08-003688PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Marian Lemon Coaxum
 Status: Closed
Recommended Order on Wednesday, November 26, 2008.


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Summary: Petitioner proved only minor violation by Respondent. A fine of $1,000 is warranted.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF REAL ESTATE, )

21)

22Petitioner, )

24)

25vs. ) Case No. 08-3688PL

30)

31MARIAN LEMON COAXUM, )

35)

36Respondent. )

38)

39RECOMMENDED ORDER

41Pursuant to notice, a final hearing was conducted in this

51case on September 8, 2008, via teleconference at sites in

61Tallahassee and Orlando, Florida, before Administrative Law

68Judge R. Bruce McKibben of the Division of Administrative

77Hearings.

78APPEARANCES

79For Petitioner: Jason W. Holtz, Esquire

85Department of Business and

89Professional Regulation

91400 West Robinson Street, Suite 801-N

97Orlando, Florida 32801-1757

100For Respondent: Gavin D. Burgess, Esquire

106Oertel, Fernandez, Cole & Bryant, P.A.

112Post Office Box 1110

116Tallahassee, Florida 32302-1110

119STATEMENT OF THE ISSUE

123The issue in this case is whether Respondent is guilty of

134dishonest dealing by trick, scheme or device in any business

144transaction in violation of Subsection 475.25(1)(b), Florida

151Statutes (2008), 1 and if so, what penalty should be imposed.

162PRELIMINARY STATEMENT

164Petitioner, Department of Business and Professional

170Regulation, Division of Real Estate, filed an Administrative

178Complaint against Respondent, Marian Lemon Coaxum, on March 27,

1872008, alleging certain violations of Respondent's real estate

195sales associate license. Respondent filed an Election of Rights

204form requesting a formal administrative hearing to contest the

213allegations in the Administrative Complaint. The Administrative

220Complaint and request for hearing were forwarded to the Division

230of Administrative Hearings ("DOAH") on July 28, 2008, and

241assigned to the undersigned Administrative Law Judge.

248The matter was scheduled for final hearing on September 8,

2582008. On September 5, 2008, Respondent filed a Motion to

268Continue Final Hearing; Petitioner filed an objection to the

277motion. Inasmuch as no emergency was cited in the motion, it

288was denied, and the hearing went forward as scheduled.

297At final hearing, Petitioner called two witnesses: Lynn

305Murray Watson, an Investigative Specialist II with Petitioner;

313and Willie Belle Lewis, the consumer. Petitioner offered

32112 exhibits into evidence, each of which was accepted.

330Respondent called one witness: Marian Lemon Coaxum. No

338exhibits were offered into evidence by Respondent.

345At the conclusion of the final hearing, the parties advised

355that a transcript of the hearing would be ordered. The

365Transcript of the hearing was filed on October 27, 2008. The

376parties were given ten days from the date the Transcript was

387filed at DOAH to submit proposed findings of fact and

397conclusions of law. Each party timely submitted a Proposed

406Recommended Order and each were considered in the preparation of

416this Recommended Order.

419FINDINGS OF FACT

4221. Petitioner is the state agency responsible for issuing

431real estate sales associate licenses and monitoring compliance

439with all statutes, rules, and regulations governing such

447licenses.

4482. Respondent was at all times relevant to this proceeding

458a licensed real estate sales associate in the State of Florida

469and held License No. 3115665.

4743. In March 2006, Respondent was introduced to Willie

483Belle Lewis (Lewis) by a mutual acquaintance. Lewis was

492interested in selling her house, and Respondent agreed to work

502for Lewis in that regard. On March 13, 2006, Lewis and

513Respondent entered into an Exclusive Right of Sale Listing

522Agreement (the "Agreement"). Under the Agreement, Respondent

530was to act as Lewis' sales agent for sale of the house.

542Pursuant to paragraph 7 of the Agreement, Respondent was to

552receive a commission of six percent of the purchase price.

562Respondent initially requested a seven percent commission which

570was the ordinary and customary amount at that time, but agreed

581to six percent in deference to Lewis' request (and due to the

593fact that Lewis had recently lost her grandmother and Respondent

603empathized with her, having just lost her mother).

6114. In one version of the Agreement admitted into evidence,

621there is a notation that any cooperating real estate agent

631(presumably a buyer's agent) would receive a commission equal to

641three percent of the purchase price, i.e., one-half of

650Respondent's six percent commission. Another version of the

658Agreement admitted into evidence did not address sharing the

667commission with a cooperating agent.

