STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 96-4635

)

WILLIAM D. MANSER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on December 7, 1998, at Fort Lauderdale, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: William D. Manser, pro se

Post Office Box 93-5055 Margate, Florida 33093

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Real Estate (Petitioner) filed a two-count Administrative Complaint against William D. Manser (Respondent). Petitioner charged Respondent with the following: Count I-- violating Subsection 475.25(1)(b), Florida Statutes, by being 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; and Count II--violating Subsection 475.25(1)(d)1, Florida Statutes, by being guilty of failure to account or deliver funds. Respondent disputed the allegations of fact and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. On September 30, 1996, the matter was referred to the Division of Administrative Hearings.

By Order dated January 16, 1997, this matter was held in abeyance upon the request of the parties. Subsequently, this matter was rescheduled for hearing as the result of a status report requesting same. By Order dated February 3, 1998, this matter was again held in abeyance. Subsequently, this matter was again rescheduled for hearing. After several continuances, the hearing was held on December 7, 1998.

At hearing, Petitioner presented the testimony of two witnesses and entered three exhibits (Petitioner's Exhibits numbered 1-3) into evidence. Respondent testified in his own behalf and entered two exhibits (Respondent's Exhibits numbered 1-2) into evidence.

No transcript was ordered. The time set for filing post- hearing submissions was set for thirty (30) days after the date of the hearing. Petitioner timely filed its post-hearing submission on January 5, 1999. Respondent requested additional time to file his post-hearing submission, and Petitioner did not submit any opposition to the request. Respondent filed his post- hearing submission on January 18, 1999. The parties' post- hearing submissions have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, William D. Manser (Respondent) was licensed in Florida as a real estate broker, having been issued license number BK 0427410. Respondent was a broker/officer of United Equity Marketing, Inc., located at 6635 West Commercial Boulevard, Tamarac, Florida. Since October 1, 1995, his broker's license has not been on an active status due to non-renewal of the corporate registration.

2. By warranty deed dated February 14, 1992, James and Angela Cunduff became owners of property located at

   6531 Southwest Seventh Place, Fort Lauderdale, Florida. By Articles of Agreement for Deed dated February 25, 1992, James and Angela Cunduff agreed to convey the property to Respondent's corporation, United Capital Networks, Inc., if certain conditions were complied with. The conditions included Respondent's corporation making all the mortgage payments and paying the taxes

   on the property, and keeping the buildings on the property properly insured. In return, James and Angela Cunduff agreed, among other things, to execute a warranty deed to Respondent's corporation and to place the warranty deed in escrow. Respondent and the Cunduffs agreed that the Articles of Agreement for Deed would not be recorded.

3. Respondent looked upon himself and conducted his actions as the owner of the property at 6531 Southwest Seventh Place, Fort Lauderdale, Florida.

4. On October 31, 1995, Mary J. Augustine signed a lease agreement for the rental of a portion of the home, the rear of the home, located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. The rear area of the home had its own entrance. The rental was for one year, beginning November 15, 1995, and ending October 30, 1996.

5. Respondent used part of the home as a storage area. At the front of the home, there were two separate entrances. One of the separate entrances was for the storage area. The other separate entrance was for another area of the home.

6. The lease agreement indicated United Equity Markets, Inc., as the managing agent of the property. The lease agreement required signatures of the "Tenant" and the "Lessor."

   Ms. Augustine signed the lease as "Tenant," and Respondent signed as "Lessor," adding the word "Agent" next to his signature.

7. United Equity Markets, Inc., is Respondent's corporation.

8. Prior to the signing of the lease, Respondent had met with Ms. Augustine at the house at least twice before she signed the lease agreement. Respondent represented himself as the manager of the property.

9. The home was listed as a single-family residence. Ms. Augustine believed that the home would be occupied by Respondent, another tenant, and herself. The evidence is

   insufficient to show and make a finding that three families would live or had lived at the home.

10. In accordance with the lease agreement, Ms. Augustine gave Respondent $1,290, as a security deposit. Ms. Augustine had also given Respondent, prior to the security deposit, $645 for the first month's rent.

11. Ms. Augustine wanted to move into the rear portion of the home approximately two weeks prior to the beginning of the rental period. Respondent agreed that Ms. Augustine could have access to the home and clean the rear area where she was going to reside.

