STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-0264

)

ALLEN DARRELL PROBUS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on April 24, 1991, at Tampa, Florida.

APPEARANCES

For Petitioner: Janine B. Myrick, Esquire

400 West Robinson Street Orlando, Florida 32802

For Respondent: Anthony Elgin, Qualified Representative

2155 Northeast Coachman Road Clearwater, Florida 34625

STATEMENT OF THE ISSUES

Whether Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint filed July 19, 1990, the Department of Professional Regulation, Division of Real Estate, Petitioner, seeks to take disciplinary action against the real estate licenses of James Parker Waddle as broker and Allen Darrell Probus as salesman. As grounds therefor, it is alleged that Waddle was engaged in buying homes in a depressed market, placing mortgages on the homes and selling them to persons normally unable to qualify for mortgages and during the process take commissions and fail to make payments on the mortgages. Charges against Probus alleged primarily that he worked for Waddle and was involved in those shady real estate transactions.

Subsequent to the allegations contained in the Administrative Complaint, Waddle departed from his last address known to Petitioner and could not be located. Prior to the commencement of this hearing, Waddle's license as a real

estate broker was revoked. As a result, Probus is the only Respondent in these proceedings.

At the hearing, Petitioner called five witnesses, Respondent testified in his own behalf, and 16 exhibits were admitted into evidence. Proposed findings have been submitted by the parties and are accepted. Those proposed findings not included herein were deemed unnecessary to the conclusions reached.

FINDINGS OF FACT

1. At all times relevant hereto, Allen Darrell Probus, Respondent, was licensed as a real estate salesman and was employed by Florida Westbay Corporation (Westbay). Prior to becoming licensed as a real estate salesman in Florida, Respondent was employed by Westbay to search out and purchase real property for Westbay.

   
   

2. James Parker Waddle was the owner of Westbay and served as active broker for Westbay.

   
   

3. When Probus became licensed, he was given the designation of sales manager for Westbay, authorized to sign documents on behalf of Westbay and directed to sign those documents as Vice President of Westbay.

   
   

4. At no time was Probus officially made an officer in Westbay or a director of the corporation.

   
   

5. Donald Miller deeded property located at 7235 Heath Drive, Port Richey, Florida, to Westbay Corporation on which Westbay took out a first mortgage and Miller accepted a second mortgage on the property. The mortgage note on this property was signed by Waddle.

   
   

6. A Westbay salesman negotiated the contract to purchase from Miller and a contract to sell this Heath Drive property to Brian Goldbaum on a contract for deed. Respondent signed this latter contract on behalf of Westbay. Neither Goldbaum or Miller had any other contact with Respondent.

   
   

7. In carrying out his part of the agreement, Goldbaum made monthly payments to Westbay; however, Westbay failed to make first mortgage payments or second mortgage payments.

   
   

8. When Miller learned the bank was getting ready to foreclose on the first mortgage, he went to Goldbaum and advised him that he, Miller, was the owner and that if Goldbaum wanted to stay in the house he would have to make arrangements to pay Miller.

   
   

9. When Goldbaum declined the offer, Miller, through his attorney, sent an eviction notice to Goldbaum.

   
   

10. Miller subsequently obtained a default judgment against Westbay and Waddle (Exhibit 16) for damages for civil fraud.

    
    

11. Respondent also signed a contract to sell Westbay property to Dorothy James and James Bradford (Exhibit 9). This document, too, was signed on behalf of Westbay by Probus, V.P.

    
    

12. Probus also signed an agreement for deed as Westbay, V.P., agreeing to transfer property to Jones and Bradford after certain conditions were met.

13. Respondent was licensed as a real estate broker in Kentucky from 1973 to 1988 with no record of disciplinary actions (Exhibit 11).

    
    

14. James P. Waddle's affidavit (Exhibit 15) corroborates Respondent's testimony that Respondent was hired to hire, train and manage sales people and sign contracts as agent for Waddle. Further, this affidavit corroborates Respondent's testimony that he was not an officer or director of Westbay, and the title given him as Vice President was in name only to give Respondent more "clout".

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Respondent is here charged with violation of Section 475.25(1)(b), Florida Statutes, which makes it an offense punishable by disciplinary action up to and including revocation of license if it is proven 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 in this state . . ; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted or conspired

    with any other person engaged in such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in such misconduct and committed an overt act in furtherance of such intent, design, or scheme.

    
    

17. In disciplinary proceedings that may lead to loss of licensure, the Petitioner has the burden to prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

18. Not a scintilla of evidence was presented that Respondent misrepresented anything other than his title as V.P.; and that so-called misrepresentation did not affect the validity of the documents he signed as "V.P.". None of the parties involved in the Miller transaction had any contact with Respondent, or had even met Respondent.

    
    

19. Nor was any evidence submitted that Respondent conspired with Waddle or assisted Waddle in any fraudulent business transaction. Respondent was merely an employee of Westbay and signed documents as he was authorized to do. None of those documents was unenforceable as a matter of law, and no fraud on the part of Respondent was shown in their execution. In short, no evidence was presented that Respondent violated Section 475.25(1)(b), Florida Statutes, as alleged.

    
    

20. From the foregoing, it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that the actions taken by Probus in signing contracts and deeds on behalf of Florida Westbay Corporation, violated any provision of Chapter 475, Florida Statutes.

RECOMMENDATION

It is recommended that a Final Order be entered finding Allen Darrell Probus not guilty of all charges and dismissing the Administrative Complaint.

RECOMMENDED this 13th day of May, 1991, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1991.

COPIES FURNISHED:

Janine B. Myrick, Esquire Division of Real Estate Post Office Box 1900 Orlando, FL 32802

Darlene F. Keller Division Director Post Office Box 1900 Orlando, FL 32801

Jack McRay General Counsel

Department of Professional Regulation

1940 N. Monroe Street Tallahassee, FL 32399

Allen Darrell Probus 6701 Leeword Isle Way Tampa, FL 33615

Anthony Elgin, Qualified Rep. The Elgin Company

2155 NE Coachman Road Clearwater, FL 34625

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000264

Orders for Case No: 91-000264