STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-1973

) MALCOLM LEWIS HARDY AND ) AQUATIC REALTY, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly designated Hearing Officer, on September 11, 1987. The appearances were as follows:

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

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32801

For Respondents: Diane Cleavinger, Esquire

300 East 15th Street Panama City, Florida 32405

This cause arose upon an Administrative Complaint filed by the Petitioner wherein it is alleged that the Respondents violated Subsection 475.25(1)(b), Florida Statutes, in essence by committing acts of misrepresentation, fraud, dishonest dealing by trick, scheme or device, and the other forms of proscribed conduct enumerated therein, by allegedly failing to account and deliver a forfeited rental deposit to one Ross D. Knight, and by allegedly failing to make a bona fide effort to locate a tenant for the property owned by Mr. Knight.

The cause came on for hearing as noticed, after one agreed upon continuance. At the hearing the Petitioner presented two exhibits which were admitted into evidence, and the Respondents adduced one exhibit which was admitted. The Petitioner presented the testimony of Ann Carrigan, and the Respondents presented the testimony of Respondent Malcolm Lewis Hardy, Richard Wiseman and Ann Carrigan. Additionally, the Petitioner sought to submit the deposition of Ross Knight, taken September 8, 1987, immediately prior to hearing. The deposition was excluded by the Hearing Officer on the basis that it had not been attended by Respondents' counsel because Petitioner had not afforded Respondents' legally sufficient notice of the deposition. Upon the exclusion of the deposition from evidence on this basis, at the outset of the hearing, Petitioner's counsel sought leave for additional time to take the deposition after having afforded adequate notice to Respondents. The Petitioner

was therefore accorded fourteen days post-hearing to take the deposition. Subsequent to the hearing, a "Motion to Clarify Ruling" was filed by Respondents on the basis of Petitioner's counsel's assertion to her that she should schedule the deposition. Although the Hearing Officer's ruling at hearing clearly envisioned the Petitioner, who sought to have the deposition admitted, being required to schedule the post-hearing deposition, in the manner provided for in the Florida Rules of Civil Procedure, nevertheless the Hearing Officer entered an Order on September 22, 1987, clearly indicating to Petitioner that Petitioner had the duty to schedule the deposition with adequate notice to Respondents.

Thereafter, on October 19, 1987, Petitioner filed a "Notice to Hearing Officer" requesting that the record be held open until November 2, 1987, for the taking of Mr. Knight's deposition, thus in effect requesting an extension of time on the Hearing Officer's previous ruling which had allowed the record to be held open for the deposition. Respondents' counsel filed a formal objection to that extension of time for deposing Mr. Knight and the Hearing Officer, finding that the "Notice" in which the extension of time was requested, was filed almost a month after the original two week extension; and some two weeks after the parties conferred and disagreed concerning the extending the time available for taking of the deposition, concluded that the motion (Notice) was untimely. No further leave was granted for the taking of the deposition. The record herein was accordingly closed on November 4, 1987.

The parties elected to have the proceedings transcribed and at the conclusion of the hearing availed themselves of the right to file Proposed Findings of Fact and Conclusions of Law. The Respondents timely filed Proposed Findings of Fact and Conclusions of Law in the form of a Proposed Recommended Order. The Petitioner elected not to file Proposed Findings of Fact and Conclusions of Law subsequent to the hearing. The time constraints of Rule 28- 5.402, Florida Administrative Code, were waived.

The issue to be resolved in this proceeding concerns whether the Respondents have committed the wrongful conduct alleged in the Complaint; if so, which, if any, of the violations of Subsection 475.25(1)(b), Florida Statutes, charged have been established, and if so, what if any penalty is warranted in accordance with Section 475.25, Florida Statutes.

FINDINGS OF FACT

1. The Respondent, Aquatic Realty, Inc., is a licensed corporate real estate brokerage in the State of Florida, holding license number 0236839. That corporate broker has conducted an active practice since licensure in 1984 through the present time. The Respondent, Malcolm Lewis Hardy, is the sole stockholder of Aquatic Realty, Inc. and is the corporate president. He is also a licensed real estate broker in the State of Florida, holding license number 0407021. The Petitioner is an agency of the State of Florida, charged under the provisions of Chapter 475, Florida Statutes, with regulating the entry of real estate brokers and salesmen into the profession of real estate sales and brokerage and with enforcing the practice standards for those licensed professionals embodied in Chapter 475.

