STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION )

OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2618

)

PAUL EDWARD EBBERT, JR., )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on July 31, 1991, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The Petitioner was present at the noticed hearing location, Orlando, Florida, and the matter was conducted by telephone conference call with the court reporter swearing all witnesses who appeared to testify. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: James H. Gillis

Senior Attorney

Department of Professional Regulation, Division of Real Estate

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

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated March 20, 1991; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on March 20, 1991, when the Department of Professional Regulation, Division of Real Estate (Department) issued an administrative complaint against the Respondent, Paul Edward Ebbert, Jr., and alleged that he had violated Section 475.21(1)(b), Florida Statutes. More specifically, the complaint charged that Respondent was guilty of misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction since he knew

or should have known that the acreage sold to his buyers could not be subdivided as he represented. The Respondent filed an election of rights that disputed the allegation of fact and requested a hearing pursuant to Section 120.57(1), Florida Statutes. Thereafter, the case was forwarded to the Division of Administrative Hearings for formal proceedings on April 29, 1991.

At the hearing, the Department presented the testimony of the following witnesses: Thomas Bellaw, Cheryl Bellaw, and Gene D. Bennett. The Department's exhibits numbered 1 through 9 were admitted into evidence. No evidence was presented on behalf of the Respondent.

The transcript of the proceedings was filed with the Division of Administrative Hearings on August 19, 1991. After the hearing, the Department timely filed a proposed recommended order which has been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Department is the state agency charged with the responsibility of regulating and disciplining real estate licensees.

   
   

2. At all times material to the allegations of this case, the Respondent has been a real estate licensee having been issued salesman's license no. 0455312.

   
   

3. In March, 1989, Respondent met with Thomas and Cheryl Bellaw regarding the purchase of real property. The Bellaws were interested in investment property which would enhance their retirement options.

   
   

4. Respondent showed the Bellaws a 7.5 acre tract which he claimed could be subdivided into smaller lots and resold at a substantial profit.

   
   

5. As an inducement to convince the Bellaws to make the purchase, the Respondent drew several plans to show how the tract could be divided, made resale projections to compute the buyers' estimated profits from the subdivision of the land, and gave the buyers sales comparables from other lots to justify the figures he presented.

   
   

6. In truth, the tract could not be subdivided and was the subject of a county ordinance which prohibited its division.

   
   

7. Respondent knew that the tract could not be subdivided but nevertheless encouraged the Bellaws to complete the purchase. Once the purchase was completed, the Bellaws listed the property for resale with the Respondent at a substantial increase. At no time prior to the purchase by the Bellaws or prior to the subsequent relisting, did the Respondent advise the Bellaws that the tract could not be subdivided.

   
   

8. When the listing produced no offers, the Bellaws investigated and discovered that the tract they had purchased had been illegally subdivided earlier from a 10 acre parcel. Respondent admitted that the 10 acres had been owned by a married couple who, in the course of their divorce, quitclaimed part

   to the wife (the portion not sold to the Bellaws) and part to the husband (the portion purchased by the Bellaws), and that this subdivision was impermissible.

   
   

9. The Bellaws then went to the county for relief. They sought after-the- fact permission to subdivide the 10 acre parcel so that their tract would be able to receive a building permit. That relief was denied. Consequently, the Bellaws have been unable to assure that a building permit can be issued for their property and are unable to use the tract for the purpose for which it was purchased.

   
   

10. Respondent should have known of the county ordinance which prohibited the subdivision of the 10 acre tract as it had been enacted some seven to eight years prior to the transaction which is the subject of this case. A prudent real estate licensee checks governmental restrictions which might impair the marketability of a parcel.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The Department bears the burden of proving, by clear and convincing evidence, the allegations of the administrative complaint.

    
    

13. Section 474.25(1)(b), Florida Statutes, provides, in part:

    
    

    1. The commission may deny an application for licensure, certification, registration, or permit, or renewal thereof; may place a licensee, certified appraiser, registrant, or

       permittee on probation; 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, certified appraiser, registrant, permittee, or applicant:

       * * *

       (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. . .

       
       

14. Rule 21V-24.001, Florida Administrative Code, sets forth the disciplinary guidelines for violations of Chapter 475, Florida Statutes. Subsection (3) of that rule provides that the recommended range of penalty for a violation of Section 475.25(1)(b), Florida Statutes, is up to 5 years suspension or revocation.

    
    

15. In this case, the Department has established by clear and convincing evidence that the Respondent misrepresented material facts relevant to the Bellaws' purchase of the 7.5 acre tract. But for those misrepresentations, the

    buyers would not have purchased the parcel. Since Respondent should have known of the county ordinance, and did know of the prior impermissible subdivision of the 10 acre parcel, he must be found guilty of having violated Section 475.25(1)(b), Florida Statutes.

    
    

16. Respondent has offered no explanation for his acts in this transaction. The Bellaws relied on the honesty and integrity of the sales agent when they invested their savings in this project. The qualifications for real estate licensure in Florida require that a person be honest, truthful, and trustworthy. See Section 475.17(1)(a), Florida Statutes. Respondent has failed to meet that standard.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Florida Real Estate Commission enter a final order revoking Respondent's real estate license.

DONE and ENTERED this 16th day of September, 1991, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of

Administrative Hearings this 16th day of September, 1991.

APPENDIX TO RECOMMENDED ORDER

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 and 2 are accepted.

2. Paragraph 3 is accepted but is irrelevant to the allegations of this case.

3. Paragraphs 4 through 14 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

None submitted.

COPIES FURNISHED:

James H. Gillis Senior Attorney

Department of Professional Regulation, Division of Real Estate

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

Paul Edward Ebbert, Jr. 1000 Abernathy Lane, #206

Apopka, Florida 32703

Paul Edward Ebbert, Jr. 770 Lake Kathryn Circle

Casselberry, Florida 32307

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

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

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

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: 91-002618

Orders for Case No: 91-002618