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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-7132

)

TERRY LOU HAIG, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 18, 1995, in Orlando, Florida. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Senior Attorney

Department of Professional Regulation Division of Real Estate

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

For Respondent: Terry Lou Haig, pro se

1959 Ranchland Trail

Longwood, Florida 32754 STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether Respondent violated Sections 475.42(1)(a), 475.25(1)(b), and 475.25(1)(e), Florida Statutes, 1/ by: operating as a sales agent for a person not registered as his employer; misrepresenting or concealing his capacity as a sales person; or being culpably negligent.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on June 24, 1994. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of: Ms. Kathleen Koeberich, an investigator for Petitioner; Mr. Frank Canty, Ms. Diane Schenault,

Ms. Delores Patterson, and Mr. Robert Sirianni, real estate brokers. Respondent testified in his own behalf and submitted no exhibits for admission in evidence.

Petitioner submitted six exhibits for admission in evidence. Petitioner's Exhibit 1 is a copy of a Request for License or Change of Status filed with Petitioner by Mr. Canty on October 28, 1993. Petitioner's Exhibit 2 is a copy of a Request for License or Change of Status filed by Mr. Sirianni on November 22, 1993. Petitioner's Exhibit 3 is a copy of a contract for the purchase and sale transaction at issue in this proceeding. Petitioner's Exhibit 4 is a copy of Respondent's business card. Petitioner's Exhibit 5 is a copy of a memorandum sent by Mr. Sirianni to Ms. Patterson via telefax. Petitioner's Exhibit 6 is a copy of Respondent's licensure file. Petitioner's exhibits were admitted in evidence pursuant to the stipulation of the parties.

A transcript of the formal hearing was not requested by either party. Petitioner timely filed its proposed recommended order ("PRO") on April 27, 1995. Respondent did not file a PRO. Proposed findings of fact in Petitioner's PRO are accepted in this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate sales person under license number 0466167.

   
   

2. Respondent's real estate license was invalid during the dates at issue in this proceeding. The license expired on September 30, 1993, and was activated on February 1, 1994. The last license issued to Respondent was issued as a voluntary inactive sales person at 171C Springwood Boulevard, Longwood, Florida.

   
   

3. On October 28, 1993, Mr. Frank Canty, terminated Respondent from employment at Frank G. Canty Realty ("Canty"). Mr. Canty notified Respondent of the termination by telephone on or about the same day and immediately filed the form required to notify the Florida Real Estate Commission (the "Commission") of Respondent's change in status. 2/

   
   

4. Mr. Robert Sirianni and Respondent are long time friends. Mr. Sirianni is the broker and owner for Bay Hill Realty, Inc ("Bay Hill").

   
   

5. Mr. Sirianni hired Respondent as a real estate sales person for Bay Hill on November 22, 1993. Mr. Sirianni signed the completed form required to notify the Commission that Respondent had placed his license with Bay Hill.

   
   

6. Mr. Sirianni gave the completed form to Respondent to hand deliver to the Commission. However, Respondent failed to deliver the form to the Commission.

   
   

7. On November 22, 1993, Respondent showed a condominium to prospective buyers. Respondent represented that he was an employee of Canty. Respondent delivered a written offer of $36,000 to Watson Realty Corporation ("Watson"), the listing office. Respondent used his Canty business card in the transaction.

   
   

8. A representative of Watson contacted Mr. Canty to discuss some problems in the transaction. Mr. Canty informed the representative that Respondent was terminated from Canty on October 28, 1993.

9. Watson caused a new contract to be executed between the buyers and sellers showing Watson Realty as the listing and selling office. The transaction closed on the new contract.

   
   

10. On December 13, 1993, Mr. Sirianni faxed a memorandum to Watson claiming the sales commission purportedly earned by Respondent. Mr. Sirianni withdrew the demand after learning of the facts and circumstances surrounding the matter.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

12. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. Respondent operated as a sales person for a person not registered as his employer in violation of Section 475.42(1)(b). On November 22, 1993, and thereafter, Respondent operated as an employee of Canty in connection with the purchase and sale of a condominium listed by Watson. Respondent's employment with Canty was terminated on October 28, 1993. After that date, Respondent operated as an agent of Canty when Canty was not registered as Respondent's employer.

    
    

14. Respondent misrepresented his status as a licensed real estate sales person and as an employee of Canty in violation of Section 475.25(1)(b). Respondent's license expired on September 30, 1993, and was not activated until February 1, 1994. Respondent was terminated from Canty on October 28, 1993, approximately 25 days before Respondent's participation in the Watson transaction began.

    
    

15. Respondent's misrepresentation and failure to timely notify the Commission of his employment at Bay Hill constituted culpable negligence in violation of Section 475.25(1)(b). Respondent knew, or should have known, that his license expired approximately 53 days prior to the time that he first represented himself as a licensed real estate sales person in the Watson transaction. Respondent also knew that he had been terminated from Canty approximately 25 days prior to representing himself as a Canty sales agent in the Watson transaction. Finally, Respondent failed to notify the Commission that he had placed his license with Bay Hill. Such notice would have alerted the Commission that Respondent was operating as a sales person after his license expired. 3/

    
    

16. Petitioner recommends, in its PRO, that Respondent be fined $1,000, receive a written reprimand, and be placed on probation for one year. The recommended disciplinary action is appropriate under the facts of this proceeding and Florida Administrative Code Rules 21V-24.001(3) and (4).

    
    

17. The fine must be paid within a reasonable period of time. However, Respondent should be allowed to pay the fine over a period of time that takes into account Respondent's employment status. Such an accommodation is appropriate in light of the fact that Respondent has no prior disciplinary

action and the fact that this proceeding does not involve any financial loss or other actual harm to a member of the public or another licensee.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order: finding Respondent guilty

of violating Sections 475.25(1)(b), 475.25(1)(e), and 475.42(1)(b); authorizing

the issuance of a written reprimand; placing Respondent on probation for one year; and imposing a fine of $1,000 to be paid in accordance with this Recommended Order.

RECOMMENDED this 9th day of May, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 9th day of May 1995.

ENDNOTES

1/ All section references are to Florida Statutes (1993) unless otherwise stated.

2/ The termination involved matters other than Respondent's expired license.

3/ As a result of the violations of Secs. 475.25(1)(b) and 475.42(1)(b), Respondent violated Sec. 475.25(1)(e).

COPIES FURNISHED:

Darlene S. Keller, Division Director Division of Real Estate

Department of Professional Regulation

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

Lynda Goodgame General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Steven W. Johnson, Esquire Senior Attorney

Department of Business and Professional Regulation

Division of Real Estate Legal Section - Suite N308

Hurston Building, North Tower

400 West Robinson Street Orlando, Florida 32801-1772

Terry Lou Haig, pro se 1959 Ranchland Trail

Longwood, Florida 32754

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: 94-007132

Orders for Case No: 94-007132