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.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 08-3688PL

)

MARIAN LEMON COAXUM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

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

Tallahassee and Orlando, Florida, before Administrative Law

Judge R. Bruce McKibben of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jason W. Holtz, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801-N

Orlando, Florida 32801-1757

For Respondent: Gavin D. Burgess, Esquire

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

Post Office Box 1110

Tallahassee, Florida 32302-1110

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of

dishonest dealing by trick, scheme or device in any business

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

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

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Division of Real Estate, filed an Administrative

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

2008, alleging certain violations of Respondent's real estate

sales associate license. Respondent filed an Election of Rights

form requesting a formal administrative hearing to contest the

allegations in the Administrative Complaint. The Administrative

Complaint and request for hearing were forwarded to the Division

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

assigned to the undersigned Administrative Law Judge.

The matter was scheduled for final hearing on September 8,

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

Continue Final Hearing; Petitioner filed an objection to the

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

was denied, and the hearing went forward as scheduled.

At final hearing, Petitioner called two witnesses: Lynn

Murray Watson, an Investigative Specialist II with Petitioner;

and Willie Belle Lewis, the consumer. Petitioner offered

12 exhibits into evidence, each of which was accepted.

Respondent called one witness: Marian Lemon Coaxum. No

exhibits were offered into evidence by Respondent.

At the conclusion of the final hearing, the parties advised

that a transcript of the hearing would be ordered. The

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

parties were given ten days from the date the Transcript was

filed at DOAH to submit proposed findings of fact and

conclusions of law. Each party timely submitted a Proposed

Recommended Order and each were considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for issuing

real estate sales associate licenses and monitoring compliance

with all statutes, rules, and regulations governing such

licenses.

2. Respondent was at all times relevant to this proceeding

a licensed real estate sales associate in the State of Florida

and held License No. 3115665.

3. In March 2006, Respondent was introduced to Willie

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

interested in selling her house, and Respondent agreed to work

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

Respondent entered into an Exclusive Right of Sale Listing

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

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

Pursuant to paragraph 7 of the Agreement, Respondent was to

receive a commission of six percent of the purchase price.

Respondent initially requested a seven percent commission which

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

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

fact that Lewis had recently lost her grandmother and Respondent

empathized with her, having just lost her mother).

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

there is a notation that any cooperating real estate agent

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

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

Respondent's six percent commission. Another version of the

Agreement admitted into evidence did not address sharing the

commission with a cooperating agent.

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

during testimony at final hearing) Lewis and Respondent

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

maintains that the re-negotiated commission was three percent;

Respondent says the re-negotiated commission was four percent.

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

amount of the new commission was not reduced to writing or

indicated on either version of the Agreement. There is no

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

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

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

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

percent, one-half of three percent).

6. Once the Agreement was signed, Respondent immediately

began efforts to sell the Lewis house. Respondent invited Lewis

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

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

plants and transferred them to Lewis' yard to generate some

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

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

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

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

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

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

services as both an agent and a broker.

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

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

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

and last name.

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

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

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

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

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

three percent figure appearing at that place in the Contract is

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

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

buyer's agent and a seller's agent.

10. Respondent explained that she whited out the figure

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

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

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

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

However, it seems an unnecessary action inasmuch as the closing

had already occurred.

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

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

indicated a six percent commission for Respondent (as originally

stated on the Agreement). Lewis vehemently objected to the

commission, saying that it should be three percent as verbally

agreed to by her and Respondent. 3 Respondent acquiesced at

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

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

closing agent reflecting a three percent commission. In effect,

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

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

nonetheless.

12. The closing was only the third closing Respondent had

taken part in since becoming licensed. She was not very

experienced with the process and seemed to be thinking she was

getting a four percent commission, even when three percent was

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

verbally agree to a three percent commission during the closing.