6725. At some point in time (which was not clearly defined

683during testimony at final hearing) Lewis and Respondent

691re-negotiated the amount of Respondent's commission. 2 Lewis

699maintains that the re-negotiated commission was three percent;

707Respondent says the re-negotiated commission was four percent.

715Respondent's testimony was more credible on this point. The

724amount of the new commission was not reduced to writing or

735indicated on either version of the Agreement. There is no

745indication, for example, what Respondent's commission would have

753been if a cooperating agent had been involved. It is highly

764unlikely that Respondent or any other agent would agree to a two

776percent commission, i.e., one-half of four percent (or 1.5

785percent, one-half of three percent).

7906. Once the Agreement was signed, Respondent immediately

798began efforts to sell the Lewis house. Respondent invited Lewis

808to her (Respondent's) house and offered Lewis plants and flowers

818from Respondent's yard. Respondent and Lewis dug up various

827plants and transferred them to Lewis' yard to generate some

"837curb appeal," i.e., to dress it up for potential buyers.

8477. Within days, a potential buyer was found. A Contract

857for Sale and Purchase (the "Contract") was entered into between

868Lewis and Mrs. Bibi Khan. Respondent was listed as the seller's

879agent; no agent was indicated for the buyer. In fact,

889Respondent agreed to act as buyer's agent as well, performing

899services as both an agent and a broker.

9078. Again, there were two versions of the sales Contract

917admitted into evidence. On one version, Respondent's signature

925included only her first name; on the other it included her first

937and last name.

9409. On one version of the Contract, there appears to be

"951white-out" on Respondent's signature line. Contained and

958legible under the whited-out portion of the signature is the

968phrase "3%." Respondent admits she whited out the three percent

978figure, but that it was done after the closing occurred. The

989three percent figure appearing at that place in the Contract is

1000confusing. It only makes sense if that was meant to represent

1011Respondent's portion of a six percent commission split between a

1021buyer's agent and a seller's agent.

102710. Respondent explained that she whited out the figure

1036because it was not written in both places it was supposed to be.

1049Rather than going through the process of re-doing the entire

1059Contract and re-distributing it to all pertinent parties, she

1068whited it out in one place. The explanation is plausible.

1078However, it seems an unnecessary action inasmuch as the closing

1088had already occurred.

109111. When the parties arrived at closing on April 17, 2006,

1102the closing documents--including the HUD Settlement Statement--

1109indicated a six percent commission for Respondent (as originally

1118stated on the Agreement). Lewis vehemently objected to the

1127commission, saying that it should be three percent as verbally

1137agreed to by her and Respondent. 3 Respondent acquiesced at

1147closing and, in front of witnesses, said the commission should

1157be three percent. She asked that a letter be drafted by the

1169closing agent reflecting a three percent commission. In effect,

1178Respondent re-negotiated her commission at that time. She rues

1187having done so and says she was confused, but she did so

1199nonetheless.

120012. The closing was only the third closing Respondent had

1210taken part in since becoming licensed. She was not very

1220experienced with the process and seemed to be thinking she was

1231getting a four percent commission, even when three percent was

1241being discussed. 4 It is clear, however, that Respondent did

1251verbally agree to a three percent commission during the closing.

126113. The closing agent told Lewis to return on Monday and

1272she would re-calculate the commission and provide Lewis with a

1282final check in the appropriate amount. Meanwhile, Respondent

1290attempted to contact Lewis over the weekend to discuss the

1300discrepancy. Respondent wanted to remind Lewis they had agreed

1309on four percent despite what she said at the closing. All

1320attempts at communication with Lewis over the weekend were

1329futile.

133014. When Lewis returned to the closing office on the

1340following Monday, she found the check to still be in error as it

1353reflected a four percent commission instead of a three percent

1363commission. Apparently when Respondent advised the closing

1370agent about her mistake regarding the amount of the commission,

1380Respondent still maintained that the verbal agreement was for

1389four percent. This was contrary to her statements during the

1399closing and is not substantiated by any written documentation.

140815. Respondent directed the closing agent to issue a check

1418reflecting a four percent commission, instead of the six percent

1428commission reflected on the Agreement.

143316. Lewis ultimately, under protest, accepted her

1440$74,264.92 check reflecting a four percent commission to

1449Respondent. The check contained a shortage of $1,600, if a

1460three percent commission had been applied.

146617. Lewis continued to seek repayment of the $1,600 she

1477believed she was entitled to receive. Subsequently, Respondent

1485discussed the entire dispute with her sales team and decided

1495that the disputed amount ($1,600) was not worth fighting about.

