STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1544

)

RONALD C. SUTTERFIELD AND )

1. S. LAND INCORPORATED, )

   )

   Respondents. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 22, 1991, in West Palm Beach, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Steven W. Johnson, Esquire

   Senior Attorney

   Department of Professional Regulation

   Division of Real Estate Hurston North Tower

   400 West Robinson Street Orlando, Florida 32802

   
   

   For Respondents: Ronald C. Sutterfield, pro se

   U. S. Land Incorporated Post Office Box 122

   Palm Beach, Florida 33480 STATEMENT OF THE ISSUE

   Whether Respondents committed the offenses set forth in the Administrative Complaint and, if so, the penalties that should be imposed.

   
   

   PRELIMINARY STATEMENT

   
   

   Respondent Sutterfield is a registered real estate broker in the State of Florida and has registered U. S. Land Incorporated as the corporate entity under which he does business. Petitioner filed an Administrative Complaint against Respondent Sutterfield and his corporation containing certain factual allegations and contending that those facts establish that each Respondent committed three separate violations of the statues and rules governing the real estate profession in Florida.

   Petitioner contends that Respondents failed to maintain an office and entrance sign in violation of Rule 21V-10.022 and Rule 21V-10.024, Florida Administrative Code, and consequently in violation of Section 475.25(1)(e), Florida Statutes.

   
   

   Petitioner contends that Respondents are guilty of misrepresentation or culpable negligence in violation of Section 475.25(1)(b), Florida Statutes.

   
   

   Petitioner contends that Respondents are guilty of obtaining a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Florida Statutes.

   
   

   Respondents denied the allegations of the Administrative Complaint and this proceeding followed. At the formal hearing, Petitioner presented the testimony of Sharon Thayer, an investigator employed by Petitioner. Petitioner introduced six exhibits, five of which were accepted into evidence and one of which was rejected. Respondent testified on his own behalf and introduced one exhibit.

   In addition to the exhibits introduced at the formal hearing, the parties were permitted to file late exhibits. Petitioner's exhibit 7 was accepted as a late filed exhibit as was Respondents's Exhibit 2.

   
   

   No transcript of the proceedings has been filed. Rulings on the parties's proposed findings of fact may be found in the Appendix to this Recommended Order.

   
   

   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.

      
      

   2. Respondent Ronald C. Sutterfield is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0153502 by Petitioner in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, % U.S. Land Brokers Incorporated (U.S. Land Brokers), 1809 Flagler Street, #B-7, West Palm Beach, Florida.

      
      

   3. Mr. Sutterfield caused Respondent U.S. Land Incorporated (U.S. Land) to be registered as a corporate real estate broker. U.S. Land was issued license number 0211331 by Petitioner in accordance with Chapter 475, Florida Statutes. The last license issued was at 827 Caroline Avenue, West Palm Beach, Florida. Mr. Sutterfield was, at all times pertinent hereto, the qualifying broker for

      U.S. Land.

      
      

   4. U.S. Land was involuntarily dissolved by the Florida Secretary of State's office on December 6, 1981. Despite this dissolution, Mr. Sutterfield continued to hold himself out as doing business as U.S. Land and he continued to maintain with Petitioner the registration and licensure of U.S. Land. Mr. Sutterfield misrepresented to Petitioner the status of U.S. Land on the applications he submitted to Petitioner for the continued registration and licensure of U.S. Land between 1981 and 1990.

      
      

   5. From approximately January 1986 through June 1990, Respondents maintained an office in a residence located at 827 Caroline Avenue in West Palm Beach, Florida. There was a conflict in the evidence as to whether there was a sign on or about the entrance. Mr. Sutterfield contends that his office was in

      a back area of the residence that has a separate entrance and that the sign was posted on that entrance. Petitioner's investigator testified that her inspection revealed that no sign had been posted, but it was not clear that she had looked in the remote area of the premises described by Mr. Sutterfield.

      This conflict is resolved by finding that the evidence failed to establish that Mr. Sutterfield had failed to post a sign at the separate entrance to his office at 827 Caroline Avenue. 1/

      
      

   6. On June 12, 1990, Mr. Sutterfield reported to the Petitioner a change of address as well as a new corporation, U.S. Land Brokers, Inc.

      
      

   7. On July 19, 1990, Petitioner's investigator conducted an office inspection at Respondents' new address located at 1809 Flagler Drive #B-7, West Palm Beach, Florida. This location is an apartment complex whose rules forbid the operation of a business out of the apartments.

      
      

   8. The Respondents's homemade entrance sign was hung in such a manner as to be partially obscured to public view and, consequently, the name of the brokerage corporation as registered with the Petitioner was not visible.

      
      

   9. Respondents had, as of the formal hearing, never applied for an occupational license from the local governing authority for either the location at 827 Caroline Avenue or the location at 1809 Flagler Drive.

      
      

   10. Mr. Sutterfield's former wife would not forward his mail to him following their divorce in July 1980 and, consequently, he did not receive notification of the dissolution of U.S. Land. After Mr. Sutterfield was told by Petitioner's investigator that he needed an occupational license, he learned that U.S. Land had been dissolved and that he could not reincorporate under that name. Mr. Sutterfield told Petitioner's investigator of the problems he had encountered with the dissolved corporation and that he was attempting to resolve the problem with the Office of the Secretary of State before applying for an occupational license.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

       
       

   12. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

       
       

       That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must

       be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the

       allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla.

       4th DCA 1983).

       
       

   13. Section 475.25, Florida Statutes, provides, in pertinent part, as follows:

       
       

       1. The commission ... may suspend a license, certification, registration, or permit for a period not exceeding 10 years; may revoke a license, certification, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee ... :

          * * *

          (b) 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 ...

