STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4350

) LARRY L. TONEY, t/a LARRY )

1. TONEY REALTY, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal hearing was conducted in this case on February 25, 1988, at Jacksonville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented by the following counsel:

   
   

   For Petitioner: James H. Gillis, Esquire

   Division of Real Estate Post Office Box 1900 Orlando, Florida 32802

   
   

   For Respondent: Henry E. Davis, Esquire

   816 Broad Street

   Jacksonville, Florida 32202 ISSUES AND INTRODUCTION

   This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent. By Administrative Complaint it is charged that the Respondent is guilty of a violation of Subsection 475.25(1)(b), Florida Statutes.

   
   

   At the hearing all parties offered exhibits and presented the testimony of witnesses, including the testimony of the Respondent. A transcript of the hearing was filed on March 9, 1988, and the parties were allowed twenty days from that date within which to file their proposed recommended orders. All parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' posthearing submissions have been carefully considered during the formulation of this recommended order. Specific rulings on all findings of fact submitted by the parties are contained in the attached Appendix which is incorporated into this recommended order.

   FINDINGS OF FACT

   
   

   Based on the admissions of the Respondent, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact:

   
   

   1. Respondent Larry L. Toney is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0089521 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Larry L. Toney Realty, Inc., 4629 Moncrief Road West, Jacksonville, Florida 32209.

      
      

   2. At the time of the events described below, Ernest W. Mabrey was the owner of a house located at 3926 Perry Street, Jacksonville, Florida.

      
      

   3. On or about March 3, 1986, the Respondent met with Josephine Watkins, who is the daughter of Ernest W. Mabrey, at her home in Lake Butler, Florida, and advised her and Mr. Mabrey that the property described above, then owned by Mr. Mabrey, was in foreclosure. Ernestine Byrd, another daughter of Mr. Mabrey, was also present.

      
      

   4. An action to foreclose the mortgage on the subject property had in fact been filed at the time the Respondent met with Ernest W. Mabrey and members of his family.

      
      

   5. The Respondent requested that Ernest W. Mabrey sign a warranty deed to evidence the fact that he, Ernest W. Mabrey, had no interest in saving the subject property from the then pending mortgage foreclosure action. Josephine Watkins and Ernestine Byrd discussed the proposed transaction before any papers were signed. Ernest W. Mabrey did not object to transferring the subject property.

      
      

   6. On or about March 3, 1986, Ernest W. Mabrey, as grantor, signed a warranty deed which conveyed the subject property to Emory Robinson, Jr. Mr. Mabrey willingly signed his name to the warranty deed with the understanding that he was releasing his interest in the subject property because he was sick and neither he nor his daughters had the funds necessary to redeem the property. Josephine Watkins helped her father, Mr. Mabrey, write his name on the warranty deed and Ernestine Byrd signed the warranty deed as a witness to her father's signature. At the time the warranty deed was signed, no payments had been made on the mortgage for approximately five years.

      
      

   7. The Respondent did not promise to pay any money to Mr. Mabrey or his daughters in connection with the transfer of the subject property, nor did they expect to receive any money.

      
      

   8. The Respondent did not forge any signatures on the warranty deed described above. All of the signatures on that warranty deed are genuine.

      
      

   9. The grantee in the subject transaction, Emory Robinson, Jr., paid the holder of the first mortgage the sum of $6,787.11 in order to bring the payments to a current status and he assumed the mortgage. The mortgage foreclosure action was then voluntarily dismissed.

      CONCLUSIONS OF LAW

      
      

      Based on the foregoing findings of fact and on the applicable legal authorities and principles, I make the following conclusions of law:

      
      

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

       
       

   11. The Petitioner, Division of Real Estate, is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints as they relate to the practice of the real estate profession. See Section 20.30, Florida Statutes, and Chapters 455 and 475, Florida Statutes.

       
       

   12. The Administrative Complaint in this case charges the Respondent with one count of having violated Subsection 475.25(1)(b), Florida Statutes. Section 475.25(1), Florida Statutes, authorizes the Florida Real Estate commission to take disciplinary action against a licensee if it finds that the licensee:

       
       

       (b) Has been guilty of fraud, misrepre- sentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state or any other state, nation, or territory . . . .

       
       

   13. The specific misconduct alleged in the Administrative Complaint consists of the making of misrepresentations, the procurement of signatures on a blank sheet of paper, and/or the forgery of one or more signatures. In order to prevail in a case of this nature, the Petitioner must prove the alleged misconduct by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Petitioner has failed to meet its burden of proof. To the contrary, the greater weight of the evidence is to the effect that there was no misconduct.

RECOMMENDATION

For all of the foregoing reasons, it is

RECOMMENDED that the Florida Real Estate Commission issue a final order in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 5th day of May, 1988, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 5th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER

The following are my specific rulings on all proposed findings of fact submitted by the parties.

Findings Proposed by Petitioner: Paragraphs 1, 2 and 3: Accepted.

Paragraph 4: First two lines accepted. Last line rejected as not supported by competent substantial evidence.

Paragraph 5: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is rejected as constituting subordinate and unnecessary details.

Paragraph 6: Rejected as contrary to the greater weight of the evidence.

Paragraph 7: Accepted in substance, with additional findings for clarity and completeness.

Paragraph 8: It is accepted that the house was conveyed to Mr. Robinson.

The remainder of this paragraph is rejected as contrary to the greater weight of the evidence or as not supported by competent substantial evidence.

Findings Proposed by Respondent:

All of the findings proposed by the Respondent have been accepted in whole or in substance, except as specifically set forth below. In making my findings of fact, I have omitted a number of unnecessary details proposed by the Respondent.

Paragraph 8: Rejected as constituting subordinate and unnecessary details. Paragraph 18: Rejected as constituting subordinate and unnecessary details.

Paragraph 19: Rejected as subordinate and unnecessary details and as legal argument.

COPIES FURNISHED:

JAMES H. GILLIS, ESQUIRE DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802

HENRY E. DAVIS, ESQUIRE ROBERTS & DAVIS

816 BROAD STREET

JACKSONVILLE, FLORIDA 32202

DARLENE F. KELLER, EXECUTIVE DIRECTOR DIVISION OF REAL ESTATE

POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802

WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

Docket for Case No: 87-004350

Orders for Case No: 87-004350