STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-3993

)

1. EMALINE JONES, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, an Administrative Hearing was held before William R. Cave, Hearing Officer with the Division of Administrative Hearings on December 7, 1987, in Lake City, Florida. The issue for determination is whether Respondent's license as a real estate salesman should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

   
   

   APPEARANCES

   
   

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

   Department of Professional Regulation, Division of Real Estate Post Office Box 1900

   Orlando, Florida 32801

   
   

   For Respondent: William J. Haley, Esquire

   Post Office Box 1029

   Lake City, Florida 32056-1029 BACKGROUND

   By an Administrative Complaint dated July 31, 1987 and filed with the Division of Administrative Hearings on September 10, 1987, Petitioner seeks to revoke, suspend or otherwise discipline Respondent's license as a real estate salesman in the State of Florida. As grounds therefor, it is alleged that Respondent failed to present an offer of purchase from a potential buyer to the seller's earlier counteroffer which resulted in the seller accepting a lower price for the property and losing approxi- mately $3,000.00 in violation of Section 475.25(1)(b), Florida Statutes.

   
   

   In support of its charges, Petitioner presented the testi- mony of John W. Hearne, Wilhelmina Hearne, Jack T. Endfinger, Jackie E. Taylor, Katrina Blalock and Sandra Sherman. Petitioner's exhibits 1 through 4 were admitted into evidence. Respondent testified on her own behalf. Respondent's exhibits 1 through 4 were admitted into evidence.

   Upon Petitioner resting its case, the Respondent moved for a directed verdict. Ruling was reserved on the motion and after reviewing the argument of counsel and the record in this cause the motion for directed verdict is DENIED.

   
   

   Respondent submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order. Petitioner has failed to timely submit any posthearing Proposed Findings of Fact and Conclusions of Law.

   
   

   FINDINGS OF FACT

   
   

   1. Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found;

      
      

   2. At all times material to this proceeding, Respondent, M. Emaline Jones was a licensed real estate salesman in the State of Florida, license number, 0045290, and an associate with Crown Real Estate, Inc., (Crown) now known as Daniel Crapps Agency, Inc. (Crapps).

      
      

   3. On January 20, 1987, John W. Hearne and his wife, Wilhemina Hearne (Hearne) went to the office of First Florida Realty and Auction (First), and met with Jackie Taylor and Jack Endfinger. On that same day, Endfinger showed Hearne the property owned by Sandra Sherman that was listed in the Multiple Listing Service (MLS) with Crapps as the listing agency.

      
      

   4. On January 21, 1987, a contract for the purchase of the Sherman property at a purchase price of $52,900.00 was executed by Hearne with an addendum requiring owner financing attached. Endfinger, as agent for Hearne with authority to deliver the contract, delivered the contract with the addendum attached to Respondent at Crapps around 4:00 p.m.

      
      

   5. On January 21, 1987, another contract for the purchase of the Sherman property at a purchase price of $45,000.00 was executed by Al and Shirley Williams and submitted to the Respondent by another associate of Crapps.

      
      

   6. On January 21, 1987, Respondent reviewed both con- tracts with Katrina Blalock, Office Manager for Crapps.

      
      

   7. Both contracts along with an expense settlement statement for each contract were presented to, and reviewed with, Sherman by both Blalock and Respondent on January 21, 1987.

      
      

   8. Both contracts were rejected by Sherman. The Williams contract was rejected mainly due to price. The Hearne contract was rejected due to price and the requirement of owner financing. Sherman authorized Respondent to make a counteroffer with a pur- chase price of $55,000.00 to Williams only. Respondent had no authority from Sherman to make, or accept, a counteroffer to, or from, Hearne. Because of her and her late husband's relationship with Williams, Sherman wanted Williams to have the property if they could come to terms.

      
      

   9. Upon being advised by Respondent of Sherman's rejection of the Hearne contract, Endfinger contacted Hearne and a counteroffer with a purchase price of

      $55,000.00 and third (3rd) party financing was executed by Hearne. There is insufficient evidence to establish whether Endfinger verbally advised Respondent of this contract or its terms prior to Sherman entering into a contract for sale with Williams. The contract was never physically delivered to Respondent or anyone else at Crapps at anytime.

   10. Either on January 21 or January 22, 1987, Williams, after reviewing Sherman's counteroffer of $55,000.00, made an offer of $52,000.00 which was accepted by Sherman. A contract with the new terms was executed on January 23, 1987, but Williams was unable to fulfill the contract and Hearne eventually purchased the Sherman property for $52,500.00.

       
       

   11. Subsequent to Sherman and Williams reaching an agree- ment on the property, Endfinger called Respondent, and upon being told of the agreement, told Respondent that Hearne would have given $55,000.00, but did not elaborate on the terms of the second contract executed by Hearne.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   13. Section 475.25(1), Florida Statutes empowers the Florida Real Estate Commission (Commission) to revoke, suspend or otherwise discipline the license of a real estate salesman if she is found guilty of any one of those enumerated acts listed in Section 475.25(1)(a-p), Florida Statutes.

       
       

   14. Section 475.25(1)(b), Florida Statutes provides in pertinent part as follows:

       
       

       (b) Has been guilty of fraud, misrepre- sentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or devise, culpable negli- gence, or breach of trust in any business transaction...has violated a duty imposed upon him by law or by the terms of a list- ing contract, written, oral, expressed, or implied, in a real estate transaction....

       
       

   15. In a disciplinary proceeding, the burden is upon the agency to establish facts upon which the allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). The Petitioner has failed to sustain its burden of proof.

RECOMMENDATION

Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is,

RECOMMENDED that the Commission enter a Final Order DISMISSING the Administrative Complaint filed herein.

Respectfully submitted and entered this 13th day of January, 1988, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 13th day of January, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3993

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 Respondent in this case.

Petitioner failed to timely submit any posthearing Proposed Findings of Fact and Conclusions of Law.

Rulings on Proposed Findings of Fact Submitted by the Respondent

The Respondent's Proposed Findings of Fact were set out in eight (8) unnumbered paragraphs which for purposes of this Appendix I have numbered 1 through 8.

1. Adopted in Findings of Fact 2 and 3 but clarified.

2. Adopted in Findings of Fact 4, 5 and 6 but clarified.

3. Adopted in Finding of Fact 7.

4. The first sentence of paragraph 4 is rejected as not being material or relevant. The balance of paragraph

   4 is adopted in Finding of Fact 8.

5. The last sentence of paragraph 5 is rejected as not being material or relevant. The balance of paragraph

   5 is adopted in Findings of Fact 7 and 9.

6. Adopted in Findings of Fact 8 and 10 but clarified.

7. Rejected as not supported by substantial competent evidence in the record.

8. Adopted in Finding of Fact 9.

COPIES FURNISHED:

Darlene F. Keller, Acting Director Division of Real Estate

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32801

Arthur R. Shell, Jr., Esquire Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32801

William J. Haley, Esquire Post Office Box 1029

Lake City, Florida 32056-1029

Docket for Case No: 87-003993

Orders for Case No: 87-003993