   
   

2. In approximately September 1985, Ann Carrigan notified the Petitioner that she was practicing under her Florida real estate sales license with Aquatic Realty, Inc. She began to work there as a real estate salesperson charged with management of Aquatic's rental management program. Her primary duties at times pertinent hereto, in April through August 1986, involved management of various rental properties for clients of the corporate brokerage including securing

   tenants for those properties. She left her employment with Aquatic Realty, Inc., in approximately August 1986.

   
   

3. In approximately early May 1986, Ross D. Knight contacted Aquatic Realty, Inc., by telephone and was directed to Ms. Carrigan by the receptionist in Aquatic's office. Mr. Knight owned a house at 6601 Pine Drive, Panama City Beach, Florida. He wished to rent that house for six months to a particular type of tenant. It was Mr. Knight's practice to live at his home in Canada for approximately six months of a given year. No specific agreement was reached between Knight and Ms. Carrigan at the time of the telephone call as to any contractual terms for Aquatic's services in regard to the attempted rental of his property. Later in May 1986, Ms. Carrigan, on behalf of Aquatic Realty, entered into an oral agreement with Mr. Knight to rent his residential property for a period of six months to one Steve Dobbs, who had previously been approved by Mr. Knight as an acceptable tenant.

   
   

4. Pursuant to this oral arrangement, Aquatic Realty, Inc., received ten percent of the rents collected as remuneration for its services. There was no other agreement established regarding how performance was to be rendered by Aquatic or how Aquatic would be compensated, should a tenant fail to perform obligatory terms of any rental agreement and consequently forfeit his or her deposit. Likewise, there was no agreement regarding which party would bear the expenses incurred for the maintenance of the property. The Knight agreement was made with very little formalization between Ms. Carrigan and Mr. Knight at the point in time she procured the tenant, Steve Dobbs. The actual payment term was based upon the brokerage disclosure statement contained in the Dobbs' lease agreement. Until that time, no contract existed between Aquatic Realty, Inc., and Mr. Knight. Since the property involved was the Knights' personal residence and since they wished to continue living in the property during the winter months when they were not in Canada, they were quite concerned about the quality of potential tenants for their property. In this connection, they were still living in the house in May 1986, when Mr. Dobbs signed his lease with Aquatic Realty, Inc., and they personally approved him as a tenant. The lease term ran from May 1986 through November 1986. Upon Dobbs' entering into his lease with Aquatic, he paid a $450 security deposit to Aquatic, which was placed in Aquatic's escrow account to be held throughout the term of the lease.

   
   

5. Mr. Dobbs failed to perform the terms of his lease and was relieved of his contract concomitantly forfeiting his $450 deposit in June 1986. Ms. Carrigan informed Mr. Knight of the forfeiture by phone, since he was residing in Canada at the time. He did not demand payment of any monies at that time. He did not inquire when he could expect his portion of the deposit money or inquire concerning how the forfeited deposit would be apportioned. He merely

   requested that Ms. Carrigan attempt to secure a tenant for his house. There was no further discussion at this time of any contractual terms regarding Aquatic's services, should it find a new tenant for the Knight property. Ms. Carrigan accordingly continued to attempt to rent the property.

   
   

6. When Mr. Knight had departed for Canada in June 1986, he left Ms. Carrigan a key to the house and a set of deposit slips for her to use to deposit his share of any rents collected from the Dobbs' lease into his bank account in Panama City. Up until early August when she terminated her employment with Respondent, Ms. Carrigan attempted to rent the property and would periodically inspect the property to ensure that it was maintained in appropriate condition. Ms. Carrigan was unable to secure a tenant because she could not arouse much interest in potential tenants in the six month lease term required by the Knights. The usual tenant in the Panama City Beach area is interested in short-

   term rentals on a weekly or monthly basis or alternatively a lease for a term of a year or more. In fact, the majority of tenants at that time of year in Panama City Beach are short-term lessees consisting mostly of tourists visiting the beach during the main tourist season. Potential tenants were further limited because of the Knights' restrictions on the type of lessee they desired. They did not want any short-term tenants nor tenants who might be wont to hold rowdy parties in their residence since they wanted the property maintained in good condition in view of their use of it for their personal residence for a significant portion of each year. They had communicated these desires and restrictions on the selection of potential tenants to Ms. Carrigan.

