted proposed findings of fact and conclusions of law, and a ruling on each proposed finding of fact has been made in the appendix to this order.

FINDINGS OF FACT

1. Respondent is licensed by the Department of Professional Regulation as a real estate salesman having been issued license number 0142776, effective August 27, 1984. Linda J. Nuccitelli is his registered employer. John Nuccitelli was respondent's former registered employer.

   
   

2. In February, 1983, a final order was entered by the Florida Real Estate Commission which revoked the broker's license of John L. Nuccitelli. The final order was appealed, and the District Court of Appeal, Fifth District, stayed the order of Real Estate Commission pending disposition of the appeal. The appellate court ultimately affirmed the order of the Real Estate Commission, and the court's mandate was issued on March 16, 1984. On April 1, 1984, respondent's license was renewed by the Department of Professional Regulation even though John Nuccitelli was named as his employer.

   
   

3. The respondent was notified of the revocation of John Nuccitelli's license and automatic cancellation of respondent's license as a salesman, by letter from the Florida Real Estate Commission dated June 21, 1984. Prior to receipt of that letter neither the respondent nor John

   L. Nuccitelli were aware that the appeal process has been

   completed and the final order revoking Mr. Nuccitelli's broker's license had become effective.

   
   

4. On April 16, 1984, the respondent submitted to the

   U.S. Department of Housing and Urban Development (HUD), on behalf of Israel Branton, an offer to purchase certain property located at 4746 Miramar Road. The offer was set forth on a standard form entitled "Offer to Purchase and Broker's Tender." The form has a space for the signature of the broker and also has a space for the name and address of the broker. The offer to purchase designated "Anchor Realty REALTOR John Nuccitelli" as broker. Respondent signed his name in the space designated "Signature of Broker". The offer was accepted, and a HUD Standard Retail Sales Contract was executed. At the bottom of the contract is a certification to be signed by the broker. Typed in above the line stating "Name of Broker and Phone No" is "Anchor Realty REALTOR John Nuccitelli 305-422-0747." The line below states "By", and is signed "Louis Boatman, Jr. associate." On the Forfeiture of Earnest Money Deposit form, also submitted to HUD in connection with the transaction, respondent's signature is located on the line provided for the signature of the selling broker. A sales/broker's commission of $1,623.00 was paid to Anchor Realty as a result of this sale. (Petitioner's Exhibit No. 3)

   
   

5. On April 27, 1984, respondent submitted to HUD on behalf of Israel Branton an offer to purchase property located at 5019 Columbia Street, Orlando. As in the transaction above, "Anchor Realty REALTOR John Nuccitelli" is named as the broker and respondent signed his name in the space provided for the signature of the broker. The certificate at the bottom of the Standard Retail Sales Contract was executed in the same manner it was on the contract for the property on Miramar, indicating "Anchor Realty REALTOR John Nuccitelli" as broker and signed by "Louis Boatman, Jr. Associate." On the Forfeiture of Earnest Money Deposit form submitted to HUD in connection with the transaction, respondent's signature was located on the line provided for the signature of the selling broker. (Petitioner's Exhibit No. 4).

   
   

6. Israel Branton had known the respondent several years and was aware that respondent was a salesman and not a broker. Judy Sellers of Lawyers' Title Insurance Corporation, who handled the closing on the Miramar

   property, was aware that respondent was a salesman and John Nuccitelli was the broker for Anchor Realty.

   
   

7. John Nuccitelli had given respondent authorization, as his agent, to sign all documents submitted to HUD on his behalf. Mr. Nuccitelli was aware that respondent was a very competent salesman with a thorough understanding of HUD paperwork and procedures. Due to the time restraints involved with HUD sales, respondent sometimes worked until midnight preparing the paperwork that had to be delivered to Tampa the next morning. To avoid having to get up before 5 a.m. to sign the documents himself, Mr. Nuccitelli told the respondent to sign: the documents for him. However, Mr. Nuccitelli was always fully informed about the transactions

   
   

8. The Department of Housing and Urban Development has no objection to a salesman signing on behalf of a broker as long as the broker has authorized the salesman to do so.

   
   

9. On August 2, 1984, respondent submitted to HUD, on his own behalf, an offer to purchase property located at 4777 Pleasant Valley, Orlando. Mr. Schroeder, Chief of the Loan Management and Property Disposition Branch of HUD, Tampa Office, rejected the offer noting on the document that the "OFFER MUST BE SUBMITTED BY A LISCENSED (sic) Broker." Mr. Schroeder had been informed shortly before August 2, 1984, that Mr. Nuccitelli's broker's license had been revoked and that the people who worked for him at Anchor Realty were not legally licensed. The Offer to Purchase had been signed by respondent as applicant and as broker, and it named "Anchor Realty REALTOR" as broker. Respondent indicated Anchor Realty as broker because respondent was still with Anchor Realty, and he filled out the form as he always had. However, he had not been authorized by Linda Nuccitelli to sign as the broker.

   Linda Nuccitelli became the licensed broker of Anchor Realty in August of 1984.

   
   

10. Respondent did not represent to anyone that he was a broker. He never concealed the fact that he was a real estate salesman. He signed the HUD forms in the places for the broker's signature because John Nuccitelli told him that he could do so. At the same time, respondent clearly named "Anchor Realty REALTOR John Nuccitelli" as the broker. Mr. Schroeder, the HUD official who signed

    the contracts, was aware that John Nuccitelli was the broker. Mr. Schroeder indicated that HUD officials don't look at the signature on a form too closely but rely instead on the name that is typed in the appropriate space to determine the broker.

