STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION )

OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3824

)

WILLIAM M. McCOY, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 24, 1991, in Orlando, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. 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 32801-1772

For Respondent: William M. McCoy, pro se

1918 Alameda Drive

Deltona, Florida 32738-4869 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 April 26, 1991; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on April 26, 1991, when the Department of Professional Regulation, Division of Real Estate (Department) filed an administrative complaint against the Respondent, William M. McCoy, and alleged a violation of Section 475.25(1)(b), Florida Statutes. Specifically, the Department charged that the Respondent had been 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 connection

with certain conduct related to a contract for sale and purchase for the buyers Michael P. Ernst and Lauren B. Cameron. While the administrative complaint dealt with other issues and charges against other licensees also, the issue at the hearing in this case dealt only with Respondent's conduct in the transaction. Respondent timely filed an election of rights and the case was forwarded to the Division of Administrative Hearings for formal proceedings on June 24, 1991.

At the hearing, the Department presented the testimony of the following witnesses: the Respondent, William M. McCoy; Michael P. Ernst, buyer; Lauren Cameron, buyer; and John S. Chinelli, broker. The Department's exhibits numbered 1 through 6 were admitted into evidence. The Respondent made statements in his own behalf and offered one exhibit numbered 1 which was received in evidence. Respondent's exhibits numbered 2 and 3 were not admitted into evidence but have been proffered for the record.

After the hearing, the parties were granted ten days leave from the filing date of the transcript within which to file proposed recommended orders. The transcript of the proceedings was filed with the Division of Administrative Hearings on October 7, 1991. The Petitioner's proposed recommended order has been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix. The Respondent has not timely file a proposed order.

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 licensing and regulatory authority over real estate licensees.

   
   

2. At all times material to this case, Respondent has been licensed as a real estate broker in the State of Florida and was registered as a broker- salesman in the employ of Ideal Real Estate of Central Florida, Inc. (Ideal). Respondent's license number is 0057458.

   
   

3. On or about August 23, 1990, Respondent prepared a contract for the sale and purchase of real estate which identified Michael P. Ernst and Lauren B. Cameron as the buyers of a property located in Deltona Lakes Subdivision. The contract executed by the buyers specified an acceptance date of August 25, 1990, and indicated a sales commission in the amount of 7 percent of the gross purchase price would be paid by the sellers.

   
   

4. Subsequently, Respondent met with the property's listing agent and made two changes to the contract. The first change altered the commission to 8 percent which was in accordance with the listing agreement. The second change altered the time for acceptance from August 25, 1990, until August 30, 1990.

   The buyers did not initial the changes, did not verbally authorize the changes, and did not, by their subsequent conduct, ratify the changes.

   
   

5. The Respondent did not return a copy of the contract to the buyers until several weeks later. It was then that they learned of the alterations noted above. Since they had become dissatisfied with the purchase prospect, the buyers elected to terminate the transaction. Ultimately, after conflicting demands and differences were resolved, the buyers received a refund of the

   $2000.00 deposit they had put down on the deal at the time they made the offer.

6. When the Respondent's broker learned of the alterations to the contract, Respondent was terminated from employment with Ideal.

   
   

7. Respondent's position has been that the changes made did not adversely affect the buyers since they were not obligated to pay the sales commission and since the extension of the time for acceptance was required to give the out-of- state sellers an opportunity to review the offer.

   
   

8. In fact, the sellers did not accept the offer until August 29, 1990.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 475.25(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 impose an administrative fine not to exceed

       $1,000 for each count or separate offense;

       * * * 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 or any other state . . .

       
       

11. Rule 21V-24.001, Florida Administrative Code, sets forth the guidelines for penalties related to violations of real estate provisions. Pertinent to this case are the following recommended guidelines found in that rule: an administrative fine up to $1000 per count and up to 5 years suspension or revocation.

    
    

12. In this case, the Department has established by clear and convincing evidence that the Respondent altered the offer to purchase without the consent of the buyers and that such alteration constitutes dishonest dealing, misrepresentation, or concealment in violation of Section 475.25(1)(b), Florida Statutes. Respondent's explanations regarding the transaction have not been deemed credible nor would they, if true, exculpate him for the actions complained of in this case.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Florida Real Estate Commission enter a final order finding the Respondent guilty of having violated Section 475.25(1)(b), Florida Statutes, imposing an administrative fine in the amount of $1000, and suspending Respondent's license for a period of six months.

DONE and ENTERED this 24th day of October, 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 24th day of October, 1991.

APPENDIX TO RECOMMENDED ORDER

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

1. Paragraphs 1 through 6, 8 through 11, 14 and 15 are accepted.

   
   

2. Paragraph 7 is rejected as contrary to the weight of the evidence or irrelevant. The sellers were obligated to pay a commission to cooperating brokers in the amount of 8 percent.

   
   

3. With regard to paragraph 12 it is accepted that the Respondent's broker fired him when he discovered the alterations to the contract; otherwise rejected as irrelevant.

   
   

4. Paragraph 13 is rejected as irrelevant.

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

None submitted.

COPIES FURNISHED:

Darlene F. Keller Division Director

Department of Professional Regulation, Division of Real Estate

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

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

James H. Gillis Senior Attorney

Department of Professional Regulation, Division of Real Estate

400 West Robinson Street Post Office Box 1900

Orlando, Florida 32801-1772

William M. McCoy 1918 Alameda Drive

Deltona, Florida 32738-4869

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: 91-003824

Orders for Case No: 91-003824