STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 86-0885

)

EDWARD G. THOMPSON )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held in Gainesville, Florida, on June 22, 1986, before Hearing Officer, Mary Clark.

APPEARANCES

For Petitioner: Susan Hartmann, Esquire

Department of Professional Regulation Division of Real Estate

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

For Respondent: Ronald R. Clark, Esquire

Post Office Drawer V Palatka, Florida 32077

BACKGROUND

By its Administrative Complaint dated January 28, 1986, Petitioner alleges that real estate broker, Edward G. Thompson, is guilty of a violation of subsection 475.25(1)(b) Florida Statutes by representing to purchasers of a lakefront lot that the water frontage was 84 feet when it was in fact 33 feet in length. At the final hearing Petitioner's exhibits #1-10 were received into evidence without objection. Petitioner's witnesses were Earl Wallace, qualified as an expert in land surveying and the complainants, Mr. and Mrs. White.

Respondent submitted exhibits #1-3 and called three witnesses, including himself.

After the hearing both parties submitted proposed recommended orders.

These have been considered in the preparation of this order and specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

1. At all times material, Edward G. Thompson was licensed as a real estate broker in the State of Florida, having been issued license number 0190143 in

   accordance with Chapter 475, Florida Statutes. (Respondent's answer, Petitioner's Exhibit #1) His place of business is Red Thompson Realty Inc., State Road 20, Post Office Box 260, Interlachen, Florida 32408. (Respondent's Answer)

   
   

2. In July 1983, Phillip and Dorothy White from Jacksonville, Florida, contracted to purchase a lot on Mirror Lake in Putnam County for a vacation residence. Edward Thompson was the broker for the sale. He and his partner, James Meyer, owned the lot and property surrounding it and they were in the process of creating a subdivision on the lake. (tr-73, 93, Petitioner's Exhibit #4)

   
   

3. The configuration of the White's lot, lot 3-A, Mirror Lake, is elongated and stretches from a roadway. Tapering down into the lake in a modified pie-slice shape. That is, there is less frontage on the water than along the roadway. (Petitioner's Exhibit #2, Respondent's Exhibits #3 and #4) On the day that Respondent showed the lot to the Whites, he and Mr. White paced the water frontage as close as they could get to the water, given the thick vegetation; the distance was approximately 84 feet. (tr-32, 52-53, 110) Back at the real estate office, Mr. Thompson gave the Whites a drawing of the lot prepared by Terry Short, a draftsman who did the initial design concept and layout of the subdivision. This drawing clearly indicates 84 feet of water frontage. (tr-32-33, 72-73, Petitioner's Exhibit #3) The White's relied on the fact that the property had this much frontage in deciding to purchase the lot. (tr-36,56,65)

   
   

4. The sale to the Whites closed on August 1, 1983, at which time the White executed a Contract for Deed. (Petitioner's Exhibit #9, Respondent's Answer)

   
   

5. Sometime in January 1985, when the Whites were clearing an area near the water, the adjacent lot owner came over to explain that they were on her property and showed them the survey markers. (tr-33, 48)

   
   

6. The Whites hired a surveyor, Earl Wallace, who completed his survey on June 10, 1985. The Wallace survey of the White's lot shows 33 feet of water frontage at the ordinary high water line. (Petitioner's Exhibit #2)

   
   

7. Sometime after the closing on the Whites property, the survey of the entire subdivision was completed. (tr-94) Mr. Thompson claims that it was mailed to Mr. White; Mr. White denies that he received it. (tr-33,82,113,119-

   120) The survey obtained by the Whites and the subdivision survey are consistent in their depiction of the White's lot. Both indicate approximately 84 feet between the two survey markers that arc closest to the water front; they both show the water line a distance from those markers with less than 84 feet of lake frontage. (Petitioner's Exhibit #2, Respondent's Exhibits #1 and #3, Tr-24)

   
   

8. The difference between the water frontage depicted on the drawing given to the Whites and the subsequent surveys is substantially due to a fluctuation in the Mirror Lake water level. When the adjacent lot owner bought her lot in early 1983, the concrete marker was in soggy ground, near the water. Now the water has receded considerably. (tr-104,105) The lakes in that area fluctuate widely in response to rain or drought. (tr-15,16,89,108) Because of its wedge shape, the water frontage of the White's lot increases or decreases with the level of the lake.

