STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

DIANE THOMPSON,

Respondent.

)

)

)

)

)

)

) Case No. 03-0360PL

)

)

)

)

)

RECOMMENDED ORDER

Notice was provided, and on March 27, 2003, a formal hearing was held in this case in accordance with Sections

120.569 and 120.57, Florida Statutes. The hearing location was Clearwater, Florida, and was conducted by Fred L. Buckine, Administrative Law Judge, the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Christopher J. DeCosta, Esquire

Department of Business and Professional Regulation

400 West Robinson Street, Suite N802 Hurston Building, North Tower Orlando, Florida 32801-177

For Respondent: Jawdett I. Rubaii, Esquire

1358 South Missouri Avenue Clearwater, Florida 33756

STATEMENT OF THE ISSUE

The issue is whether Respondent's, Diane Thompson, a licensed Florida real estate broker, license should be disciplined for fraud, misrepresentation, concealment, false promises, 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.

PRELIMINARY STATEMENT

On August 22, 2002, Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), filed an one-count Administrative Complaint against Respondent alleging that Respondent had violated Section 475.25(1)(b), Florida Statutes. Respondent timely requested a formal hearing to contest those allegations.

On January 31, 2003, the Department referred Respondent's Election of Rights, Respondent's Motion to Dismiss the Administrative Complaint, and the Department's Traverse/Response to Respondent's Motion to Dismiss the Administrative Compliant to the Division of Administrative Hearings (DOAH), and this cause was assigned DOAH Case No. 03-0360PL.

On February 14, 2003, an Order denying Respondent's Motion to dismiss the Administrative Compliant was entered. On February 17, 2003, a Notice of Hearing scheduling the final hearing by Video Teleconference for March 27, 2003, at

9:00 a.m., with sites in Tampa and Tallahassee was entered. On February 21, 2003, Respondent's Objection to Video Teleconference and Request for New Scheduling Order in Clearwater, Florida, was filed, and on March 5, 2003, a telephonic conference was held on Respondent's motions. On March 12, 2003, an Amended Notice of Hearing scheduling the final hearing for March 27, 2003, in Clearwater, Florida, was entered.

On March 20, 2003, Petitioner filed a Motion to Continue and Re-Schedule the final hearing, and by Order of March 21, 2003, Petitioner's motion was denied. Both parties appeared at the appointed time and place.

At the final hearing, the Department presented the testimony of Julie Johnson and submitted two exhibits (P-1 and P-2), which were admitted into evidence. Respondent testified

in her own behalf and submitted five exhibits (R-1 through R-5), which were admitted into evidence. At the request of the Department, official recognition was taken of all pleadings filed with the Clerk of DOAH by the parties and of applicable statutes. All evidentiary rulings and denial of Respondent's Motion for Directed Verdict at the close of Petitioner's case are contained in the one-volume Transcript of this proceeding filed on April 7, 2003.

Respondent and the Department filed their Proposed Recommended Orders on April 17, and April 21, 2003, respectively, and they were considered by the undersigned in preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Diane Thompson, at all times material, was a Florida real estate broker, issued license number 0582890 in accordance with Chapter 475, Florida Statutes; was employed by Di-All Company, 5607 Interbay Boulevard, Tampa, Florida; and was subject to the regulatory jurisdiction of the Florida Real Estate Commission (Commission).

2. Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), has jurisdiction over disciplinary proceedings for the Commission. At the Commission's direction, the Department is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction.

3. Diane Thompson, as the Listing Broker for Di-All Company, entered into a Residential Listing Contract (Listing Contract) with the seller (Metcalfe), for the exclusive right to secure a purchaser for Metcalfe's waterfront residential villa located at 2132 Cedar Drive, Dunedin, Florida, at an asking price of $350,000. The Listing Contract was effective June 28, 1998, with an expiration date of May 28, 1999. For procuring a

   purchaser of this property, Diane Thompson was entitled to a brokerage fee totaling seven percent of the sale price, with a minimum fee of $2,500, plus a closing fee of $145. The Listing Contract provided for Diane Thompson to receive a commission should the property be sold by and through another broker or agent during the exclusive listing period of April 9, 1999, through October 19, 1999.

