STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3608

)

STEWART S. ANGEL, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Carolyn

S. Holifield, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 26, 1995, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Steven W. Johnson Division of Real Estate

400 West Robinson Street, Number N-308 Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Stewart S. Angel, Jr.

Post Office Box 41465

St. Petersburg, Florida 33743-2465 STATEMENT OF THE ISSUES

Whether the Respondent, Stewart S. Angel, Jr., committed the offenses alleged in the Administrative Complaint entered by the Department of Business and Professional Regulation on April 20, 1995, and, if so, what discipline should be imposed against Respondent's real estate license.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 20, 1995, Petitioner, Department of Business and Professional Regulation (Department), charged that Respondent was guilty of the following: (1) misrepresentation, concealment, false promises, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes; (2) operating as a broker without being the holder of a valid and current license as a broker in violation of Section 475.42(1)(a), Florida Statutes; (3) failing to notify the Petitioner of a change of address no later than ten (10) days after the change in violation of Section 475.23; and (4)

advertising services in a manner which is fraudulent, false, deceptive, or misleading in form or content in violation of Section 475.25(1)(c), Florida Statutes.

Respondent timely filed an Election of Rights form with the Department disputing the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing. By letter dated July 12, 1995, the Department referred the matter to the Division of Administrative Hearings to conduct a formal proceeding.

At the formal hearing, the Department presented the testimony of Juanel Topper, a real estate broker. Respondent testified on his own behalf.

Petitioner offered three (3) exhibits into evidence, and Respondent offered one

(1) exhibit into evidence, all of which were admitted.

A transcript of the formal hearing was not requested by either party. The Department timely filed its Proposed Recommended Order. Respondent filed no proposed recommended order. Petitioner's Findings of Fact contained in its Proposed Recommended Order have been treated in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record contained herein, I make the following findings of fact.

1. The Department is the agency responsible for licensing, regulating, and disciplining real estate broker-salespersons in the State of Florida.

   
   

2. Respondent's Florida real estate broker-salesperson license number 0389600 was originally issued on December 19, 1983. His real estate license was active in Florida between June 1, 1992 and July 1, 1993. During this period, Respondent was registered as a broker-salesman for Klein and Heuchan, Inc., located in Clearwater, Florida.

   
   

3. Respondent's real estate license expired on or about July 1, 1993, and was activated on March 14, 1995. Between March 14, 1995 and July 31, 1995, Respondent was a broker-salesperson with Viewpoint Realty in Belleair Bluffs, Florida.

   
   

4. During the dates at issue in this proceeding, Respondent's real estate license was invalid.

   
   

5. In the summer of 1993, Respondent was employed as a mortgage loan consultant by Savings of America, St. Petersburg, Florida. In this position, Respondent worked directly with real estate brokers to provide financing for the sale of real estate transactions in the Tampa Bay area. On or about July 1, 1993, Respondent took steps to place his broker-salesperson license with Ahmanson Investments, the real estate division of Savings of America.

   
   

6. On June 29, 1993, Respondent completed a Department form entitled "Request for License or Change of Status" (Request). The Request indicated that the broker employer for whom Respondent would be employed was Ahmanson Investments. After completing the "Applicant Section" of the form, Respondent submitted the Request to his supervisor, who then forwarded it to Mary Adair,

   the broker of record for Ahmanson Investments. The "Broker/Employer Section" of the request was completed and executed by Mary Adair.

   
   

7. The completed Request was forwarded to the Regional Office of Savings of America to be distributed to the proper authorities. Respondent was told by Savings of American/Ahmanson Investments that the Department had been notified that Respondent's broker-salesperson license had been transferred to Ahmanson Investments.

   
   

8. Based on representations of his employer, Savings of America, Respondent believed that the Request had been properly filed with the Department and that his real estate license was in effect. Respondent learned after August 1994, that the Request was never sent to the Department by Savings of America.

   
   

9. As a result of Respondent's improper reliance on Savings of America to file the Request, Respondent did not file the Request with the Department. By statute, Respondent was required to notify the Department within ten (10) days of any address change or change in employer. By failing to properly notify the Department, Respondent's license ceased to be in effect when he placed it with and was employed by Ahmanson Investments in July 1993.

   
   

10. Respondent operated as a real-estate broker-salesperson while employed with Ahmanson Investments although his Florida real estate license ceased to be in effect during the time he was so employed.

    
    

11. In August 1994, Respondent contacted Juanel Topper of Topper Realty, Inc., about purchasing a house that was listed by Topper Realty, Inc. Respondent indicated to Ms. Topper that he was interested in purchasing the house as a personal residence for himself and his wife. On or about August 14, 1994, Ms. Topper showed the property to Respondent and his wife.

