The Issue The issue for consideration in this case is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Division of Real Estate, was the agency in Florida responsible for the regulation of the real estate profession and the licensing of real estate professionals within this state. Respondent was licensed as a real estate sales person and employed as such in association with Today Real Estate, Inc., a real estate corporation trading as Re/Max Today, located at 2451-1 McMullen Booth Road in Clearwater, Florida. On July 16, 1997, James E. Brown and his wife submitted an offer to purchase a house located at 9813 Palmer Drive in New Port Richey. The offer was submitted by the Browns through their real estate agent, Nancy Riley, to the sellers who were represented by Respondent. As a part of the sales package, a home inspection report was completed on July 21, 1997, which indicated that the "air conditioning does not appear to be cooling enough." Thereafter, Respondent contacted Alvarez/Taylor, a plumbing and air conditioning company, to examine the unit and a representative of that company, William Taylor, went to the property on July 25, 1997, to inspect the unit. When he arrived, he found no one there and the house locked. He contacted his dispatcher who advised him to wait, and within a few minutes, Ms. Riley showed up. She let him in the house to do the inspection. The unit was low on freon, but the big problem with the unit that Taylor found was that it was old -- about 13 years old -- and at that age, he contends, units usually lose freon. He made an oral report to Ms. Riley who authorized him in writing to do whatever work was necessary on the unit to get it working properly. He installed the freon but that did not completely correct the problem. He advised Ms. Riley that he felt the unit should be replaced because of its age. She did not seem concerned about it, but she did not authorize the repairman to replace it. When he had done what he could do, short of replacing the unit, she again signed the work order, indicating the work had been done, and he gave her the pink copy of the form. This form showed his recommendation that the unit be replaced. According to Respondent, Ms. Riley called her after the air conditioner repairman had been at the house. She said the unit was working but was an older unit and somewhere down the line would have to be replaced. Respondent also claims that Ms. Riley told her she, Ms. Riley, had called Mrs. Brown and read her the report, and the Browns "were OK with it." Respondent did not see the repairman's report until July 28, 1997. At that time, she verified the repair charge of $140.00, and when she saw the recommendation for replacement on the form, she was upset by it. Respondent claims she had not been told by Ms. Riley that there was a recommendation for replacement, and she wanted to investigate the matter. She called Ms. Riley and left a message that she wanted to talk about it, and, on the recommendation of her own air conditioning repair firm, also called Alvarez/Taylor to ask for details on the recommendation for replacement. The repairman was not available, and she was unable to speak with anyone who was aware of the problem. All she was told was that the unit was old, would need constant repair, and should be replaced. When she asked to speak with the owner, he refused to speak with her. After several unsuccessful attempts to get information from Alvarez/Taylor, still on July 28, 1997, Respondent called Ms. Riley again and was told, she claims, that the situation was not so bad and the replacement recommendation was not immediate; that the Browns knew of the situation and were OK with it; and that the Browns hoped to get another year use out of the existing unit. Respondent claims she told Ms. Riley at that time she intended to remove the recommendation for replacement from the inspection report if she didn't hear back from Alvarez/Taylor, and that Ms. Riley agreed. Ms. Riley disputes this. Thereafter, she removed the recommendation for replacement from the inspection report, and on July 30, 1997, at the closing, Respondent gave the buyers an altered copy of the report of the air conditioning repairman. On this copy, the notation in the place reserved for recommendations that the unit was 13 years old and should be replaced was not present. The closing went forward and was consummated, and the Browns were given a copy of the altered inspection report. Almost a month later, on August 26, 1997, after the closing, Alvarez/Taylor furnished the Browns with a copy of the inspection report dated July 25, 1997 which reflected, in the space reserved for recommendations, that the unit should be replaced. The unit failed, and on September 3, 1997, Alvarez/Taylor replaced the unit due to its age and condition. The replacement cost the Browns $2,315.00. When the Browns started to look into the matter, and enlisted the aid of their agent, Ms. Riley, they also contacted Respondent who told them that she had altered the inspection report because she believed she had the authority to do that as a realtor. Respondent claims she was not trying to hide anything by altering the inspection report, nor was she trying to limit the Browns "or their representatives" access to the unit. She further contends she did not intend for anyone to reply on the altered inspection report. She says she believed everyone who needed to know, Ms. Riley and the Browns, were aware of the actual recommendation for replacement, and she was merely trying to correct the situation since she could not get what she considered to be appropriate information from Alvarez/Taylor.
