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.
Recommended Order on Wednesday, November 26, 2008.
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.
- Date
- Proceedings
- 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 cover letter identifying the hearing record referred to the Agency.
- 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: 09/05/2008
- Proceedings: Petitioner`s Opposition to Respondent`s Motion to Continue Final Hearing 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
-
Gavin D. Burgess, Esquire
Address of Record -
Jason W Holtz, Esquire
Address of Record