    
    

12. Respondent visited the property three or four times after his initial contact with Ms. Topper and asked Ms. Topper several questions regarding the property. During one of his discussions with Ms. Topper concerning the property, Respondent gave Ms. Topper a business card bearing the name "Stewart

    S. Angel Realty, Realty CRS CRB-Developer". The card listed a toll free telephone number, a Florida telephone number, and a St. Petersburg, Florida address. Printed on the top left hand corner of the card was "Michigan- Florida". The business card given to Ms. Topper had a line drawn through the word "Florida" that was printed in the top left corner.

    
    

13. The Respondent is a licensed real estate broker in Michigan and testified that Stewart A. Angel Realty is a Michigan company. However, the Stewart A. Angel Realty card lists only a Florida address. Although there is a toll free telephone number printed on the card, the only other telephone number on the card is a Florida number. The information on the card makes it appear that Stewart A. Angel Realty is a Florida business.

    
    

14. In August 1994, Ms. Topper telephoned Respondent to answer several questions he had concerning the property. Ms. Topper called one of the telephone numbers shown on the "Stewart S. Angel Realty" business card that Respondent had given to her. The answering machine for that number stated that the name of the business called was "Angel Realty". Ms. Topper confirmed with the Department that Angel Realty was not registered in Florida.

15. When Respondent initially inquired about the property, he did not reveal to Ms. Topper that he was an agent. However, on a previous occasion, Respondent had given Ms. Topper a business card which indicated that he was a conventional loan consultant for Savings of America. The business card had the following designations listed immediately after Respondent's name: "GRI, CRS, and CRB".

    
    

16. On or about August 24, 1994, Respondent advised Ms. Topper that as an active real estate broker, he wanted to participate in the commission paid if in fact he purchased the property.

    
    

17. Ms. Topper confronted Respondent about not revealing to her initially that he was a broker and would want to share in any commission earned as a result of the sale of the property.

    
    

18. Respondent believed that Ms. Topper was aware that he considered himself to be a licensed real estate broker-salesperson. Respondent's belief was based on previous business dealings between himself and Ms. Topper as well as the fact that she had received Respondent's Savings of America business card.

    
    

19. Respondent did not purchase the property which was the subject of discussions between Respondent and Ms. Topper. No agreement was ever executed by the Respondent and Ms. Topper regarding the sale/purchase of the property. Neither was any money ever exchanged between the parties regarding the sale or purchase of the property.

    
    

20. Respondent has been a licensed real estate broker-salesperson for almost twelve years and has not had any other complaints filed against him prior to the instant case.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

22. The Department is statutorily empowered to suspend revoke, or otherwise discipline the real estate license of any licensee in Florida found guilty of any act enumerated in Section 475.25, Florida Statutes.

    
    

23. The Department 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).

    
    

24. The Administrative Complaint against Respondent contains four counts. Count I alleges that the Respondent is guilty of misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction, in violation of Section 475.25 (1)(b), Florida Statutes.

    
    

25. In Count II, the Department alleges that Respondent is guilty of operating as a broker without being the holder of a valid and current license, in violation of Sections 475.42 (1)(a) and 475.25 (1)(e), Florida Statutes.

    
    

26. Count III of the Administrative Complaint alleges that Respondent failed to notify the Petitioner of a change of address no later that ten (10)

    days after the change, in violation of Sections 475.23 and 475.25 (1) (e), Florida Statutes.

    
    

27. The Department alleges in Count IV of the Administrative Complaint that Respondent advertised services in a manner which was fraudulent, false, deceptive, or misleading in form or content, thereby violating Section 475.25

    (1) (c), Florida Statutes.

    
    

28. In regard to Count I, Section 475.25(1)(b), Florida Statutes, authorizes disciplinary action if a licensee, registrant, permittee, or applicant:

    
    

    (b) Has been guilty of fraud, misrepresent- ation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction ... has violated a duty imposed upon him by law or

    by the terms of a listing contract...or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design, or scheme....

    
    

29. The Department argued that in initial discussions between Respondent and Ms. Topper, Respondent failed to reveal that he was a real estate broker- salesperson. It is undisputed that in a subsequent conversation with Ms. Topper, Respondent indicated that he wanted to share in the commission should he purchase the property that was listed by Ms. Topper's real estate company. According to Ms. Topper's testimony, only after the Respondent indicated a desire to share in the commission did she know that Respondent was a real estate broker. The Department alleged that Respondent's failure to disclose that he was a real estate broker during his initial conversation with Ms. Topper about the potential purchase of property constituted a violation of Section 475.25 (1)(b), Florida Statutes.

    
    

30. Section 475.25 (1)(b), Florida Statutes, is penal in nature. As such, it must be strictly construed in favor of the one against whom the penalty would be imposed. See Munch v. Department of Business and Professional Regulation, Division of Real Estate, 592 So. 2d 1136, and 1143-1144, (Fla. 1st DCA 1992). That case further states:

    
    

    Reading the first clause of Section 475.25 (1)(b)

    ...and applying to the words used their usual and natural meaning, it is apparent that it is contem- plated that an intentional act be proved before a violation can be found.