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 finding Respondent, Margaret L. Page, guilty of concealment and breach of trust, imposing a suspension of her license as a real estate salesperson for six months under such terms and conditions as the Commission deems appropriate, and imposing an administrative fine of $500.00. DONE AND ENTERED this 29th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1999. COPIES FURNISHED: Ghunise Coaxum, Esquire Division of Real Estate Department of Business and Professional Development 400 West Robinson Street Suite N-308 Orlando, Florida 32801 David C. Levenreich, Esquire 406 South Prospect Avenue Clearwater, Florida 33756 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Respondent, George A. Wallace, was, at all times material hereto, licensed as a Class "A" air conditioning contractor by the State of Florida, having been issued license number CA CO13239. Respondent was, at all times material hereto, the qualifier for EMC Corp. On May 14, 1981, EMC Corp. entered into a written agreement with Sophie Griffin to replace the heating and air conditioning unit at Ms. Griffin's home in Fort Lauderdale, Florida. The unit was installed in May, 1981, and Ms. Griffin promptly paid the full contract price of $2,200.00. Section 301(a), South Florida Building Code, provides: It shall be unlawful . . . to install or alter any equipment for which provision is made or the installation of which is regulated by this Code without first having filed application and obtained a permit therefore from the Building Official. A permit shall be deemed issued when signed by the Building Official and impressed with the seal of the governmental agency issuing said permit. Section 301.1(1), South Florida Building Code, provides: Permits, to be issued by the Building Official, shall be required for the following operations: * * * The installation, alteration, or repair of any air conditioning or refrigeration apparatus. . . . The South Florida Building Code has been adopted by Broward County. EMC Corp. installed the new heating and air conditioning unit at Ms. Griffin's home without first having obtained a building permit from the City of Fort Lauderdale, Florida. On March 20, 1984, EMC Corp. obtained the required permit, and paid a penalty of $25.00 for having failed to secure the permit before undertaking the work. On March 26, 1984 an inspector with the City of Fort Lauderdale inspected the installation of the unit and found, contrary to the provisions of Sections 2306 and 4801.10, South Florida Building Code, that the unit had not been anchored. EMC Corp. promptly anchored the unit. Section 4505.1. South Florida Building Code, provides: PERMITS REQUIRED: It shall be unlawful to do or commence to do any electrical work on a new installation of permanent or temporary wiring, any electrical apparatus or equipment or make extensions and/or changes to existing wiring systems . . . without having first filed application and obtained an electrical permit therefore from the Electrical Inspector. APPLICATIONS: Applications for permit will be accepted from only qualified persons or firms. . . . Neither Respondent nor EMC Corp. was a qualified electrician, nor were they licensed by the state of Florida as electrical contractors. EMC, without an electrical permit, connected the wiring of the new unit with the existing electrical service. Respondent contends, and the City of Fort Lauderdale agrees, that it is an accepted practice for an air conditioning contractor to disconnect the leads from an existing air conditioning unit and reconnect them to the new unit, without the necessity of an electrical permit, if there is no difference between the units. In this case the evidence establishes that, although the replacement and existing units were 3-ton units, the amperage demands of the replacement unit were greater than the existing unit, and that the existing wiring was inadequate. However, no hazardous condition was created by EMC Corp. reconnecting the leads from the existing unit to the replacement unit. Apart from the foregoing discrepancies, EMC Corp.'s installation of Ms. Griffin's new unit met all standards established by the South Florida Building Code. Further, EMC Corp. has faithfully fulfilled all warranty and service work it contracted to perform.