STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4812

)

DAVID JOHN TRIBBEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 3, 1990, in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation

Division of Real Estate

400 West Robinson Street Orlando, Florida

For Respondent: David John Tribbey, pro se

1201 Seminole Boulevard #8 Largo, Florida

STATEMENT OF THE ISSUES

Whether the Respondent's real estate license in Florida should be disciplined because the Respondent committed fraud, misrepresentation, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

By an Administrative Complaint filed on March 22, 1990, the Petitioner alleges that the Respondent has violated Subsection 475.25(1)(b), Florida Statutes. The Respondent disputed the charges and requested a hearing.

Thereafter, a formal hearing was held.

At the hearing, the Petitioner presented the testimony of three witnesses, George A. Cayley, Edwin F. Byerly and Jim Robinson, and six exhibits were received in evidence. The Respondent testified in his own behalf. A transcript was not ordered. The Petitioner did not submit proposed findings of fact.

Respondent submitted his proposed findings of fact and conclusions of law on October 15, 1990. The proposals submitted have been given careful consideration and adopted when supported by the evidence. My specific rulings on the proposed findings are contained in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. Respondent, David John Tribbey, was at all times material hereto a licensed real estate salesman in the State of Florida having been issued license number 0499607 in accordance with Chapter 475, Florida Statutes. The last license issued was as a salesman, in association with Century 21 G.M. Group, Inc., a broker corporation located at 2233 Nursery Road, Clearwater, Florida, and home address of 1648 Summerdale Drive South, Clearwater, Florida. On March 31, 1989, his sales license expired and has not been renewed.

   
   

3. In the summer of 1988, George Cayley made an offer to purchase a house at 7151 Flora Avenue, Largo, Florida, from Beryl W. Constable for the sum of

   $25,000. This offer was accepted, and a contract for sale of real estate was executed on March 3, 1988. Respondent was the agent for the Seller. Contained in the contract was the following pertinent clauses:

   
   

   "4. THIS CONTRACT IS SUBJECT TO THE TERMS AND CONDITIONS APPEARING ON THE REVERSE SIDE HEREOF WHICH ARE HEREBY INCORPORATED HEREIN [BY] REFERENCE EXCEPT AS STATED IN OTHER PROVISIONS.

   1. OTHER PROVISIONS ... Seller will pay a maxi- mum of $500.00 towards repairs other than termite clause E.

   2. THE FOLLOWING ITEMS SHALL BE IN WORKING ORDER AT CLOSING, "as is" after closing: All items listed in #5 above and to include elec- trical and plumbing.

      ...

      E. TERMITE INSPECTION, TREATMENT: Seller shall furnish to Buyer a termite inspection report from a licensed exterminating company showing the premises to be free of visible evidence of active infestation of subterranean or drywood termites. In the event the report reveals such infestation. Seller shall, prior to closing, have the premises treated for extermination of termites and have all damage caused by such infestation repaired; provided, however, that in the event the cost of treatment and repair will exceed the sum of Five Hundred ($500.00) Dollars the Seller shall have the option of terminating this contract, in which case the

      earnest money deposit shall be returned to Buyer.

4. Cayley purchased the property for investment purposes. This was the second investment property he purchased. He walked through the house shortly after it was listed, the house was in excess of thirty years old and it was apparent that it was only in passable shape, and the roof would need to be replaced.

   
   

5. The Buyer had the roof inspected, and as a result the Seller had the roof replaced. In between the roof inspection and replacement, Bob Bluhm of Century 21 G.M. Group, Inc., on behalf of the Seller arranged for a termite inspection to be completed.

   
   

6. On May 13, 1988, JR's Termite and Pest Control inspected the house and the report of findings indicated that the inspector observed visible evidence of drywood and subterranean termites located throughout the structure and visible damage. A notice of inspection was left under the kitchen sink. Between May 16 and 18, 1988, the house and carport was treated by tenting and all evidence of live wood destroying organisms was eliminated. However, the inspector still noted that visible evidence of damage was observed. A notice of inspection was left under the kitchen sink. The Seller took no action to repair the damage prior to closing.

   
   

7. The closing on the house took place on May 27, 1988, at the office of Century Title and Abstract, Inc. with John W. Johnson as closing agent. At the closing, the closing agent delivered to Cayley the termite inspection reports and went over the closing statement prior to its execution by the parties to the sale. The Closing Statement, executed on May 27, 1988, showed that the Seller paid $525 for pest inspection and the parties divided equally the cost of roof repair. Cayley was advised that the house had been "tented". Cayley and the Respondent did a final "walk through" of the house the day prior to the closing, and Cayley was shown the termite inspection sticker under the kitchen sink. Cayley made no further inquiry concerning termites and Respondent provided no further information in regard to the damage caused by the termites.

