03-000360PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Diane Thompson Status: Closed Recommended Order on Monday, May 5, 2003.

Summary: Respondent charged with violation of 475.25(1)(b), F.S., for offering in evidence circuit court proceeding, offer to purchase contract; Petitioner failed to carry burden, i.e., Petitioner had a specific duty to demand payment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case N o. 03 - 0360PL

)

DIANE THOMPSON, )

)

Respondent. )

)

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 F red 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 Divisi on 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 scheduli ng 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, Flori da, 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, Petiti oner 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 reco gnition 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 Tra nscript 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.

FI NDINGS 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 Residen tial 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 Contr act 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 procur ed 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 residentia l

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 provid ed 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 Thompso n'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 prep ared 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 Metcal fe 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 respo nse 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, ident ified 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

fo r 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 pres ent 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 Th ompson 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 c ounsel 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 m ine, 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) T he 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 st ate, 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 su ch 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 victi m 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 Re gulation, 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 Commi ssion ,

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. Osb orne 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 conta in “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 pre cise 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 allegation s 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 App eal 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. Shule r

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 inten tional , 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,

misrepresenta tion, 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 Dia ne 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 c ommission 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. Fi rst, 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. Se cond, 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 gui lty 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 affidavit 1 contains two

ambiguous and equivocal declara tions, 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 credibil ity 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 J ulie 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 undersi gned 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, F lorida 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 475.27 8, 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 violati on 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 h er 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 a nalysis 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 o nly 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 no t 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 purpo ses 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, t hus,

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. R ubaii, 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.