1506A check was then sent to Lewis in that amount.

1516CONCLUSIONS OF LAW

151918. The Division of Administrative Hearings has

1526jurisdiction over the parties to and the subject matter of this

1537proceeding pursuant to Section 120.569 and Subsection 120.57(1),

1545Florida Statutes.

154719. The Department has authority to take this action

1556against Respondent pursuant to Subsection 475.25(1)(b), Florida

1563Statutes, which states:

1566(1) The commission may deny an

1572application for licensure, registration, or

1577permit, or renewal there; may place a

1584licensee, registrant, or permittee on

1589probation; may suspend a license,

1594registration, or permit for a period not

1601exceeding 10 years; may revoke a license,

1608registration, or permit; may impose an

1614administrative fine not to exceed $5,000 for

1622each count or separate offense; and may

1629issue a reprimand, and any or all of the

1638foregoing, if it finds that the licensee,

1645registrant, permittee, or applicant:

1649(b) Has been guilty of fraud,

1655misrepresentation, concealment, false

1658promises, false pretenses, dishonest dealing

1663by trick, scheme, or device, culpable

1669negligence, or breach of trust in any

1676business transaction in this state or any

1683other state, nation, or territory; has

1689violated a duty imposed upon her or him by

1698law or by terms of a listing contract,

1706written, oral, express, or implied, in a

1713real estate transaction; has aided,

1718assisted, or conspired with any other person

1725engaged in such misconduct and in

1731furtherance thereof; or has formed an

1737intent, design, or scheme to engage in any

1745such misconduct and committed an overt act

1752in furtherance of such intent, design, or

1759scheme. It is immaterial to the guilt of

1767the licensee that the victim or intended

1774victim of the misconduct has sustained no

1781damage or loss; that the damage or loss has

1790been settled and paid after discovery of the

1798misconduct; or that such victim or intended

1805victim was a customer or a person in

1813confidential relation with the licensee or

1819was an identified member of the general

1826public.

182720. The standard of proof in a professional licensure

1836revocation case is clear and convincing evidence. Osborne Stern

1845and Co., Inc. v. Department of Banking and Finance , 647 So. 2d

1857245, 248 (Fla. 1st DCA 1994). The burden of proof is on the

1870party asserting the affirmative of the issue; in this case,

1880Petitioner. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

189021. The evidence does not establish that Respondent

1898intentionally attempted to defraud, misrepresent, conceal, or

1905otherwise mislead Lewis. The evidence does not show that

1914Respondent engaged in dishonest dealing by trick or scheme or

1924breached the trust between her and her client.

193222. The evidence does indicate the absence of a clear

1942meeting of the minds and a good bit of confusion between the

1954parties as to what was expected. The short duration of the

1965professional relationship, infused almost immediately with a

1972level of almost familial closeness, created some discord

1980concerning the arrangement. Respondent and Lewis seemed to

"1988infer" each other's intent, rather than substantively discuss

1996and reduce the matter to writing. Further, Respondent's

2004relative inexperience contributed to a very loose contractual

2012deal.

201323. Petitioner proved by clear and convincing evidence

2021that Respondent's acquiescence to a three percent commission

2029during the closing was followed by Respondent's unilateral

2037taking of a four percent commission. (It is immaterial that the

2048additional one percent was ultimately returned to the seller.)

2057This action, while justified in Respondent's mind and possibly

2066what the parties had agreed to, was contrary to Respondent's

2076unequivocal statements at the closing.

208124. Subsection 475.25(1), Florida Statutes, allows for a

2089range of penalties including revocation or suspension of a

2098license or imposition of a fine. Revocation or suspension would

2108be too draconian under the facts of this case. A penalty would

2120be warranted, however, because of Respondent's unilateral change

2128of her commission after the closing had occurred.

2136RECOMMENDATION

2137Based on the foregoing Findings of Fact and Conclusions of

2147Law, it is

2150RECOMMENDED that a final order be entered by Petitioner,

2159Department of Business and Professional Regulation, Division of

2167Real Estate, imposing a fine of One Thousand Dollars ($1,000)

2178against Respondent, Marian Lemon Coaxum.

2183DONE AND ENTERED this 26th day of November, 2009, in

2193Tallahassee, Leon County, Florida.

2197R. BRUCE MCKIBBEN

2200Administrative Law Judge

2203Division of Administrative Hearings

2207The DeSoto Building

22101230 Apalachee Parkway

2213Tallahassee, Florida 32399-3060

2216(850) 488-9675

2218Fax Filing (850) 921-6847

2222www.doah.state.fl.us

2223Filed with the Clerk of the

2229Division of Administrative Hearings

2233this 26th day of November, 2009.