   
   

8. Following the closing, Cayley sent his contractor to replace some broken and missing siding at the bottom of one side wall and substantial damage to the structural support of the house was discovered that was caused by the prior termite infestation. It cost the Buyer several thousand dollars to repair the damage.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes (1989).

    
    

11. The Petitioner is responsible for the disciplining of licenses of real estate brokers and salespersons. Section 475.25, Florida Statutes (1989).

    
    

12. Section 475.25, Florida Statutes (1989), provides that the Florida Real Estate Commission may suspend a license for a period of not exceeding ten

    (10) years; revoke a real estate license; may impose an administrative fine not to exceed $1000 for each count or separate offense; and may impose a reprimand

    or, any or all of the foregoing, if it finds that a licensee has violated Subsection 475.25(1)(b), Florida Statutes.

    
    

13. Subsection 475.25(1)(b), Florida Statutes (1989), proscribes fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction.

    
    

14. The burden of proof is on the Petitioner as to each count of the Administrative Complaint. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Revocation of license proceedings are penal in nature, State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973), and Petitioner has to prove by clear and convincing evidence the violations alleged in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

15. As a real estate licensee in Florida, the Respondent occupies a status under law with recognized privileges and responsibilities. Zichlin v. Dill, 25 So.2d 4 (Fla. 1946); United Homes, Inc. v. Moss, 154 So.2d 351 (Fla. 2nd DCA 1963).

    
    

16. Inasmuch as a real estate licensee in Florida belongs to a privileged class, the state has prescribed a high standard of qualifications. Zichlin, supra. "The law specifically requires that a person, in order to hold a real estate license, must make it appear that he is honest, truthful, trustworthy, of good character and that he bears a good reputation for fair dealing." McKnight

    v. Florida Real Estate Commission, 202 So.2d 199 (Fla. 2nd DCA 1967). Anyone who deals with a licensee may assume he is dealing with an honest and ethical person. Shelton v. Florida Real Estate Commission, 120 So.2d 191 (Fla. 2nd DCA 1960).

    
    

17. The Petitioner's proof is both clear and convincing in this case, sufficient to justify the imposition of a penalty within the range of those provided for by the Legislature, that Respondent knew or should have known that his acts and omissions were a misrepresentation or concealment of material facts that would be relied upon by the Buyer to his detriment. Under the terms of the contract for sale, the Seller not only had an obligation to destroy the termites prior to the closing but to repair the damage as well. Respondent became aware of the existence of live termite infestation, helped arrange for the house to be "tented", but did not insure that the inspection and treatment reports were delivered to the Buyer prior to closing, as required by the contract for sale. Respondent participated in concealing from the buyer the fact that there was extensive structural damage to the house caused by the termite infestation. Showing the Buyer the inspection sticker under the kitchen sink at the time of the walk through is not enough when the termite report clearly showed that there was damage to the house at the time of the treatment, and the Seller did not repair the damage or cancel the contract. See: Rayner vs. Wise Realty Company of Tallahassee, 504 So.2d 1361 (Fla. 1st DCA 1987).

    
    

18. The Respondent did not deal fairly, honestly and with candor with Mr. Cayley. The facts elicited through testimony reflect carelessness toward the principles of fair dealing and professional standards on the part of the Respondent, and that the Respondent is guilty of violating Subsection 475.25(1)(b), Florida Statutes, by concealment of a material fact.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Respondent be found guilty of violating Subsection 475.25(1)(b), Florida Statutes, that he should be reprimanded and an administrative fine of $500 should be imposed.

RECOMMENDED this 25th day of January, 1991, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 25th day of January, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4812

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact:

Accepted in substance: paragraphs 1,2,3,4,5

Rejected as against the greater weight of the evidence: 6,8 Rejected as a conclusion of law: 7

Respondent's proposed findings of fact: Respondent did not submit proposed findings.

COPIES FURNISHED:

Steven W. Johnson, Esquire Division of Real Estate Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, FL 32801

David John Tribbey

1201 Seminole Boulevard #8 Largo, Florida

Darlene F. Keller Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, FL 32801

Kenneth Easley General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0750

Docket for Case No: 90-004812

Orders for Case No: 90-004812