STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-3010

) JAMES C. CONDRACK, JR., and ) J C C COMPANY AND SON, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida on March 8, 1989 before Arnold H. Pollock, Hearing Officer. The issue for consideration is whether the Respondents' licenses as real estate broker and brokerage corporation, respectively, should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Senior Attorney

DPR, Division of Real Estate Legal Section

Post Office Box 1900 Orlando, Florida 32802

For Respondent: James C. Condrack, Jr., pro se

Post Office Box 182 Sarasota, Florida 34230

BACKGROUND INFORMATION

On May 23, 1988, Tom Gallagher, then Secretary, Department of Professional Regulation, filed an Administrative Complaint in this case alleging that the Respondents were guilty of misconduct in violation of Section 475.25(1)(b), Florida Statutes. Subsequent to service of the Administrative Complaint on him, Respondent James Condrack, on behalf of himself and for J C C Company and Son, Inc., the corporate Respondent, disputed the allegations of fact and requested a formal hearing. On June 16, 1988, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer and on July 5, 1988, the undersigned set the case for hearing on August 9, 1988. However, on August 15, 1988, pursuant to Petitioner's Motion to Hold in Abeyance, the undersigned cancelled the August 9 hearing and placed the case in abeyance pending advice from counsel for Petitioner of the need for further hearing. On October 3, 1988, subsequent to Petitioner's case status report and request for hearing date, the undersigned set the matter for hearing on November 22, 1988

and on November 30, 1988, the undersigned granted the Respondent's Motion for Continuance, agreed upon by the Petitioner, and set the case for March 8, 1989, at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Robert Laney, a certified real estate appraiser, and that of Respondent, James C. Condrack, Jr. Petitioner also introduced Petitioner's Exhibit 1 through 6. Respondent testified in his own behalf but presented no documentary evidence.

Subsequent to the hearing, no transcript was filed. Petitioner submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

Petitioner had been represented prior to hearing by David W. Wilcox, Esquire who, on February 23, 1989, submitted his Motion to Withdraw. Since the motion arrived at the Division of Administrative Hearings too late to hold a hearing on the motion prior to formal hearing, the undersigned reserved ruling on the motion until hearing. At that point, Mr. Wilcox reiterated his motion. Respondent indicated he was willing to release Mr. Wilcox and was willing to proceed pro se. An Order granting the Motion to Withdraw was entered, ore tenus, and followed by a written confirmation thereof.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, the Respondent, James

   C. Condrack, Jr., was licensed in Florida as a registered real estate broker under license number 0140067. Respondent J C C Company and Son, Inc., at all times pertinent hereto, was a licensed real estate brokerage corporation in Florida operating under license number 0215540. Both Respondents operate in Sarasota, Florida at 2831 Ringling Blvd., Suite 202 A.

   
   

2. In addition to his real estate brokerage business, Respondent Condrack also operates a real estate holding company, (Flagship Equity), which holds approximately six properties valued at about one-half million dollars. These properties are all income producing properties which are either straight rentals or are sold on a lease option basis and generate rental income which in some cases, constitutes a slight positive cash flow.

   
   

3. In September and October, 1987, Respondent, Condrack, was seeking to buy several properties in Bradenton, Florida. Two of these were private residences and the third, a multifamily home to be converted into an adult congregate living facility. At the time, Respondent, Condrack, was making the purchases on behalf of his holding company for his personal investments, not as a part of the business of J C C Company and Son, Inc., and was utilizing the brokerage services of Sharon Hendricks, an associate with MacIntosh Realty in Bradenton.

   
   

4. Prior to making an offer on the properties in question, Mr. Condrack indicated he would like to have an appraisal made of them and through Ms. Hendricks, was put in touch with Mr. Robert Laney, owner and operator Key Realty Appraisal, Inc. of Bradenton Beach, Florida.

   
   

5. On September 9, 1987, Mr. Condrack, through Ms. Hendricks, requested that Mr. Laney perform an appraisal on property located at 6008 11th Street East in Bradenton. The appraisal was accomplished and was delivered on September 15, 1987. Thereafter, on October 9, 1987, Respondent requested, again through Ms. Hendricks, that Mr. Laney do an appraisal on property located at 2109 12th

   Street West in Bradenton and this appraisal was accomplished and delivered on October 27, 1987.

   
   

6. On or before October 20, 1987, Respondent Condrack met with Mr. Laney and went through the property with him. At that time, Respondent gave Mr. Laney no criteria for the appraisal nor did he indicate any minimum figure he would consider acceptable.