4. Diane Thompson procured the exclusive Listing Contract for Di-All Company. Both are identified collectively in the Listing Contract as the "Listing Agent."

5. The District Six Residential Profile Sheet, signed by Metcalfe on October 19, 1998, extended the exclusive Listing Contract's original expiration date from October 19, 1998, to October 19, 1999.

6. Initially unknown to Diane Thompson and at some time after execution of the exclusive Listing Contract, Metcalfe granted power of attorney to sell her waterfront residential property to her daughter, Pam Houle. Through that power of attorney, Pam Houle contracted with another broker and eventually sold Metcalfe's waterfront property. Because of that sale, Diane Thompson was not paid the Listing Agent's commission as provided for in her exclusive Listing Contract with Metcalfe. Attempts by Diane Thompson to resolve this dispute with Metcalfe, with Pam Houle, and with Pam Houle's attorney failed.

7. At some time in June of 1998, Julie Johnson and a male friend flew from New Hampshire to Florida. The intent and purposes for their trip to Florida included looking for home sites and business sites as potential purchases. During her initial visit to Florida and on or about June 28, 1998, Julie Johnson appeared at Diane Thompson's home/office in response to Diane Thompson's media advertisements listing Metcalfe's waterfront property for sale.

8. Responding to Julie Johnson's interest as a potential buyer of waterfront properties, Diane Thompson drove Julie Johnson to 2123 Cedar River, Dunedin, Florida, Metcalfe's waterfront residential villa. After showing Julie Johnson this property and after Julie Johnson's inspection of this residence, Diane Thompson drove Julie Johnson back to her office. At her office, Diane Thompson prepared the offer to purchase Metcalfe's property ("Residential Sale and Purchase Contract") and observed Julie Johnson sign her name to the offer to purchase document. Thereafter, and for the purpose of presenting Julie Johnson's offer to purchase to Metcalfe and/or to Metcalfe's agents for consideration, Diane Thompson made many attempts to contact Metcalfe, to contact Pam Houle, and to contact Pam Houle's attorney. Diane Thompson received no response from Metcalfe, no response from Pam Houle, and no response from Pam Houle's attorney.

9. Because of Diane Thompson's lack of success to make contact with Metcalfe or her agents for the purpose of presenting Julie Johnson's offer to purchase, She did not request that Julie Johnson pay the $1,000 deposit, identified on the offer to purchase contract as the "Purchase Price (a)." Following her failure to make contact with Metcalfe, Diane Thompson introduced Julie Johnson to Barbara Larkins, a friend and real estate broker, who also listed waterfront properties for sale.

10. At some period in 1999, Diane Thompson placed an advertisement for an Independent Contractor (licensed real estate person) in the local media. During the 1999 period when Diane Thompson's advertisement was in the media, Julie Johnson was present in Florida. Julie Johnson became aware of Diane Thompson's advertisement for an Independent Contractor and personally responded to the advertisement notice. Julie Johnson's response to Diane Thompson's advertisement was the second meeting of Diane Thompson and Julie Johnson.

11. In October of 1999, Julie Johnson secured her Florida real estate license. On December 21, 1999, Julie Johnson signed an Independent Contractor agreement with Diane Thompson. Diane Thompson personally observed Julie Johnson sign her name to the Independent Contractor agreement.

12. Julie Johnson signed her Florida driver's license, and a copy thereof was admitted into evidence establishing the fact that Julie Johnson's signature on the two documents and her signature on her Florida driver's license are not dissimilar.

13. The waterfront property owned by Metcalfe, which Diane Thompson, as the Listing Broker for Di-All Company, had a Listing Contract for the exclusive right to procure a purchaser for Metcalfe's resident, was sold by and through another licensed real estate broker. When she became aware of that sale, Diane Thompson sought the brokerage commission as provided in her exclusive Listing Contract. Unable to resolve her dispute with Metcalfe, Diane Thompson filed a lawsuit in Pinellas County naming Metcalfe as defendant.