9. Edward Thompson is not an engineer or surveyor and relied on Terry Short to draw an accurate depiction of the property. Short held himself out as an engineer and maintained an office in the same building as Thompson Realty. (tr-72,73) Mr. Thompson saw him designing other plats and houses and after paying him for his services, relied on his professionalism. (tr- 116, 117)

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Subsection 120.57(1) Florida Statutes and Section 455.225(4) Florida Statutes

    
    

11. Respondent is charged with violation of subsection 475. 25 (1)(b) Florida Statutes, which provides in pertinent part:

    
    

    1. The Commission ... may suspend a license or permit for a period not exceeding ten years; may revoke a license or permit; may impose an administrative fine not to exceed $1,000.00 for each count or separate offense; and may issue a reprimand, or any

       or all of the foregoing, if it finds that the licensee, permittee, or applicant:

       (b) Has been guilty of fraud, misrepresen- tation, concealment, false promises, false pretenses, dishonest dealing by trick scheme, device, culpable negligence, or breach of

       trust in any business transaction in this state...

       
       

12. The Petitioner has the burden of proving that the Respondent committed the violations as alleged. Balino v. Department of Health and Rehabilitative Services, 348 So.2nd 349 (Fla App 1st DCA, 1977)

    
    

13. Petitioner failed to prove its case by preponderance of evidence, and moreover failed the stricter standard of proof imposed in licensing cases such as this. See Bowling v. Department of Insurance, 394 So.2nd 165 (Fla App 1st DCA, 1981)

    
    

14. No evidence was adduced to show that Edward Thompson knew or should have known that the White's lot, when he sold it to them, had less than 84 feet of water frontage. He relied in good faith on the representation of his subdivision designer and he and the purchaser paced what they thought was the water front length of the property. There is competent evidence from the adjoining lot owner that, indeed, in 1983 the lake level was high and the drawing relied upon by both seller and buyers was substantially accurate.

Based upon the foregoing, it is hereby, RECOMMENDED:

That a Final Order be entered dismissing the Administrative Complaint against Edward G. Thompson.

DONE AND RECOMMENDED this 8th day of September, 1986, in Tallahassee, Florida.

MARY CLARK

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 8th day of September, 1986.

APPENDIX

The following constitute my specific rulings on the parties' proposed findings of fact.

Rulings on Petitioner's Findings:

1. Adopted in Paragraph 1.

2. Adopted in substance in Paragraphs 2 and 3.

3. Adopted in substance in Paragraph 3.

4. Rejected as irrelevant.

5. Adopted in paragraph 4.

6. Adopted in paragraph 5.

7. Adopted in Paragraph 6, as to the Whites having the survey done; however the statement that Respondent never had the property surveyed is contrary to the weight of the evidence.

8. Adopted in paragraph 6.

9. Rejected as irrelevant.

Rulings on Respondent's Findings:

1. Adopted in Paragraph 2.

2. Rejected as unnecessary.

3. Adopted in Paragraphs 3 and 9.

4. Rejected as irrelevant. (see Section 475.25(1)(b) regarding damages)

5. Adopted in substance as a conclusion of law, paragraph 4.

6. Rejected as unnecessary.

7. Adopted in substance in paragraph 8.

8. Rejected as unnecessary.

9. Adopted in part in paragraph 5 and in conclusion of law, paragraph 4.

COPIES FURNISHED:

Susan Hartmann, Esquire Department of Professional Regulation

Division of Real Estate

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

Ronald R. Clark, Esquire Post Office Drawer V Palatka, Florida 32077

Docket for Case No: 86-000885

Orders for Case No: 86-000885