12. Ms. Augustine had problems with, such things as, the refrigerator, oven, and swimming pool. She decided not to rent the home.

13. Ms. Augustine demanded her deposit and first month's rent from Respondent. However, he refused to return the monies.

14. The lease agreement contained a default provision, providing for the recovery of damages by the lessor if the tenant defaulted. The lease agreement also contained a security provision, providing for the non-refundable nature of the security deposit under certain conditions, including termination of the lease prior to its expiration.

15. Ms. Augustine attempted but could not contact Respondent at his office because he had closed his office prior to October 1995.

16. Ms. Augustine attempted also to contact Respondent at the telephone number that he had provided her, which was his home number. She was again unsuccessful due to Respondent having his telephone disconnected because he had gone to New York to care for his ill sister.

17. Respondent did not provide Ms. Augustine with an accounting of the monies.

18. Respondent was conducting his own personal real estate transaction with Ms. Augustine.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

20. License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish by clear

    and convincing evidence the truthfulness of the allegations of the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

21. Section 475.25, Florida Statutes (1995), provides in pertinent part:

    1. The commission may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, 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, 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, nation, or territory; . . . It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public.

       * * *

       
       

       (d)1. Has failed to account or deliver to any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value However,

       if the licensee, in good faith, entertains doubt as to what person is entitled to the accounting and delivery of the escrowed property, or if conflicting demands have been made upon the licensee for the escrowed property, which property she or he still maintains in her or his escrow or trust account, the licensee shall promptly notify the commission of such doubts or conflicting demands and shall promptly:

       1. Request that the commission issue an escrow disbursement order determining who is entitled to the escrowed property;

       2. With the consent of all parties, submit the matter to arbitration;

       3. By interpleader or otherwise, seek adjudication of the matter by a court; or

       4. With the written consent of all parties, submit the matter to mediation. The department may conduct mediation or may contract with public or private entities for mediation services. However, the mediation process must be successfully completed within

       90 days following the last demand or the licensee shall promptly employ one of the other escape procedures contained in this section. Payment for mediation will be as agreed to in writing by the parties. The department may adopt rules to implement this section.

       
       

       If the licensee promptly employs one of the escape procedures contained herein, and if she or he abides by the order or judgment resulting therefrom, no administrative complaint may be filed against the licensee for failure to account for, deliver, or maintain the escrowed property.

       
       

22. Petitioner failed to demonstrate that Respondent violated Subsection 475.25(1)(b), Florida Statutes. A licensee remains subject to the provisions of the said Subsection even where the licensee is conducting his own personal real estate transaction. Sellars v. Florida Real Estate Commission, 380 So. 2d 1052 (Fla. 1st DCA 1979). Petitioner argues that Respondent engaged in dishonesty by confusing Ms. Augustine by indicating on the lease agreement that he was the agent for the lessor/owner and by verbally indicating to her that he represented the owner. Petitioner's argument is not persuasive. The evidence shows that, even though the Articles of Agreement for Deed was not recorded, for all intents and purposes, Respondent's company owned the property. As a result, it was not confusing or

    misleading, and, therefore, not dishonest, for Respondent to indicate on the lease agreement that he was acting as the agent for the lessor or the owner of the property; or to inform

    Ms. Augustine that he was the agent for the owner.

    
    

23. Petitioner argues further that Respondent engaged in misrepresentation by wrongfully informing Ms. Augustine that the property being rented was available for a three-family occupancy. The evidence fails to show that Respondent made such a representation to Ms. Augustine.

24. The case at bar appears to be a matter for the civil courts where a determination can be made whether Respondent correctly interpreted the lease agreement and whether he is entitled to retain the money given to him by Ms. Augustine. Fleischman, supra.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against William D. Manser.

DONE AND ENTERED this 24th day of February, 1999, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1999.

ENDNOTE

1/ Golub v. Department of Professional Regulation, 450 So. 2d

229 (Fla. 5th DCA 1984) is not found to be persuasive.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

William D. Manser, pro se Post Office Box 93-5055 Margate, Florida 33093

Linda L. Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Center

1940 North Monroe Street Tallahassee, Florida 32399-0792

James Kimbler, Acting Division Director Division of Real Estate

Department of Business and Professional Regulation

Post Office Box 1900 Orlando, Florida 32802-1900

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004635

Orders for Case No: 96-004635