   
   

7. She ceased her attempts to locate a tenant when she left the Respondents' employ in August 1986. She took with her the items that Aquatic would need in order to perform its agreement with Knight. She took the key and the bank deposit slips which had been left to her by Mr. Knight and did not inform either Respondent of her actions. Although she attempted to explain her retention of the key to the house, she did not explain her retention of the Knight account deposit slips. If she had not been intending to continue representing Knight, she had no use for either item. Mr. Knight was apparently aware that Ms. Carrigan had both the key and the deposit slips since he did not ask the Respondent to return them and went directly to Ms. Carrigan to obtain possession of them at a later time.

   
   

8. Mr. Knight did not discuss his property or the contract terms with anyone but Ms. Carrigan during the pertinent rental period. Ms. Carrigan had not discussed the Knight agreement with Respondent Lewis Hardy and did not discuss it with him or Mr. Knight when she left Aquatic Realty. At no time were any discussions or negotiations held between Knight and Lewis Hardy. In fact, Knight and Hardy had never personally conferred or met until October 25, 1986. Mr. Hardy had no way to contact Mr. Knight since he refused to leave his phone number or an address where he could be reached. Mr. Hardy had no information on Mr. Knight in his office files because Ms. Carrigan had taken that information concerning the Knight transaction with her when she left the Respondents' employ. When Mr. Knight began calling just prior to October 25, 1986, Mr. Hardy began investigating as to who he was. He learned through his office receptionist that there had been a rental contract on the Knights' property which had been breached and that there was a forfeited deposit by the breaching tenant remaining in his escrow account under Knight's name. It was only at this time that he realized that Knight was entitled to a portion of that deposit.

   He, therefore, surmised what Mr. Knight had attempted to contact him about. He discovered that Aquatic did not have a property management agreement with Mr.

   Knight but only the pro forma agreement discussed earlier.

   
   

9. Since he had no agreement in his records concerning the issue of a forfeited security deposit and believing that Aquatic was legally entitled to compensation for its services performed with regard to the Dobbs' lease, Mr. Hardy, in an attempt to be fair, decided to follow the accepted method of practice in the real estate industry in the Panama City area concerning the manner of distribution of forfeited deposits. Since he had no formal agreement or management contract with Mr. Knight, he felt it was reasonable to follow the accepted method of distribution of forfeited escrow funds outlined in the "Board of Realtors Exclusive Right of Sale Contract" prevailing in the industry in the Panama City area (see TR page 49). The method of distribution provided for in this standard contract called for an equal split of the forfeited deposit amount, which totalled $450. Thus, on October 25, 1986, Mr. Hardy wrote Mr. Knight an escrow account check for $225, which was one-half of the escrow security deposit forfeited by Mr. Dobbs. Respondent Hardy left the check in

   that amount with his receptionist for Mr. Knight to obtain if he should call concerning the check or come in the office. Mr. Knight came to Aquatic's office shortly thereafter and received the check and asked to speak to Mr. Hardy.

   
   

10. This was the first and only contact between Knight and Mr. Hardy. Their meeting lasted less than five minutes, during which Mr. Hardy accounted to Mr. Knight for the deposit money and explained his reasons for the manner in which the funds were apportioned. He explained to Mr. Knight that, based upon the prevailing "Exclusive Right of Sale Contract," which was the basis for his decision, that he was entitled to keep one-half of the forfeited deposit and was therefore paying Mr. Knight the other half. Mr. Knight then inquired, "Is that the best you'll do?" Mr. Hardy replied, "Yes, I think it's fair," whereupon Mr. Knight made no objection to the accounting, took his check and left the office. At no point did he indicate that he felt the division of the funds was wrong or incorrect or that he was due more money. No demand for further accounting or additional funds was ever made and he gave Mr. Hardy no indication which would leave the Respondent with the impression that he was dissatisfied with the accounting. The testimony of Mr. Hardy regarding these facts was corroborated by the testimony of Mr. Wiseman, who was present in the room during that meeting and established that he was in a position to hear the pertinent portions of the conversation. Mr. Knight cashed that check and received the proceeds therefrom and never again contacted Mr. Hardy.