14. During that circuit court proceeding, counsel for Diane Thompson proffered Diane Thompson's April 9, 1999, Residential Sale and Purchase Contract signed by Julie Johnson. In opposition to counsel for Diane Thompson's proffer, counsel for Metcalfe proffered Julie Johnson's December 19, 2002, affidavit that stated, in pertinent part: "On April 9, 1999, I was residing and working in Rochester, New Hampshire, while the signature is similar to mine, I do not recall having signed this document and never intended to make an offer to purchase

    Ms. Metcalfe's home."

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has party and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

16. Section 475.25, Florida Statutes, under which Diane Thompson has been charged, sets forth the acts for which the Commission may impose discipline. This statute 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; has violated a duty imposed upon her or him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; 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. 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.

       
       

17. Being penal in nature, Section 475.25, Florida Statutes, “must be construed strictly, in favor of the one against whom the penalty would be imposed.” Munch v. Department of Professional Regulation, Div. of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992).

18. A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a professional license is penal in nature. State ex rel. Vining v. Florida Real Estate Commission,

    281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the Department must prove the charges against Diane Thompson by clear and convincing evidence. Department of Banking and Finance, Div. of Securities and Investor Protection

    v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996) (citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987); Nair v. Department of Business & Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

19. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a “workable definition of clear and convincing evidence” and found that of necessity such a definition would need to contain “both qualitative and quantitative standards.” The court held that

    clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Id. The Florida Supreme Court later adopted the Fourth District’s description of the clear and convincing evidence standard of proof. Inquiry Concerning Davey, 645 So. 2d 398,

    404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that “[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (1992)(citation omitted).

20. In order to prove a violation of Section 475.25(1)(b), Florida Statutes, the Department must establish that the licensee’s conduct was intentional, not merely negligent. See Munch, 592 So. 2d at 1143-44.

21. The evidence is not so compelling as to produce in the undersigned's mind a firm belief or conviction, without hesitancy, that Diane Thompson intentionally committed fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction. Indeed, the undersigned is not even persuaded, by a preponderance of evidence, that Diane Thompson's handling of the business transaction as the broker in possession of an exclusive listing contract on Metcalfe's property, wherein another real estate broker sold the property and refused Diane Thompson's request for payment of the brokerage commission as provided in her exclusive Listing Contact, and her resulting relief in circuit court, was in any manner negligent; a finding that, in any event, would not support a determination of guilt under Section 475.25(1)(b), Florida Statutes.

22. First, Diane Thompson, on two separate occasions, personally observed Julie Johnson sign her name. She is familiar with Julie Johnson's signature, and she is therefore competent to give her opinion regarding the genuineness of Julie

    Johnson's signature. Second, Diane Thompson relied upon a document signed in her presence and relied upon her attorney to make the decision to proffer that document in the circuit court litigation. Third, Julie Johnson's signature on two documents and Julie Johnson's signature on her Florida driver's license are not dissimilar. Fourth, Julie Johnson, by her own admission, was present in Florida on two separate occasions pertinent to the two major transactions in question in this proceeding. Therefore, Diane Thompson is not guilty of intentional wrong-doing in connection with the proffer of the offer to purchase contract bearing the signature of Julie Johnson in a circuit court proceeding.

23. Additionally, Julie Johnson's affidavit1 contains two ambiguous and equivocal declarations, i.e., "On April 1999, I was residing and working in Rochester, New Hampshire . . . " and ". . . while the signature is similar to mine, I do not recall having signed this document." (emphasis added) Neither her residence, her work place, nor her memory was in question. For those reasons the undersigned determined that Julie Johnson's affidavit was nonspecific and lacking in probative value. Finally, the undersigned, who was able personally to observe Diane Thompson's and Julie Johnson's credibility and demeanor as witnesses at the hearing, credits and believes Diane Thompson's testimony that Julie Johnson was in Florida on two separate

    occasions and on each of those occasions Julie Johnson came to her office. Diane Thompson personally observed Julie Johnson sign the offer to purchase contract and personally observed Julie Johnson sign the Independent Contractor agreement.