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is the State agency charged with regulating the practice of contracting. During times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a certified air conditioning contractor having been issued licensed number CA C022410. Respondent has been so licensed since May 1982. During December, 1982, Petitioner submitted a change of status application requesting that his license be changed to qualify for All County Air Conditioning (All County) in Fort Lauderdale, Florida. That change of status application was approved by Petitioner and Respondent has remained the qualifier for All County continuously and his license has been renewed as such and is active for the period 1987-1989 (Petitioner's Composite Exhibit 4). On September 4, 1985, Respondent through the entity All County, entered into a contract with Ernest D'Esposito to "furnish and install 1 new Whirlpool 2 Ton condensing unit, with new slab, hook-up to existing pipes and electric". The agreed upon price to complete the work was $950.00 with a five year guarantee on the compressor and a one year guarantee on parts and labor. (Petitioner's Exhibit 1). Respondent commenced the work as agreed and completed the work as scheduled. Respondent did not obtain a permit for said work from the local building department nor was a permit posted on the job site when Respondent commenced work on the project. While the work was in progress, Respondent did not obtain any inspections for the work from the local building department. A record search of the Pembroke Pines Building and Zoning Department revealed that Respondent did not obtain a permit to install the air conditioning unit at D'Esposito's residence. (Testimony of Marie Bogart, records custodian, Building and Zoning Department, City of Pembroke Pines). Rene Pena, chief mechanical inspector for the City of Pembroke Pines, is the person who checks the installation of all air conditioning work in the City of Pembroke Pines. Mr. Pena did not perform any inspections on D'Esposito's job nor was he requested to perform any inspections by Respondent. Respondent testified at the hearing and admits that no permit was obtained for D'Esposito's job. However, Respondent offered his opinion that the code did not require a permit and that his failure to obtain one was not a violation of the South Florida Building Code. Finally, Respondent offered that to the extent that there was a technical violation of the law, it was not a willful violation and that imposition of a fine would not be appropriate in this instance as his firm "tries to stay within the confines of the South Florida Building Code". Respondent acknowledged that he is the person responsible for ensuring that permits are obtained when required for completion of projects.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner, Construction Industry Licensing Board, enter a Final Order imposing an administrative fine against Respondent in the amount of five hundred dollars ($500.00), the payment of which shall be made to Petitioner within a time frame deemed appropriate by Petitioner. Respondent's license as a certified air conditioning contractor be placed on probation for a period of thirty (30) days. RECOMMENDED this 28th day of January, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael B. Falls 4611 Southwest 30th Way Fort Lauderdale, Florida 33312 Fred Seely, Executive Director Department of Professional Regulation, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neill, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent Charlie S. Hiers is registered as a Class B air conditioning contractor and qualifier for Hiers Air Conditioning and Refrigeration, Orlando, Florida. As of July 1, 1979, his license became delinquent. (Petitioner's Exhibit 1) In December, 1981, Myrtle D. Harris, who resided at 7505 Ranchero Street, Orlando, engaged the services of Respondent to repair the air conditioning unit at her home. He had performed satisfactory air conditioning work for her on two prior occasions in 1979 and 1980. She had originally contacted him through an ad in the telephone directory under the name "Temp Control Service." On each occasion she had given him a check payable to Temp Control Services which was later endorsed in that name by Respondent. (Testimony of Harris, Petitioner's Exhibits 2-3) Respondent advised Mrs. Harris on December 2, 1981, that the compressor of her air conditioning unit needed to be replaced with a new compressor. She thereupon gave him a check in the amount of $546.00 and he provided her with a bill marked paid in that amount. Her chock, dated December 2, 1981, was made payable to Charlie Hiers, and his bill of the same date merely had his handwritten name at the top. Mrs. Harris later added the words "Temp Control" in the payee portion of the check after it had been endorsed by Respondent and returned after payment. (Testimony of Harris, Petitioner's Exhibits 4-5) Respondent proceeded to remove the old compressor and later came by Mrs. Harris' house and told her that he had had to order a replacement part. However, he never came back to her home or performed the work for which he had been paid. Mrs. Harris attempted to reach Respondent by leaving her telephone number at his answering service but received no reply. Later, sometime in January, Respondent telephoned her and stated that he had the compressor on his truck and would install it on a specified date. However, he never fulfilled his promise. Mrs. Harris attempted to reach him on subsequent occasions by telephone, but was unable to contact him. On February 1, 1982, Mrs. Harris had her nephew write a letter to Respondent requesting that he either perform the work or return the payment of $546.00. Several months later, after not having heard from the Respondent, Mrs. Harris purchased a new air-conditioner. Respondent has taken no action to perform his agreement or to return the amount which he was paid. (Testimony of Harris)