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

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

final check in the appropriate amount. Meanwhile, Respondent

attempted to contact Lewis over the weekend to discuss the

discrepancy. Respondent wanted to remind Lewis they had agreed

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

attempts at communication with Lewis over the weekend were

futile.

14. When Lewis returned to the closing office on the

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

reflected a four percent commission instead of a three percent

commission. Apparently when Respondent advised the closing

agent about her mistake regarding the amount of the commission,

Respondent still maintained that the verbal agreement was for

four percent. This was contrary to her statements during the

closing and is not substantiated by any written documentation.

15. Respondent directed the closing agent to issue a check

reflecting a four percent commission, instead of the six percent

commission reflected on the Agreement.

16. Lewis ultimately, under protest, accepted her

$74,264.92 check reflecting a four percent commission to

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

three percent commission had been applied.

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

believed she was entitled to receive. Subsequently, Respondent

discussed the entire dispute with her sales team and decided

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

A check was then sent to Lewis in that amount.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

Florida Statutes.

19. The Department has authority to take this action

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

Statutes, which states:

(1) The commission may deny an

application for licensure, registration, or

permit, or renewal there; 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 $5,000 for

each count or separate offense; and may

issue a reprimand, and any or all of the

foregoing, if it finds that the licensee,

registrant, permittee, or applicant:

(b) Has been guilty of fraud,

misrepresentation, concealment, false

promises, false pretenses, dishonest dealing

by trick, scheme, or device, culpable

negligence, or breach of trust in any

business transaction in this state or any

other state, nation, or territory; has

violated a duty imposed upon her or him by

law or by 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 such misconduct and in

furtherance thereof; or has formed an

intent, design, or scheme to engage in any

such misconduct and committed an overt act

in furtherance of such intent, design, or

scheme. It is immaterial to the guilt of

the licensee that the victim or intended

victim of the misconduct has sustained no

damage or loss; that the damage or loss has

been settled and paid after discovery of the

misconduct; or that such victim or intended

victim was a customer or a person in

confidential relation with the licensee or

was an identified member of the general

public.

20. The standard of proof in a professional licensure

revocation case is clear and convincing evidence. Osborne Stern

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

245, 248 (Fla. 1st DCA 1994). The burden of proof is on the

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

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

21. The evidence does not establish that Respondent

intentionally attempted to defraud, misrepresent, conceal, or

otherwise mislead Lewis. The evidence does not show that

Respondent engaged in dishonest dealing by trick or scheme or

breached the trust between her and her client.

22. The evidence does indicate the absence of a clear

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

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

professional relationship, infused almost immediately with a

level of almost familial closeness, created some discord

concerning the arrangement. Respondent and Lewis seemed to

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

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

relative inexperience contributed to a very loose contractual

deal.

23. Petitioner proved by clear and convincing evidence

that Respondent's acquiescence to a three percent commission

during the closing was followed by Respondent's unilateral

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

additional one percent was ultimately returned to the seller.)

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

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

unequivocal statements at the closing.

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

range of penalties including revocation or suspension of a

license or imposition of a fine. Revocation or suspension would

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

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

of her commission after the closing had occurred.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Department of Business and Professional Regulation, Division of

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

against Respondent, Marian Lemon Coaxum.

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

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of November, 2009.

ENDNOTES

1/ Unless specifically stated otherwise herein, all references

to Florida Statutes shall be to the 2008 version.

2/ Lewis had suffered some personal losses which necessitated

additional cash. Respondent, who had suffered similar losses,

agreed to reduce her commission in order to accommodate Lewis'

needs.

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

agent's three percent commission in the Agreement is evidence

that Respondent agreed to only three percent, but the plain

language of the document does not support her belief.

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

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

hearing and discussing three percent when talking about

transactions.

COPIES FURNISHED :

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-802

Orlando, Florida 32801

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jason W. Holtz, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-801

Orlando, Florida 32801-1757

Gavin D. Burgess, Esquire

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

Post Office Box 1110

Tallahassee, Florida 32302-1110

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.