    Accordingly, Diane Thompson is not guilty of the offense charged in Count I of the Administrative Complaint.

24. The undersigned is not convinced that Diane Thompson had a duty to demand, at the time Julie Johnson signed the offer to purchase contract and prior to presentation of that offer to Metcalfe for consideration of the buyer's offer, that Julie Johnson pay to her the $1,000 deposit money as the Department has argued in its Proposed Recommended Order. The Department's attempt, through the questioning of Diane Thompson during the hearing, to impose upon Diane Thompson an admission of knowingly violating Section 475.278, Florida Statutes, by not providing an agency disclosure and not providing a pre-qualification letter to Metcalfe regarding Julie Johnson's creditworthiness, ignores Diane Thompson's responses. First, the Department presented no evidence that Section 475.278, Florida Statutes, in fact, requires such activities. Second, the Department's one-count Administrative Complaint charged Diane Thompson with violation of Section 475.25(1)(b), Florida Statutes. The Department did not charge Diane Thompson with violation of Section 475.278, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent, Diane Thompson, not guilty of the charge brought against her and dismiss the Administrative Complaint filed in this proceeding.

DONE AND ENTERED this 5th day of May, 2003, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 5th day of May, 2003.

ENDNOTE

1/ Petitioner's counsel's reliance on Huff v. State, 437 So. 2d 1087 (Fla. 1983), for the purpose of precluding the undersigned from admitting in evidence a copy of Julie Johnson's Florida driver's license containing Julie Johnson's signature on the legal holding that a jury is not competent to determine or compare signatures without testimony of an expert, is misplaced in these proceeding.

In the Huff criminal prosecution, the State indicated it would have a handwriting expert perform an analysis and provide defense with the result. The State did not do as stated. In review, the court held that it was reversible error in

prosecution of the son for murdering his parents to deny mistrial when the State's attorney implied in closing argument that the son had forged the deceased father's name to guarantee an agreement where the State had offered no evidence regarding the forgery and evidence of guilt was not the strongest. Under those circumstances, the court concluded that: "[a] jury is not competent to make handwriting comparison without aid of expert testimony." Id. at 1090.

The case at bar is an administrative proceeding. Second, the Department offered no handwriting expert analysis evidence of forgery, and the Department through its only witness, Julie Johnson, offered no testimony that someone forged her name. In fact, the Department's one witness, admitted that: (1) she did not recall signing the offer document-not that it was not her signature, (2) she never stated that she did not sign the document, (3) she never stated that someone forged her signature, and (4) she admitted that the signatures on each document were similar to her signature.

Admitting the copy of Julie Johnson's Florida driver's license in evidence, for the purposes of comparison by person(s) familiar with the signature in question, is based upon the authority in Clark v. State, 114 So. 2d 197 (Fla. 1st DCA 1959). The court in that prosecution for uttering a forged written order for payment of money, knowing the same to be false and forged, concluded that a jury was not competent to compare handwritings and reach a conclusion absent the testimony of a skilled or expert witness. The court authorized admission of a witness' opinion testimony regarding handwritings when the witness is sufficiently acquainted with the handwriting of the person. In the case at bar, Diane Thompson was sufficiently acquainted with Julie Johnson's signature, having observed Julie Johnson sign at least two documents in her presence and, thus, able to give her opinion of genuineness of Julie Johnson's handwriting.

COPIES FURNISHED:

Christopher J. DeCosta, Esquire Department of Business and

Professional Regulation

400 West Robinson Street, Suite N802 Orlando, Florida 32801

Jawdett I. Rubaii, Esquire 1358 South Missouri Avenue Clearwater, Florida 33756

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Nancy P. Campiglia, Acting Director Division of Real Estate

Department of Business and Professional Regulation

400 West Robinson Street, Suite 802, North Orlando, Florida 32801

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: 03-000360PL

Orders for Case No: 03-000360PL