The Issue Whether, as alleged by Petitioners in their Petition for Relief, Respondents have committed, and are continuing to commit, a discriminatory housing practice in violation of the provisions of Florida's Fair Housing Act by denying Petitioners approval "to install a 22,500 BTU air conditioner unit in the wall of their [Fairmont House] apartment." If so, what affirmative relief should Petitioners be provided.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:1 Petitioner Larry Tresize and his 91 year-old wife, Edith Tresize, who suffers from osteoporosis and a heart condition and is unable to perform normal activities of daily living without assistance, have resided in Apartment 50 of Fairmont House, a residential cooperative located in North Miami, Florida, since 1982. In January of 1991, the Tresizes sold their interest in the apartment to Werner Bischoff, but continued to occupy the apartment inasmuch as they had "reserved[d] unto themselves a life estate in and to the aforementioned real property with the sole right of possession during the life of the grantor EDITH TRESIZE only, with the proviso that [they] w[ould] pay all maintenance, taxes and assessments and utilities for the subject apartment." Fairmont House, Inc. (Corporation) is a non-profit corporation responsible for the operation of the Fairmont House cooperative. The purpose of the Corporation is stated in Article II.A. of its Articles of Incorporation as follows: The general nature of the object of the Corporation is to provide for and promote the general welfare, comfort, safety, and mutual friendliness between its members, to provide the facilities necessary to promote such purposes and to maintain, manage and keep in good repair the roof, outer walls of the building, all common ways, and areas within and without the building, common rooms, parking areas, grounds (meaning all grass sod, shrubbery, and general landscaping), sea walls, swimming pool and pool area, fences, common electrical equipment and fixtures situated within the common areas of the building and on the grounds for the use and enjoyment of the members of the corporation. . . . In accordance with the provisions of Article III.A. of the Corporation's Articles of Incorporation, "[a]ny person, or persons, individual or corporate, are qualified to become a member of this corporation upon securing by purchase, devise, gift, or assignment, any leasehold interest in the [Fairmont House apartments]," provided they are deemed "acceptable" for membership by the Corporation's membership committee. Pursuant to Article VI.A. of the Corporation's Articles of Incorporation, the "affairs of the [C]orporation [are] managed by a nine (9) member board of governors." The Corporation has adopted Rules and Regulations governing member conduct and activities. Item 5.c. of the Corporation's Rules and Regulations provides that "[m]embers or non-members shall make no alterations to said exterior premises without the consent of the Board of Governors." The apartments in Fairmont House do not have central air conditioning. They are cooled by room air conditioners. There are both window and "through-the-wall" units. The "through-the-wall" units protrude through openings that were a part of the original design of the building. Subsequent to the building's construction, no additional openings for "through-the- wall" units have been made. When the Tresizes moved into their Fairmont House apartment, there was a "through-the-wall" air conditioning unit in one of the apartment's two bedrooms. The Tresizes subsequently removed the unit and closed the opening in the wall through which the unit had protruded. The Tresizes now have three window air conditioning units in their apartment (including one in the bedroom which previously had a "through-the-wall" unit). In or about April of 1996, the Tresizes contacted their local Sears store to inquire about replacing the window air conditioning unit in the living room of their apartment. Sears sent a "contractor" to the Tresizes' apartment to discuss the matter further with the Tresizes. The Sears "contractor" told the Tresizes that, to comfortably cool their living room, they would need a 22,500 BTU air conditioner. He further advised them that such an air conditioner was too large to install in the living room window and that it would have to be installed, instead, through the wall. The Tresizes authorized the "contractor" to install such a "through-the-wall" unit in their living room. After a building permit from the City of North Miami was obtained, the "contractor" returned to Fairmont House to perform the work necessary to install the unit (Project). The "contractor" was with Larry Tresize on the walkway outside the Tresizes' apartment about to drill a hole in the exterior wall outside the Tresizes' living room, when he was approached by three members of the Corporation's Board of Governors, who directed that he not proceed with the Project unless and until the necessary approval was formally obtained from the Corporation's Board of Governors. The "contractor" gathered his tools and left without performing any more work on the Project. By letter dated April 24, 1996, the Tresizes requested the Corporation's Board of Governors to "grant [them] permission to install a larger air condition[er] in the wall of [their] apartment." The Board of Governors responded by informing the Tresizes that it would not consider their request absent proof that Werner Bischoff approved of the Project. The Tresizes thereafter asked Mr. Bischoff if he would consent to the installation of a "through-the-wall" air conditioning unit in the living room of the Tresizes' apartment. Mr. Bischoff refused to give such consent. The Project never received the approval of the Board of Governors. One member of the Board of Governors, Sherwin Kresshauer, personally attempted to assist the Tresizes in finding an adequate replacement for the window air conditioning unit in the their living room. Mr. Kresshauer measured the space in the window occupied by the air conditioning unit that needed to be replaced (it measured 19 inches by 27 inches) and made arrangements for an air conditioning specialist to visit the Tresizes' apartment and to evaluate the apartment's air conditioning needs and how those needs could be met. Mr. Kresshauer was present when the air conditioning specialist visited the Tresizes' apartment. The air conditioning specialist told the Tresizes that either an 18,000 or 24,000 BTU Goodman air conditioning unit could be installed in the window of their living room (in the 19- inch by 27-inch space occupied by their present unit). When the air conditioning specialist told the Tresizes how much it would cost them, the Tresizes said that they did not want to pay that much.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Tresizes' discriminatory housing practice complaint and their Petition for Relief. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998.
Findings Of Fact The Respondent, Mary Anne Shiell, is a licensed real estate salesman holding license No. 0044116. The Petitioner, the Department of Professional Regulation, Board of Real Estate, is an agency of the State of Florida, having jurisdiction over licensing and the regulation of licensure status of real estate salesmen. This dispute arose out of a business transaction involving the showing by the Respondent and others of a piece of residential real property to the complaining witnesses, William G. and Geraldine Fellows (son and mother). On March 6, 1979, the Respondent, Juanda Marsh and Skip Mark were employed as real estate salesmen by Mannix, Inc. On that day Juanda Marsh, while attempting to find residential property listings, became aware of a home owned by Paul E. Phipps and his wife which was for sale. After talking to the owners of the house, Mr. and Mrs. Phipps, Ms. Marsh went back to the Mannix realty office where she spoke to the Respondent and advised the Respondent of the Phippses' home being for sale. Ms. Marsh then met the complaining witnesses, the Fellowses, and took them to meet Mr. Phipps at the home in question. This was late in the afternoon of March 6, 1979, and the electricity had been turned off in the home. Mr. Phipps was then in the process of wallpapering and painting the dwelling, which he used as rental property. After leaving the home that evening, the complainants decided to offer the Phippses $37,000 for the property. The complainants and Ms. Marsh prepared the contract, which was executed that evening by the complainants. The sellers executed the contract the following day, and the transaction was closed March 15, 1979. The complainants did not take possession of the premises until sometime in April of 1979. On March 6, 1979, when the complainants first viewed the premises, the Respondent, Marsh, Mark, as well as Phipps, the seller, were present. The complainant addressed the group of people generally, asking what kind of condition the roof was in. All concerned looked toward Mr. Phipps; he nodded his head, assenting that the roof was in good condition. There was a general agreement that the house appeared to be in good condition. Neither the Respondent nor Ms. Marsh nor Skip Mark had any additional knowledge regarding the condition of the house other than that which they saw that day in the presence of the complainants. All were seeing it for the first time. The Respondent did not give any assurance to the complainants that the roof was in good condition; she relied, as did all present, on the assurance given by Mr. Phipps at the time. Immediately prior to the drafting of the contract on that evening, the complainants were advised by the Respondent that if an "as is" clause were placed in the contract it might induce the seller to accept the lower offer which the complainants had in mind, and the complainants agreed. Accordingly, Ms. Marsh inserted in the contract the "as is" clause on the face of the contract, meaning that the purchasers, the Fellowses, would buy the property in the condition it was in at the time for the price they were offering and which, ultimately, the owner accepted. Prior to the closing of the transaction, the Fellowses called the Respondent by telephone to ascertain that all checks had been made pursuant to the Buyer Protection Plan and the Respondent advised that she thought everything was in good working condition, but she would attempt to inspect the premises to ascertain for sure if all equipment and appliances were working. The Respondent attempted to make