    
    

    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 (1985).

    
    

12. The Petitioner has alleged that the Respondents violated Subsection 475.25(1)(b), Florida Statutes, concerning misrepresentation, fraud, dishonest dealing by trick, etc., on the part of a broker by:

    
    

    1. Failing to account and deliver a forfeited rental deposit to Ross D. Knight, and;

    2. Failing to make a bona fide effort to locate a tenant for the property owned by Ross D. Knight.

13. Subsection 475.25(1)(b) provides in pertinent part: "(1) The Commission may deny an application

    for licensure, registration, or permit, or

    renewal thereof; 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 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, misrepresenta-

    tion, concealment, false promises, false pretenses, dishonest dealing by trick, or breach of trust in any business transaction in this state or any other state, nation, or territory;

    
    

14. The Petitioner did not allege that the Respondents were guilty of that portion of Section 475.25(1)(b) concerning violation of a duty imposed upon them by law or by the terms of a listing contract. Likewise, the Board did not allege that Respondents were guilty of any escrow violations under Section 475.25(1)(d).

    
    

15. The wrongful conduct charged and enumerated in Subsection 475.25(1)(b) concerning fraud, misrepresentation, dishonest dealing by trick, false pretenses, breach of trust, false promises is charged to have arisen from the same conduct and factual transaction and, in essence, constitutes the same cause of action herein. In order for the charges to lie and be established, the Petitioner must adduce competent, substantial evidence of some false statement or representation of a specific material fact; that the Respondent had knowledge that the representation was false; that the Respondent intended that Mr. Knight rely on that false representation; and that Mr. Knight indeed relied on that falsehood.

    
    

16. The record in this case is devoid of any evidence from which it could be inferred that either Aquatic Realty, Inc., through its agent, Ms. Carrigan, or Respondent Lewis Hardy himself, intentionally made any statement of fact, representation or promise to Mr. Knight which was false or which the Respondents represented to be true. Instead, the record establishes that the Respondents performed their agreement, through their agent, in good faith and were unaware of any problem or potential dispute until the meeting with Mr. Knight on October 25, 1986, in Respondent's office. Even then, Mr. Knight never clearly indicated that he did not agree with the disposition of the deposited funds and never thereafter made demand upon the Respondents for any additional accounting or funds. No discussion was had between Respondent Hardy and Mr. Knight on that only occasion when they discussed the matter, which could evince any misrepresentation to Knight by Mr. Hardy nor intent by Hardy that Knight rely on any misrepresentation. In fact, Mr. Hardy informed Mr. Knight of what he felt was a fair division of the forfeited deposit funds and carried out that division in Mr. Knight's presence, gave him his portion of the funds, which check Mr. Knight cashed, obtaining the proceeds thereof, without making any further demand on the Respondents.

    
    

17. The record is simply devoid of any competent, substantial evidence which could demonstrate the requisite, fraudulent intent or scienter on the part of either of the Respondents. See Brod vs. Jernigan, 188 So.2d 575 (Fla. 2nd DCA 1966). Scienter is defined in that decision as consisting of knowingly doing an act or signifying guilty knowledge. Respondent Hardy never dealt with Knight in any fashion, until the alleged rental contract or lease had been breached by the tenant and was terminated. He was under the good faith belief that neither he nor Aquatic Realty, Inc. had ever had any agreement regarding forfeited security deposits with Mr. Knight. Aquatic Realty, Inc., can only be held to have the knowledge of its agents, Mr. Hardy and Ms. Carrigan. It is clear from the evidence of record that both agents had an honest belief that there was no contract involving the security deposits. It is also clear that Ms. Carrigan performed her part of the agreement. In fact, she rented the premises and continued to attempt to rent the property and protect the interest of Mr. Knight when the first tenant breached the lease, which event occurred

    through no fault of the Respondents. By the time Ms. Carrigan left the employ of the Respondents, the rental term which Mr. Knight desired and had entered into with Mr. Dobbs was more than half expired and could not be carried out because Mr. Dobbs had breached the lease and left possession of the premises. That agreement was between Mr. Knight and Mr. Dobbs. The fact that the agreement could no longer be carried out did not occur through any fault of Ms. Carrigan, Mr. Hardy or Aquatic Realty, Inc. Mr. Knight himself had specified conditions and terms and the particular, "preapproved" tenant himself. Ms.

