STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 94-1598

)

DAVID LLOYD AMMONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings, held a formal hearing in this matter on April 12, 1995, in Sarasota, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and Professional Regulation

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

For Respondent: David Lloyd Ammons, Pro se

3829 Hibiscus Boulevard

Sarasota, Florida 34232 STATEMENT OF THE ISSUE

Should Respondent's license as a real estate salesperson in the State of Florida be revoked, suspended or otherwise disciplined?

PRELIMINARY STATEMENT

By an administrative complaint dated February 16, 1994, and filed with the Division of Administrative Hearings (Division) on March 23, 1994, the Petitioner Department of Business and Professional Regulation, Division of Real Estate (Department) is seeking to revoke, suspend or otherwise discipline the Respondent's real estate salesperson license in the State of Florida. As grounds therefor, it is alleged that Respondent violated Section 475.25(1)(b),(c) and (e), Florida Statutes. By an Election of Rights the Respondent denied the allegations and requested a formal administrative hearing under Section 120.57(1), Florida Statutes.

At the hearing, the Department presented the testimony of Larry Frazier, Paul W. Younts and Janet G. Scholtz. Respondent testified on his own behalf and

presented the testimony of Kim Rasmussen (Ammons), Respondent's wife. The Department's exhibits 1 through 4 were received as evidence. Respondent's exhibit 1 was rejected as not being relevant or material to this proceeding. All other exhibits offered by Respondent were withdrawn.

There was no transcript of the proceeding filed with the Division. The Department timely filed its proposed findings of fact and conclusions of law. The Respondent did not file his proposed findings of fact and conclusions of law until May 1, 1995, which was not timely based on the schedule set forth at the hearing. However, the untimeliness of Respondent's proposed recommended order did not delay the issuance of the Recommended Order. Therefore, Respondent's proposed findings of fact were considered before the issuance of the Recommended Order. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida charged with the responsibility and duty to prosecute violations under Chapters 455 and 475, Florida Statutes.

   
   

2. At all time material to this proceeding, Respondent David Lloyd Ammons was a licensed real estate salesperson in the State of Florida, having been issued license number 0599760 in accordance with Chapter 475, Florida Statutes.

   
   

3. Between June 1, 1993, and December 13, 1993, Respondent worked as a licensed real estate salesperson with Frazier & Broz Realty, Inc.

   
   

4. In early July, 1993, Respondent sent a letter to Paul Younts of Sarasota, Florida soliciting his home as a listing. This letter contained the following statement:

   
   

   My track record in Real Estate: I personally market 75 to 85 homes per year!

   
   

   RECAP: I don't "List-Um-Forget-Um",

   
   

   ---I SELL 75-85 HOMES PER YEAR, (APPROXIMATELY

   100 percent OF MY OWN LISTINGS!)---

   
   

5. Respondent did not have any real estate listings and did not sell any homes while working with Frazier & Broz Realty, Inc. Likewise, there was no evidence that Respondent had sold any homes or had any real estate listings through any other real estate broker during the period of time in question.

   
   

6. Respondent sold many homes in Oregon during the mid 1970's while licensed as a real estate salesman in Oregon. It was these sales that Respondent contends he was referring to in the letter to Younts.

   
   

7. Enclosed with the letter was a video, some paper work and documentation for the purpose of establishing the scope of Respondent's activities through the years. Also enclosed with the letter was Respondent's business card.

8. Respondent's business card indicated that he was associated with "Century 21 - Frazier & Broz Realty" in Sarasota, Florida. Below the Respondent's name on the business card was the designation "Residential Energy Specialist". On the opposite side of the business card was the designation:

   
   

   STATE ENERGY AUDITOR FLORIDA LIC. #E-1100*

   The following appears on the bottom of the card:

   *State Law Allows Only One Active Professional License

   
   

9. Respondent's State Energy Auditor's License No. E-1100 certified Respondent to work exclusively in the Institutional Conservation Program and could not be used to procure work in the residential sector. Furthermore, Respondent's State Energy Auditor's License No. E-1100 expired prior to 1990 and has not been renewed.

   
   

10. Larry Frazier testified that he did not specifically remember approving Respondent's business card for printing. However, since the business card carried the "Century 21" logo, it would have required approval of Frazier & Broz Realty before being printed.

    
    

11. Likewise, it was Larry Frazier's testimony that while he did not see the final package that was mailed to Paul Younts, he was aware of Respondent's project to get homes being sold by the owners as listings. Furthermore, Frazier testified that he had reviewed and approved the project and its contents during the time the project was being developed by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

    v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA Fla. 1977). The Department must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

14. Pertinent to this case, Sections 475.25(1)(b),(c) and (e), Florida Statutes, provide:

    
    

    1. The commission . . . may place a licensee

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

* * *

1. Has been guilty of . . . misrepresentation

   . . . in any business transaction in this state or any other state, nation, or territory . . . It is immaterial to the guilt of the licensee that the victim or intended victim of the mis-

   conduct has sustained no damage or loss . . . .

2. Has advertised property or services in a manner which is . . . deceptive,or misleading in form or content.

* * *

(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. (Emphasis supplied)

16. It is clear from the record that the materials mailed to Paul Younts by the Respondent were misleading and deceptive, and the Department has met its burden in that regard. However, it is equally clear from the record that Respondent was sincere in his action, albeit a "tad" misguided by his misunderstanding of the law in general and real estate law in particular. This was apparent from the remarks made by the Respondent at the hearing and in his proposed recommended order where he places so much emphasis on his credentials as a energy auditor and fails to address the issue of whether the contents of his letter misrepresented the facts and were deceptive advertising. Respondent is in need of a good refresher course in this regard. The record does not reflect any malicious intent on the part of the Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law and a review of the disciplinary guidelines set forth in Rule 60J2-24.001, Florida Administrative Code, it is recommended that the Commission enter a Final Order finding the Respondent guilty as charged in Count I and Count II of the Administrative Complaint. It is further recommended that the Commission reprimand the Respondent and require that Respondent complete a post-licensing course for salespersons as deemed appropriate by the Commission for the circumstances.

RECOMMENDED this day 10th of May, 1995, at Tallahassee, Florida.

WILLIAM R. CAVE, 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 10th day of May, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1598

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case.

Department's Proposed Findings of Fact.

1. Proposed findings of fact 1 through 6 and 8 are adopted in substance as modified in Findings of Fact 1 through 11.

2. Proposed finding of fact 7 is neither relevant nor material to this proceeding.

Respondent's Proposed Findings of Fact.

1. Proposed findings of fact 1 and 3 are adopted in substance as modified in Findings of Fact 11 and 6, respectively.

2. Proposed findings of fact 2, 4 and 5 are neither material nor relevant.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Business and

Professional Regulation Division of Real Estate

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

David Lloyd Ammons, Pro se 3829 Hibiscus Street

Sarasota, Florida 34232

Jack McRay, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Centre

Tallahassee, Florida 32399-0792

Ms. Darlene F. Keller Division Director Division of Real Estate

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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: 94-001598

Orders for Case No: 94-001598