   
   

7. Mr. Laney did the appraisal as requested and wrote up the results on a form provided by the Federal National Mortgage Association. In conducting his appraisal, he used the three standard appraisal methods; the income method, the cost data method, and the sales data comparison method. As to the third property, located on 55th Avenue in Bradenton, the cost data method reflected a value of $165,282.00; the income method reflected a value of $168,000.00; and the sales data comparison method reflected a value of $155,000.00.

   
   

8. To get a valid appraisal using the comparable sales method, a minimum of three comparable sales must be considered. In this case, Laney used six sales no older than three months prior the appraisal date, using research records kept in his office.

   
   

9. For the first appraisal, Mr. Laney charged $150.00 plus tax; for the second, the same; and for the third, $300.00 plus tax. This came to a total amount owed of $630.00 which was, by individual property billings, billed to attorney David Wilcox, but shown to be for either Mr. Condrack, in the case of the last property, or Flagship Equity in the case of the other two. Mr. Laney was not paid for any of the appraisals and on January 15, 1988, wrote to Mr. Condrack requesting that he be paid for the three appraisals. He was not paid.

   
   

10. Respondent contends that he did not pay Mr. Laney because, as to the last appraisal, that on the 55th Avenue property, he was unable to secure financing from Key Savings Bank, to whom he applied for financing. He contends this was because Key refused to accept the appraisal done by Mr. Laney who was no longer on their list of approved appraisers because he had failed to initiate certification procedures as an appraiser. Mr. Laney contends that at the time he prepared the appraisal and forwarded it to Mr. Condrack, he was on Key's approved appraiser list but was subsequently removed because Key went to a designated appraiser system at the request of the Federal government. It matters not, however, whether Mr. Laney was certified by Key or not. There is no evidence that certification by Key was made a condition precedent to the appraisal services being rendered for Mr. Condrack and it appears that at the time the services were rendered and when the appraisal forms were delivered to the client, he was certified not only by Key but by the Island Bank (now First Union Bank) as well. He is still on the approved list with First Union.

    
    

11. Mr. Condrack contends that when he first was turned down for financing on the 55th Avenue property, he was "miffed" and decided to extend payment to Mr. Laney over a period of time rather than pay immediately. He communicated this intention to Mr. Laney. Mr. Laney declined to accept extended payment and instead requested immediate payment. Mr. Condrack has failed to make any payments whatever to Mr. Laney for any of the three appraisals performed for him even though he utilized the appraisal on the first property in purchasing it and is currently drawing income from it.

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 475.25(1), Florida Statutes, authorizes the Real Estate Commission to discipline the license of a broker of salesman if the licensee:

    
    

    Has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in any business transaction

    
    

14. In the instant case, the evidence indicates that Respondent, acting in his capacity as a private investor, contracted for the services of Mr. Laney to provide him with appraisals on property he was interested in purchasing for his investment trust, but which apparently were identified through his real estate brokerage activities. There is no evidence that J C C Company and Son, Inc., was in any way involved in these transactions, nor that it was billed for the work done.

    
    

15. As to Mr. Condrack, however, it is clear that he has unjustifiably failed to pay for services rendered to him at his request. Mr. Laney has a remedy available to him to enforce his claim against the Respondent Condrack. The Commission is not a collection agency and has no authority to enforce claims against licensed personnel. Its authority exists only to discipline a license holder if it is established that the licensee has violated a provision of the statutes or a rule of the agency. Consequently, only if the evidence demonstrates that Respondent Condrack's conduct constitutes one of the activities outlined in (b), above, can action be taken against him for the matters involved herein.

    
    

16. Here, Petitioner has established by clear and convincing evidence that Mr. Laney performed as requested of him, relying on the implied representation that he would be paid for his services. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Mr. Condrack in no way imposed any prequalifications or limitations on Mr. Laney's actions and it is clear that Mr. Laney provided that which he was obligated to provided. Thereafter, Mr. Condrack became obligated to pay for those services and, without any legitimate or legal basis for doing so, has failed to pay the amount owed. This constitutes a breach of trust in a business transaction as stated in the statute.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the so much of the Administrative Complaint as relates to the Respondent, J J C Company and Son, Inc., be dismissed, but that the broker's license of Respondent, James C. Condrack, Jr. be suspended for a period of one year.

RECOMMENDED this 7th day of April, 1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3010

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 parties to this case.

By The Petitioner:

1 - 7. Accepted and incorporated herein except as they pertain to Respondent, J C C Company and Son, Inc., which has been found not to be a part of Respondent Condrack's actions herein.

COPIES FURNISHED:

James H. Gillis, Esquire Senior Attorney

DPR-Division of Real Estate

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

James C. Condrack, Jr.

J C C Company and Son, Inc. Post Office Box 182 Sarasota, Florida 34230

Kenneth A. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Darlene F. Keller Division Director Division of Real Estate

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

Docket for Case No: 88-003010

Orders for Case No: 88-003010