STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-3957

)

DONNA JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on December 3, 1987, at Tampa, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

For Respondent: Not present or represented.

By Administrative Complaint filed August 4, 1987, the Department of Professional Regulation, Division of Real Estate, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Donna Jones, Respondent. As grounds therefor it is alleged that Respondent operated as a real estate salesman without a valid license and is guilty of fraud, misrepresentation, false pretenses, and dishonest dealing in a business transaction.

Respondent was not present at the time scheduled for the hearing to commence. At the request of the Hearing Officer, the attorney for Petitioner telephoned Respondent who, it was reported, advised that she thought the hearing was on December 4, 1987. This hearing was initially scheduled to be held December 4, 1987, by Notice of Hearing dated September 17, 1987. This date was changed by this ORDER AMENDING DATE OF HEARING, dated October 30, 1987. Both the Notice of Hearing and the Order amending were mailed to the same address of Respondent and neither was returned as undelivered.

After waiting a reasonable time for Respondent to appear, the hearing commenced. Thereafter Petitioner called three witnesses, and seven exhibits were admitted into evidence. Proposed findings 1-5 submitted by Petitioner relating to the status of the license of Respondent are rejected as unsupported by the evidence; all other proposed findings are accepted.

FINDINGS OF FACT

1. Respondent was licensed as a real estate salesman in November 1979, and renewed her license as required until some time prior to October 12, 1987.

   
   

2. A certified copy of Respondent's license record was admitted into evidence as Exhibit 1. The computer printout dated 10/12/87 shows Respondent's license as delinquent (voluntary inactive). It shows she is licensed as a salesman with license effective 11/19/84. On the same line showing 'delinquent' but several spaces therefrom is "renewal period: 2 FEE $.00". On the same line with "license effective" is "RECOVERY FEE PD $.00." Below these lines is Respondent's name below which appears "INVALID." Below which is a "%FRIEDEL BETTE L." and below this is "HOME ADDRESS," presumably that of Respondent.

   
   

3. A review of the other documents in Exhibit 1 shows:

   
   

   1. Notification of License Change dated 2/28/83.

   2. A Request for License or Change of Status, undated, with date stamp "received June 15, 1984, Florida Real Estate Commission". This document does not indicate action by the Real Estate Commission on this request.

   3. A copy of a marriage certificate.

   4. Notification of License Change dated 6/26/84. No action indicated by the Florida Real Estate Commission.

   5. A Request for License or Change of Status dated 7/12/84 apparently notifying the Commission of a change in brokers. This document is stamped "Validated and Effective September 4, 1984."

   6. An unreadable photocopy of a computer printout similar to that in Finding No. 2 above dated 11/30/84 showing license effective 09/04/84. Below that is hand printed "Cancellation of Certificate as listed below effective date 11/19/84. Reason MIC (or M/C). Batch 2717."

   7. Request for License or Change of Status dated 4/23/86. No action on request is shown by the Commission.

   8. An undated Request for License or Change of Status received 12/30/86 by Florida Real Estate Commission.

      
      

4. No other evidence (other than hearsay) was presented regarding Respondent's license. No copy of any license issued to Respondent is contained in Exhibit 1, and the only document showing Respondent is unlicensed is that computer printout discussed in Finding No. 2 above.

   
   

5. In 1985, Respondent and her husband entered into a contract to purchase realty from Mr. and Mrs. Scalo. OMB Form No. 2502-0059, a Veterans' Administration Request for Verification of Employment Form, forwarded to Coldwell Banker Real State office, was signed by the Assistant Manager 11/29/85 certifying that Respondent was employed by Coldwell Banker (Exhibit 6). In the

   VA Financial Statement (Exhibit 7) submitted by Respondent and her husband, she shows under "employment record" that she worked as a real estate salesman for Coldwell Banker from 3/85 to 11/15/85, the date on Exhibit 7.

   
   

6. In purchasing the residence from Scalo, Respondent represented that she was employed as a real estate salesman by Coldwell Banker. In this purchase, Respondent assumed the first mortgage from Scalo, as well as executing a second and third mortgage held by Scalo. To protect himself from Respondent and her husband failing to pay the first mortgage, Scalo provided in the contract that Respondent and her husband would verify payment of the first mortgage when they made the monthly payment on the mortgages held by Scalo.

   
   

7. Respondent failed to provide such assurance the first month after the transaction cleared and was reminded of the requirement by Scalo. Thereafter for the next four months, Respondent notified Scalo that the first mortgage payments had been made. This was false and known by Respondent to be false. The fraud on Scalo was discovered when he was notified by the bank holding the first mortgage that the Jones were delinquent in the mortgage payments from

   February through July, and that payment in excess of $5900.00 was needed to stop the bank from initiating foreclosure proceedings. One of the checks payable to the bank holding the mortgage signed by Respondent (Exhibit 4) was dishonored by the payor for insufficient funds and was not made good by Respondent.

   
   

8. Michael Good, Chief Operations Officer at Coldwell Banker, testified without contradiction that Respondent worked as a sales associate at Coldwell Banker from May 24, 1985 until April 23, 1986.

   
   

9. On October 2, 1985, Ronald Pike submitted an offer to purchase property in Brandon, and Respondent signed the offer as broker. She also signed the earnest money release agreement dated February 26, 1986, as broker. On another transaction involving Pike, a $5,000.00 earnest money deposit was given by Pike to Respondent. The transaction failed to close, and Respondent did not return the deposit after demand was made by Pike.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Petitioner has the burden to prove, by clear and convincing evidence , the allegations here made. Turlington v. Ferris, 510 So.2d (Fla. 1987).

    
    

12. The only evidence presented in these proceedings regarding the license status of Respondent is Exhibit 1. While that Exhibit shows Respondent's license to be currently involuntarily inactive, that computer printout is dated October 12, 1987. The illegible printout in Exhibit 1 is dated 11/30/84, but even the licensee's name on this copy of the printout is illegible. This is not clear and convincing evidence that during the period in 1985 that Respondent worked as a real estate salesman and/or broker, she did not have a current license.

    
    

13. With respect to the charge that Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence and breach of trust in a business transaction, the evidence is clear and convincing that Respondent and her husband defrauded Scalo in failing to make first mortgage payments while claiming such payments had been made and in uttering a worthless check to

    satisfy one month's mortgage payment. Each of these is clearly a business transaction. Similarly, failure to account for the deposit received from Pike is also indicative of fraud in a business transaction.

    
    

14. From the foregoing it is concluded that Petitioner has failed to prove that Respondent operated as a real estate salesman and/or broker without a current license as alleged, but that Respondent is guilty of fraud, misrepresentation, false promises, dishonest dealing by trick, scheme, or device, and breach of trust in a business transaction. It is

RECOMMENDED that the license of Donna Jones as a real estate salesman and/or broker be revoked.

ENTERED this 15th day of December, 1987, in Tallahassee, Florida.

K. N. AYERS 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 15th day of December, 1987.

COPIES FURNISHED:

Steven W. Johnson, Esquire Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

Donna Jones

15807 Countrybrook

Tampa, Florida 33614

Darlene F. Keller

Acting Executive Director Division of Real Estate Department of Professional

Regulation

400 West Robinson Street Orlando, Florida 32802

Tom Gallagher Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-003957

Orders for Case No: 87-003957