    
    

11. The evidence presented established that respondent did not intend to deceive or mislead anyone and that in fact, no one was deceived or misled.

    
    

12. Respondent has held a real estate license for about 15 or 16 years and has never had a disciplinary action filed against him until the instant complaint.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 475.25, Florida Statutes, provides that the Florida Real Estate Commission "may suspend a license or permit for a period not exceeding 10 years: may revoke a license or permit may impose an administrative fine not to exceed $1,000 for each count or separate offense, and may issue a reprimand, or any or all of the foregoing" if it finds that the licensee has engaged in any of the acts enumerated in that section. One of the enumerated acts is that the licensee "[h]as been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction . . . Section 475.25(1)(b), Florida Statutes.

    
    

15. The evidence presented does not support a conclusion that respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing; culpable negligence, or a breach of trust. When respondent submitted the documents to HUD on behalf of Mr. Branton, he was unaware that Mr. Nuccitelli's broker's license had been revoked. Therefore, he was not misrepresenting or concealing Mr. Nuccitelli's status by naming John Nuccitelli as the licensed broker. Respondent did not name John Nuccitelli as the broker on the August 2, 1984 offer to purchase, but he did name Anchor Realty. Basically, respondent merely filled out his own offer to purchase the same way he had always filled out

    the form. Although this conduct might be labeled negligent, it does not constitute culpable negligence, which involves malice, moral turpitude, wantonness, and willfulness or reckless indifference to the rights of others. Ojus Industries V. Brannam, 351 So. 2d 1055 (Fla. 4th DCA 1977). Therefore, respondent is not guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, culpable negligence, or a breach of trust, and the charges set forth in Count One of the Administrative Complaint should be dismissed.

    
    

16. Count II of the Administrative Complaint charges respondent with violating section 475.42(1)(b), Florida Statutes, which states:

    
    

    (b) No person licensed as a salesman shall operate as a broker or operate as a salesman for any person not registered as his employer.

    
    

    Petitioner contends that since respondent signed his name on the forms in the space provided for the broker's signature, he operated as a broker. However, on the Branton submissions respondent was authorized by his broker to sign for him. The broker was fully informed of the transactions. Therefore, in regard to those transactions, respondent did not operate as a broker but simply operated on behalf of his broker. However, as to the offer to purchase submitted August 2, 1984, respondent operated as a broker. He signed the offer to purchase as the broker without authorization and listed Anchor Realty as the broker even though Anchor Realty was apparently not involved in the transaction. Therefore, respondent violated section 475.42(1)(b), Florida Statutes, and thereby is subject to discipline pursuant to section 475.25(1)(a), Florida Statutes.

    
    

17. Count III charges respondent with operating without a valid license in violation of Section 475.42(1)(a),Florida Statutes, in that respondent's license was automatically cancelled when the license of his employing broker was revoked, effective March 16, 1984. Section 475.31(1) provides:

    
    

    1. An order revoking or suspending the license of a broker shall automatically cancel the licenses of

all salesmen registered with the broker. . . .

John Nuccitelli's license was revoked effective March 16, 1984, when the mandate of the district court was issued. Pursuant to section 475.31, respondent's license was cancelled automatically when John Nuccitelli's license was revoked. However, such cancellation is not effective until notice is provided to the license holder. Respondent did not receive notification until sometime after June 21, 1984. If, indeed, respondent's license was null and void as of March 16, 1984, the license issued by the department, effective April 1, 1984, would have to be considered a reinstatement of the license. However, basic due process requires that an individual be notified that his license has been cancelled before he can be penalized for operating as a salesman "without being the holder of a valid and current license." The license issued to the respondent on April 1, 1984, indicated that it was valid through March 31, 1986. Until notified otherwise, respondent was justified in relying on the terms of the license issued to him. Therefore, respondent was not in violation of section 475.42(1)(a), Florida Statutes, and Count III of the Administrative Complaint should be dismissed.

RECOMMENDATION

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

RECOMMENDED that Counts I and III of the Administrative Complaint be dismissed, that respondent be found to have violated section 475.42(1)(b), Florida Statutes, and that respondent be fined $500 pursuant to section 475.25(1)(a), Florida Statutes.

DONE and ENTERED this 5th day of February, 1986 in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 5th day of February, 1986.

COPIES FURNISHED:

Arthur R. Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

Richard J; R. Parkinson, Esquire 602 East Central Avenue

Orlando, Florida 32801

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Harold Huff, Executive Director Department of Professional

Regulation

Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

APPENDIX

The following constitutes my specific rulings pursuant to section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings On Proposed Findings of Fact Submitted by the Petitioner

1. Accepted in Finding of Fact 1.

   
   

2. Accepted in Finding of Fact 2, except last half of last sentence which is a legal conclusion.

   
   

3. Accepted as modified in Finding of Fact 4.

   
   

4. Accepted as modified in Finding of Fact 5. Last sentence rejected as irrelevant and not supported by the evidence.

   
   

5. Rejected as not supported by the evidence. Respondent signed on behalf of the broker, and clearly signed by respondent as "associate."

   
   

6. Accepted in Finding of Fact 9.

   
   

7. Accepted in Finding of Fact 3.

Rulings on Proposed Findings of Fact Submitted By Respondent

1. Accepted in Findings of Fact 1, 2 and 3.

Docket for Case No: 85-000321

Orders for Case No: 85-000321