    Carrigan and Aquatic Realty, Inc., had secured the acceptable tenant in accordance with her oral agreement with Mr. Knight as agent of Respondent Aquatic Realty, Inc. Mr. Knight was never guaranteed a tenant, and the Respondents had no authority or responsibility to change the rental terms or tenant conditions Mr. Knight had specified himself.

    
    

18. A mere dispute concerning a contract, without more, does not raise itself to the level of conduct which can be the subject of disciplinary action and certainly cannot constitute fraud, misrepresentation, false promises, dishonesty or false pretenses. A mere dispute concerning terms and obligations by parties to a contract is a manner properly countenanced by the civil courts in a cause of action arising under a contract theory. Such a dispute, here one involving forfeited deposit funds, in the nature of liquidated damages, is clearly not a matter for disciplinary action against the professional license of parties situated as the Respondents. As stated by the Court of Appeals for the Second District in the Brod decision:

    
    

    "... fraud cannot be predicated on statements which are promissory in their nature, or constitute expression of intention and an actionable representation cannot consist of mere broken promises, unfulfilled predictions or expectations, or erroneous conjectures as to future events, even if there is no excuse for failure to keep the promise, and even though a party acted in reliance on such promise; nor, is the mere nonperformance of a promise evidence establishing fraud or lack of intent to perform. Id. 579"

    
    

19. Such facts, without more, do not demonstrate the knowledge required and do not, without more, support any inferences of such guilty knowledge. Brod, supra. If the contrary were true, every contract dispute could result in a prosecution for fraud, etc.

    
    

20. Concealment is similar to the conduct discussed above, however, concealment is an act of omission or nondisclosure while the above conduct described is of an act of commission. The essence of concealment is:

    
    

    1. The Respondents' nondisclosure of some material fact which they have knowledge of and have a duty to disclose.

    2. Respondents' intent that the nondisclosure mislead Knight into a course of action he would not otherwise take had the fact been revealed;

    3. That Knight followed that course.

       
       

21. Petitioner presented no evidence of any concealment of a set of facts which the Respondents had a duty to disclose to Knight and which were material

    to Knight's interest in this matter. Moreover, there was no evidence that the Respondents knew of any such facts. The evidence reveals that Knight embarked on his course of conduct in dealing with Ms. Carrigan, in specifying the terms and conditions of the rental and the type of tenant desired, etc., before the Respondents had ever heard of Mr. Knight. He called the Respondents' office and requested their services in attempting to secure a tenant and appeared himself to be quite familiar with the Panama City Beach area, the nature of the tourists and short-term tenants available in the area (which he desired to avoid), and he accordingly placed restrictions on the type of tenant he would select and which Ms. Carrigan could successfully provide him. The lease term was selected by him since it reflected the period of time he did not live in the house. Ms.

    Carrigan did not know how forfeited deposits were to be divided. The subject was never broached by either Mr. Knight or Ms. Carrigan nor by Respondents.

    
    

22. Since this was a novel situation involving an oral agreement between Mr. Knight and Ms. Carrigan and since Mr. Hardy was not informed of Mr. Knight's status as a client of Ms. Carrigan or Aquatic Realty until October 1986, no one involved in the transaction, and particularly the Respondents, had taken a position concerning disposition of the forfeited deposit until October 25, 1986. There was therefore nothing to disclose and nothing to conceal. Likewise, there was no evidence presented demonstrating the required scienter or guilty knowledge on the part of the Respondents. The Respondents' conduct simply does not rise to the level of actionable conduct for disciplinary purposes under the above statutory provisions.