          * * *

          (e) Has violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.

          * * *

          (m) Has obtained a license by means of fraud, misrepresentation, or concealment.

          
          

   14. Rule 21V-10.022, Florida Administrative Code, requires each active real estate broker to maintain an office, but permits that office to be located in the broker's residence if such use is not contrary to local zoning ordinances. Petitioner did not establish that Respondents's offices were inconsistent with local zoning ordinances.

       
       

   15. Rule 21V-10.024, Florida Administrative Code, provides, in pertinent part, as follows:

       
       

       All licensed real estate brokers, holding an active license, shall erect and maintain a sign on or about the entrance of their

       principal office and all branch offices, which sign may be easily observed and read by persons about to enter the office. Every such sign shall contain in letters not less than one inch in height, the name of the broker, together with his trade name if any, and if

       a partnership or corporation, shall contain the name of the firm or corporation along with the name of at least one of the brokers and the words "Licensed Real Estate Broker" (or Lic. Real Estate Broker). ...

   16. Petitioner failed to establish that Respondents failed to maintain an appropriate sign or office for his location at 821 Caroline Avenue, West Palm Beach, Florida. Petitioner did establish that Respondent Sutterfield's sign at 1809 Flagler Drive #B-7, West Palm Beach, Florida, was deficient in that the sign was not readily observable since a portion of the sign was not visible when the door was closed. This deficiency is in violation of Rule 21V-10.024, Florida Administrative Code, and, consequently, a violation of Section 475.25(1)(e), Florida Statutes. This violation applies to Respondent Sutterfield only since U.S. Land Brokers is the corporation he had qualified at that location and that corporation is not a respondent to these proceedings. This violation is a technical violation of the rule which would merit a reprimand.

       
       

   17. Petitioner established by clear and convincing evidence that Respondents had never applied for an occupational license. Petitioner did not establish, however, that Respondents were required to obtain an occupational license or how such failure would violate the provisions of law cited by Petitioner in the Administrative Complaint.

       
       

   18. Petitioner established by clear and convincing evidence that Respondent Sutterfield obtained renewal licenses for U.S. Land Incorporated throughout the 1980's by misrepresenting the status of that corporation. This evidence establishes a violation of Section 475.25(1)(m), Florida Statutes, as alleged in the Administrative Complaint. His contention that he had not received the dissolution notice because of his divorce and that he told Petitioner's investigator about the dissolution is accepted. His contentions that his failure to receive the dissolution notice and that his communication with Petitioner's investigator excuse his failure to know the status of the corporation and excuse his misrepresentations are rejected. Respondent Sutterfield's position as to those misrepresentations reflects an indifference to the responsibilities imposed by law upon those engaging in the profession of real estate.

       
       

   19. Rule 21V-24.001, Florida Administrative Code, provide certain guidelines pertinent to this provision. For a violation of Section 475.25(1)(m), Florida Statutes, the recommended range of penalties is a $1,000 fine and revocation of licensure. The recommendation that follows is based, in part, on the recommended disposition of this matter submitted by Petitioner in its Proposed Recommended Order.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent

Ronald C. Sutterfield violated the provisions of Section 475.25(1)(e) and (m), Florida Statutes. It is further recommended that a letter of reprimand be issued for his violation of Section 475.25(1)(e), Florida Statutes. It is further recommended that any remaining licenses issued to U.S. Land Incorporated be revoked. It is further recommended that for his violation of Section 475.25(1)(m), Florida Statutes, Respondent Ronald C. Sutterfield be fined the sum of $1,000; that his licensure as a real estate broker be suspended for a period of 60 days; and that his licensure be placed on probation for a period of one year following such suspension.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of July, 1991.

CLAUDE B. ARRINGTON

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 1st day of July, 1991.

ENDNOTES

1/ This resolution of the conflict is based primarily on the requirement that evidence be established by clear and convincing evidence and by the uncertainty as to whether the investigator saw the separate entrance to the area of the premises where Mr. Sutterfield contends he had posted his sign. The resulting finding should not be construed as an adverse reflection on the investigator's credibility or of the inspection that she made since the area of the house described by Mr. Sutterfield is not one that would normally be inspected.

APPENDIX TO THE RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 3, 4, 5, 6, 7, 9, 10, 11, 12, and 13 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 2 are rejected as being contrary to the findings made.

3. The proposed findings of fact in paragraph 8 are adopted in part, but are rejected in part as being contrary to the findings made.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondents. These proposed findings of fact are contained in a handwritten submittal filed June 17, 1991. The following rulings are made as to the section of that submittal styled "Answer to 'Findings of Fact'". This section is in response to the proposed findings submitted by Petitioner and consists of paragraphs labeled Point 2.3, Point 6, Point 7, Point 8, Point 9,

Point 11, Point 12, and Point 13.

1. The proposed findings of fact in paragraphs styled Point 2.3, Point 6, and Point 8 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in the paragraph styled Point 7 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached or as being unsubstantiated by the evidence.

3. The proposed findings of fact in the paragraph styled Point 9 are rejected as being unclear as to what is intended and as being unnecessary to the conclusions reached.

4. The proposed findings of fact in the paragraphs styled Point 11 and Point 12 are adopted in part by the Recommended Order and are rejected in part as being contrary to the findings made.

5. The proposed findings of fact in the paragraph styled Point 13 are rejected as being unnecessary as a finding of fact, but are adopted in material part in the Conclusions of Law portion of the Recommended Order.

COPIES FURNISHED:

Steven W. Johnson, Esquire

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

Ronald C. Sutterfield, pro se

U. S. Land Incorporated Post Office Box 122

Palm Beach, Florida 33480

Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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: 91-001544

Orders for Case No: 91-001544