    
    

31. The Department has failed to prove that Respondent violated Section

    475.25 (1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint. Under the circumstances of this case, the Department's position would have required Respondent to represent to Ms. Topper that he was a licensed real estate broker when he initially inquired about the property. Such a representation by Respondent would have been improper and illegal in light of the fact that Respondent was not licensed at the time in question, notwithstanding his subjective understanding to the contrary. Even if it is assumed that Respondent was licensed at the time of the transaction in question,

    no intentional act was proved. Accordingly, there would still be no violation of Section 475.25 (1)(b), Florida Statues.

    
    

32. The Department proved by clear and convincing evidence that Respondent operated as a real estate broker without holding a valid and current license as alleged in Count II of the Administrative Complaint. Respondent testified that he indicated to Ms. Topper a desire to share in the commission should he purchase the property listed by Ms. Topper's real estate company. Respondent's statement to Ms. Topper was based on his belief that at the time of the transaction he was properly licensed. This erroneous belief resulted in Respondent's operating as a real estate broker in violation of Section 475.42 (1)(a), Florida Statutes.

    
    

33. In regard to Count III of the Administrative Complaint, Section 475.23, Florida Statutes, provides in relevant part the following:

    
    

    A license shall cease to be in force whenever a broker changes his business address...or a salesperson working for a broker...changes employer. The licensee shall notify the commis- sion of the change no later than 10 days after

    the change, on a form provided by the commission.

    
    

34. The evidence presented at hearing established that Respondent failed to notify the Department that he changed employers on or about July 1, 1993. It is undisputed that Respondent completed the required form on June 29, 1993, which indicated a change in his employer. However, it was conceded by Respondent that he relied on his employer to submit the form to the Department and that the employer failed to do so. Therefore, Respondent's license ceased to be in effective as a matter of law on July 1, 1993, and remained ineffective until March 14, 1995.

    
    

35. Respondent failed to notify the Department of a change in his employer as required by Section 475.23, Florida Statutes, thereby violating Section

    475.25 (1)(e), Florida Statutes. Accordingly, Respondent is guilty of the violation alleged in Count III of the Administrative Complaint.

    
    

36. The Department has shown by clear and convincing proof that Respondent has violated Section 475.25 (1)(c), Florida Statutes, as alleged in Count IV of the Administrative Complaint. That section subjects a real estate broker to discipline if such person

    
    

    has advertised property or services in a manner which is fraudulent, false, deceptive, or mis- leading in form or content.

    
    

37. In this case, the business card provided to Ms. Topper by Respondent was misleading. On the card was printed the "Stewart S. Angel Realty" along with a Florida address and telephone number. The words "Michigan-Florida" were also printed on the card. It was established that this company was not registered in Florida. Therefore, notwithstanding Respondent's assertion that the card was only for his Michigan business, the information on the card makes it appear that Stewart S. Angel Realty is a registered to do business in Florida.

38. The Department has shown by clear and convincing proof that Respondent is guilty of the allegation set forth in Count IV of the Administrative Complaint.

    
    

39. The Department has recommended in it Proposed Recommended Order that the Respondent receive a written reprimand, be fined $1000.00, and complete a post-licensing course for brokers as prescribed by the Florida Real Estate Commission. The recommended disciplinary action is appropriate under the facts in this case and under the disciplinary guidelines set forth in Rule 21V-24.001, Florida Administrative Code. (This rule was subsequently transferred to Rule 61J2-24.001, Florida Administrative Code.)

    
    

40. 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 view of the fact that Respondent has had no prior disciplinary action and that this proceeding does not involve any financial loss or other actual harm to a member of the public or another licensee.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding that Respondent has violated Sections 475.42(1)(a), 475.23, and 475.25 (1)(c) and (e), Florida Statutes; issuing a written reprimand; and imposing a $1,000.00 to be paid in accordance with this Recommended Order.

RECOMMENDED this 2nd day of November, 1995, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

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 2nd day of November, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3608

To comply with the requirements of Section 120.59 (2), Florida Statutes. The following rulings are made on the Petitioner's proposed findings of fact:

Paragraph 1. Accepted and incorporated.

Paragraph 2. First sentence rejected as not supported by competent and substantial evidence. Second sentence accepted.

Paragraphs 3-9. Accepted and incorporated.

Paragraph 10. First sentence rejected as not supported by competent and substantial evidence. The evidence showed that in initial discussion with Ms. Topper, Respondent did not reveal that he was agent. Second sentence accepted.

Paragraph 11. Accepted.

COPIES FURNISHED:

Daniel Villazon, Esquire Steven W. Johnson, Esquire Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street #N-308 Post Office Box 1900

Orlando, Florida 32802-2465

Stewart S. Angel, Jr. Post Office Box 41465

St. Petersburg, Florida 33743-2465

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Henry M. Solares Division Director

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Business and Professional Regulation written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Business and Professional Regulation concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 95-003608

Orders for Case No: 95-003608