2239ENDNOTES

22401/ Unless specifically stated otherwise herein, all references

2248to Florida Statutes shall be to the 2008 version.

22572/ Lewis had suffered some personal losses which necessitated

2266additional cash. Respondent, who had suffered similar losses,

2274agreed to reduce her commission in order to accommodate Lewis'

2284needs.

22853/ Lewis seems to believe that the reference to a cooperating

2296agent's three percent commission in the Agreement is evidence

2305that Respondent agreed to only three percent, but the plain

2315language of the document does not support her belief.

23244/ A three percent commission was usual and customary when two

2335agents were involved in a sale, so Respondent was used to

2346hearing and discussing three percent when talking about

2354transactions.

2355COPIES FURNISHED :

2358Thomas W. O'Bryant, Jr., Director

2363Division of Real Estate

2367Department of Business and

2371Professional Regulation

2373400 West Robinson Street, Suite N-802

2379Orlando, Florida 32801

2382Ned Luczynski, General Counsel

2386Department of Business and

2390Professional Regulation

23921940 North Monroe Street

2396Tallahassee, Florida 32399-0792

2399Jason W. Holtz, Esquire

2403Department of Business and

2407Professional Regulation

2409400 West Robinson Street, Suite N-801

2415Orlando, Florida 32801-1757

2418Gavin D. Burgess, Esquire

2422Oertel, Fernandez, Cole & Bryant, P.A.

2428Post Office Box 1110

2432Tallahassee, Florida 32302-1110

2435NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2441All parties have the right to submit written exceptions within

245115 days from the date of this Recommended Order. Any exceptions

2462to this Recommended Order should be filed with the agency that

2473will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/06/2009
Proceedings: Final Order filed.
PDF:
Date: 02/25/2009
Proceedings: Agency Final Order
PDF:
Date: 12/01/2008
Proceedings: Transmittal letter from Claudia Llado forwarding the Department`s Exhibit 4, to the agency.
PDF:
Date: 11/26/2008
Proceedings: Recommended Order
PDF:
Date: 11/26/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/26/2008
Proceedings: Recommended Order (hearing held September 8, 2008). CASE CLOSED.
PDF:
Date: 11/21/2008
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 11/21/2008
Proceedings: Proposed Recommended Order filed.
PDF:
Date: 10/30/2008
Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by November 21, 2008).
PDF:
Date: 10/29/2008
Proceedings: Respondent`s Motion for Extension of Time to File Proposed Recommended Order filed.
Date: 10/27/2008
Proceedings: Transcript filed.
PDF:
Date: 09/11/2008
Proceedings: Letter to Judge McKibben from J. Holtz enclosing Exhibits 4 & 10 (exhibits not available for viewing) filed.
Date: 09/08/2008
Proceedings: CASE STATUS: Hearing Held.
Date: 09/08/2008
Proceedings: Petitioner`s Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 09/08/2008
Proceedings: Respondent`s Unilateral Response to Prehearing Order filed.
PDF:
Date: 09/05/2008
Proceedings: Order Denying Continuance of Final Hearing.
PDF:
Date: 09/05/2008
Proceedings: Petitioner`s Opposition to Respondent`s Motion to Continue Final Hearing filed.
PDF:
Date: 09/05/2008
Proceedings: Motion to Continue Final Hearing filed.
PDF:
Date: 09/05/2008
Proceedings: Notice of Appearance (filed by T. Atkinson).
PDF:
Date: 08/29/2008
Proceedings: Unilateral Response to Prehearing Order filed.
PDF:
Date: 08/28/2008
Proceedings: Notice of Transfer.
PDF:
Date: 08/14/2008
Proceedings: Notice of Appearance and Substitute of Counsel filed.
PDF:
Date: 08/07/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/07/2008
Proceedings: Notice of Hearing by Video Teleconference (hearing set for September 8, 2008; 9:00 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 08/04/2008
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 07/28/2008
Proceedings: Initial Order.
PDF:
Date: 07/28/2008
Proceedings: Administrative Complaint filed.
PDF:
Date: 07/28/2008
Proceedings: Election of Rights filed.
PDF:
Date: 07/28/2008
Proceedings: Agency referral filed.

Case Information

Judge:
R. BRUCE MCKIBBEN
Date Filed:
07/28/2008
Date Assignment:
08/28/2008
Last Docket Entry:
03/06/2009
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
Suffix:
PL
 

Counsels

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Related Florida Statute(s) (3):