    
    

23. Culpable negligence in a business transaction differs from the previously discussed conduct in one element. That element is knowledge. Culpable negligence is described as somewhat less than full, cognizant knowledge or intent to do an act, but where the person charged with the conduct at issue is under more than a duty of ordinary care which a reasonably prudent person would exercise. Culpable negligence involves a willful or wanton disregard of the consequences of one's conduct of a degree that would warrant imposition of punitive damages in a civil action. The character of the negligence involved must be gross and flagrant, evincing reckless disregard of the rights or safety of others. It has been held to amount to an entire want of care which would raise a presumption of conscious indifference to consequences or reckless indifference to the rights of others, which is equivalent to intentional violation of them. See Glaab vs. Caudill, 236 So.2d 180 (Fla. 2nd DCA 1970); Carraway vs. Revell, 116 So.2d 16 (Fla. 1959), conformed to 123 So.2d 400 (Fla. 1st DCA 1959).

    
    

24. No evidence has been presented by the Petitioner which can demonstrate culpable negligence on the part of the Respondents or indeed of Ms. Carrigan, as their agent. The evidence instead showed the Respondents dealt in a forthright, good faith manner with Mr. Knight. They performed their part of the agreement, through their agent, Ms. Carrigan, by procuring tenants and by inspecting and insuring maintenance of the property. This was a difficult rental situation because there was no great interest in Mr. Knight's house because of the peculiar terms and types of tenant he required, which circumstances were in the direct control of Mr. Knight and not the Respondents. The Respondents, through Ms. Carrigan, clearly made reasonable and good faith efforts to secure a tenant, secured that tenant and made reasonable efforts to secure a replacement tenant, even though the vague terms of the oral agreement between Ms. Carrigan and Mr. Knight did not make it clear that there was any obligation to seek a replacement tenant. There clearly is no evidence of any agreement concerning future services or future performance between Knight and the Respondents. Petitioner's

    allegation that the Respondents failed to make a bona fide effort to rent the subject property has clearly not been established and in fact the contrary is true.

    
    

25. In summary, at best the evidence shows that Mr. Knight had a contract dispute over interpretation of whatever oral agreement he had with Aquatic Realty or its agent. In the absence of a specific agreement, as is apparent from the record, Knight's dispute must center on what is reasonably due Aquatic Realty for the services it rendered. In either event, an agency is not empowered to interpret contracts or determine civil disputes. Such issues can only be determined and resolved by a court of competent jurisdiction. Peck Plaza Condominium vs. Division of Florida Land Sales and Condominiums, 371 So.2d

    152 (Fla. 1st DCA 1979); Fleischman vs. Department of Professional Regulation,

    441 So.2d 1121 (Fla. 3rd DCA 1983). The Fleischman decision is certainly controlling in the situation at bar. The Fleischman decision involved a licensee and a potential lessee who were negotiating for a parcel of property owned by the licensee. The potential lessee gave Respondent Fleischman a security deposit. There was no agreement on the refundability of the deposit. Both parties ultimately claimed the deposit. The potential lessee complained to the Petitioner herein and the Florida Real Estate Commission instituted disciplinary proceedings. The Court of Appeals for the Third District, confronted with the issue of disciplinary proceedings arising out of a contractual dispute between the complaining witness and the Respondent licensee, opined:

    
    

    "It is well settled, on the one hand, that absent clear legislative authorization to the contrary, violation of mere contractual rights are concerns only for the courts and may not be enforced by disciplinary action undertaken by a regulatory agency like the real estate commission. Id. at 1122-1123."

    
    

26. Here the Petitioner failed to meet its burden of proof. The Petitioner certainly has no authority to discipline Respondents concerning interpretation of a contract, written or oral, express or implied. The allegations of the Administrative Complaint have simply not been established.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the Administrative Complaint filed against Respondents, Malcolm Lewis Hardy and Aquatic Realty, Inc., be dismissed in its entirety.

DONE and ENTERED this 22nd day of December, 1987, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1987.

COPIES FURNISHED:

Arthur R. Shell, Jr., Esquire Department of Professional

Regulation

Division of Real Estate Past Office Box 1900 Orlando, Florida 32801

Diane Cleavinger, Esquire

300 East 15th Street Panama City, Florida 32405

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Darlene F. Keller, Acting Director Division of Real Estate

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

Docket for Case No: 87-001973

Orders for Case No: 87-001973