an inspection of the premises a day or two before closing and there was no electricity or water turned on so that the various appliances could not be tested. She informed the complainants of this, but they said they could not afford to have the utilities turned on. The Respondent then called Mr. Phipps and explained the situation to him. She asked if he was in a position to tell the complainants what condition everything was in and he told her that so far as he knew the only thing in the house that might not function properly was the dishwasher. Mr. Phipps told the Respondent that the air conditioner functioned properly and indeed the vents were in the walls or ceiling and appeared to be in order. The Respondent looked in the oven door of the range in the kitchen and the oven element appeared to be in good condition, although it was impossible to test it because the utilities were not on. The Respondent removed the kitchen range elements and visually inspected them. Again, no electricity was available to test them after this fact had been disclosed to the complainants. Upon taking possession of the property in April, 1979, the complainants discovered certain defects consisting of: a leaky roof; duct work missing from the air conditioning system; the oven was inoperable; the range had several inoperative elements; the plumbing in the toilets leaked; the hot water heater was inoperable; and the disposal was not connected. Witness Ralph Porch inspected the air conditioning system and found that no duct work existed in the hall ceiling to connect the air conditioning system to the mechanical unit. He did not try to turn on the air conditioner. He did recall seeing the air supply grills and stated that the only way one could find out that there were no ducts in place was to climb up in the attic and look; that it was not a defect observable from the normal living areas of the house. The Respondent, in addition to inspecting the kitchen appliances, inspected but saw no evidence of a mineral deposit or other symptoms of leaks around the toilets. Mr. Phipps had represented that the hot water heater was not very old and so the Respondent had no reason to believe that the hot water heater was inoperable. She looked beneath the sink to examine the garbage disposal and did not notice any pipes or electrical wiring absent. The complainants maintained that the Respondent represented to them that the electricity had been turned on for one day and that all the appliances had been checked out and were in working order. The Hearing Officer finds this testimony not credible inasmuch as the Respondent testified that she had never made such a representation, but rather had visually inspected them to the best of her ability with no electricity available to actually test the functioning of the appliances, which testimony was corroborated by the testimony of Bernice Shackleford from the Orlando Utilities Commission, who established that the electricity was turned off March 5, 1979, the day before the property was first shown to the Fellowses and to the Respondent. Ms. Shackleford also testified that the utilities were inactive continuously until April 20, 1979, long after the closing and long after the alleged inspection of the appliances took place. The undersigned thus finds that the Respondent never represented to the Fellowses that the electricity had been turned on for a day, nor that she had thus tested the appliances and found them all in working order. The Respondent did not make any statement to the effect that the roof did or did not leak. A reasonable inspection of the residence would not disclose that the air conditioning vents or air supply grills were not connected by ducts to the mechanical portion of the air conditioning system. Subsequent to their taking possession of the house and initially complaining to the Respondent and Mannix, Inc., concerning the defects in the dwelling, the complainants filed a civil action regarding their complaints. The complainants sued the Phippses, who were the sellers; Juanda Marsh; Mannix, Inc.; the Respondent; and Electronic Realty Associates, Inc. Although the complainants denied settlement of the case, in their testimony in the instant proceeding, the civil litigation was in fact dismissed by their attorney (see Notice of Voluntary Dismissal; Respondent's Exhibit A). In that civil action, only Juanda Marsh and Skip Mark were alleged to have made false representations to the complainants. In summary, the Respondent was not shown to have had any knowledge regarding the condition of the premises which she failed to reveal to the complainants and sometime after the controversy arose, the Respondent offered, on behalf of Mannix, Inc., to purchase the property back from the complainants for what they had paid for it, but this offer was rejected.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore, RECOMMENDED that the Administrative Complaint filed herein against Mary Anne Shiell be dismissed. DONE AND ENTERED this 29th day of July, 1982, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 29th day of July, 1982. COPIES FURNISHED: Joseph Doherty, Esquire 3220 Chelsea Street Orlando, Florida 32803 Charles N. Prather, Esquire 17 South Lake Avenue, Suite 103 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
