10-008009PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Alexandria Martin Status: Closed Recommended Order on Wednesday, May 25, 2011.

Summary: Petitioner did not prove a violation of Section 475.25(1)(b), Florida Statutes, as alleged in the Administrative Complaint. Recommend dismissal of Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8009PL

)

ALEXANDRIA MART IN , )

)

Respondent . )

)

RECOMMENDED ORDER

On April 18, 2011 , a duly - noticed hea ring was held by video

teleconference in Daytona Beach and Tallahassee , Florida , before

Lisa Shear er Nelson , an Administrative Law Judge assigned by the

Division of Administrative Hearings .

APPEARANCES

For Petitioner: Joseph Solla, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Ro binson Street, Suite N801

Orlando, Florida 32801

For Respondent: Robert J. Riggio, Esquire

400 South Palmetto Avenue

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue to be determined in this pr oceeding is whether

Respondent violated section 475.125(1)(b), Florida Statutes

(2008), and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On July 16, 2010, Petitioner, the Department of Business and

Professional Regulation, Division of Rea l Estate (Petitioner or

the Department), filed an Administrative Complaint charging

Respondent, Alexandria Martin (Respondent or Ms. Martin) with

violating section 475.25(1)(b). Respondent executed an Election

of Rights form disputing the allegations in t he Administrative

Complaint and requesting a section 120.57(1) hearing. On

August 19, 2010, the case was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge.

The case was originally scheduled for hearing Octo ber 14,

2010, and after multiple continuances, took place April 18, 2011.

Petitioner filed a Motion to Amend the Administrative Complaint,

which was granted. The parties also filed a Joint Prehearing

Statement, in which the parties stipulated that the fi rst six

paragraphs in the Amen ded Administrative Complaint did not

requir e additional evidence. At hearing, Petitioner presented

the testimony of Steven Pitts, Andrew Walker, Anthony Con k lin,

Robert Millward and Deborah Artzner. Petitioner's Exhibits 1 - 8

were admitted into evidence. Respondent testified on her own

behalf and presented the testimony of Natalie Klindt.

Respondent's Exhibits 1 - 4, 7, and 10 - 11 were admitted into

evidence.

The two - volume Transcript of the proceedings was filed with

the Div ision May 4, 2011. Both parties timely filed Proposed

Recommended Orders, which have been carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of real estate professionals pursuant to section

20.125 and chapters 455 and 475, Florida Statutes.

2. At all times material to the allegations in the

Administrative Complaint, Respondent was a real estate associate

licensed with All Pro Realty Co., Volusia Coun ty, Inc., d/b/a

RE/MAX All Pro Realty, a real estate corporation (All Pro).

3. Respondent's license number is 3051505.

4. Respondent's b roker at All Pro was Robert Millward.

5 . Respondent was the listing agent for a property located

at opical Ter race, Deland, Florida (the Tropical Terrace

property) .

6 . Respondent specialized in handling the sale of

foreclosure properties. The Tropical Terrace property was a

foreclosure property, and was owned by Premier Asset Services

(Premier) .

7 . Sales for ba nk - owned properties such as the Tropical

Terrace property that Respondent handled were different from most

real estate transactions. For example, offers were communicated

to Respondent, whether verbally with written follow - up, by fax or

e - mail, or by a co nventional real estate sales contract. If no

offer was currently pending for a piece of property, the data

related to the offer would be entered into a dedicated electronic

communication system, referred to as the portal, for

consideration by the seller.

8 . If the property was already under contract, the listing

agent could not communicate any further offers on the property.

It was not unusual for the potential buyer to receive no response

if this was the case.

9. If there were no pending offers on a pr operty, the

Seller, through use of the portal, would accept the offer,

provide a counter - offer, or send the offer back for a "highest

and best" offer. However, all transactions generated a generic

counter - offer form with the final terms, even if the origi nal

offer was accepted.

10 . Any counter - offer would be sent to the buyer's agent

for approval. If acceptable, the counter - offer would be

initialed, and returned for submission to Premier. The documents

required for submission were the FLA/BAR form, the counter - offer,

an escrow check and a pre - qualification letter for financing

purposes.

1 1 . Premier would not sign off on the purchase until the

complete package was submitted. Once the complete package was

reviewed, the asset manager for Premier would sig n the contract

and the entire packet would be returned to the seller's agent,

either by fax or through the portal.

1 2 . Anthony Conklin wanted to purchase the Tropical Terrace

property for investment purposes. He submitted an offer, through

his r ealt or, D ebbie Artzner, for $100,000, which was below the

listed price for the property. Neither he nor his agent received

any response to this offer.

1 3 . On March 11, 2009, Conklin signed another offer on the

property for $105,000. Ms. Artzner faxed him the for ms to sign

and he faxed them back to her to submit to Respondent . Anthony

Conklin did not sign the forms in her presence.

1 4 . There is some dispute as to whether the offer was

actually forward ed to Respondent on March 11: Ms. Artzner says

that she s en t it by email but did not confirm that Respondent had

received it. Ms. Artzner also stated that she would not have

submitted an offer if there was an existing offer on the

property. Respondent insists that there was in fact an existing

offer on March 11 an d denies receiving the Conklin offer .

1 5 . There is also no certainty that the exhibit identified

as the March 11, 2009 , offer and admitted as Petitioner's 2 is ,

in its entirety, the document that was actually signed by

Mr. Conklin on that date. For examp le, the first page of the

contract lists a price of $105,000, and has a deadline for

acceptance of March 26, 2009. Pages one, four and five of the

exhibit have no fax header on the bottom or top of the document,

while pages two and three have two or three fax headers dated

March 11, 2009 , at the bottom of the document. The signature

page, dated March 11, 2009, is page three. What remains unclear

is whether the offer forwarded to Responde nt for input in the

portal result ing in a counter - offer that was acc epted was the

offer dated March 11, 2009, for $105,000, or was yet another

offer for $108,000.

1 6 . In any event, on March 25, 2009, Premier issued a

counter - offer for $108,000 , and on March 26, 2009, the counter -

offer was accepted. On March 31, 2009, Mr. Conklin wrote an

escrow check for the purchase, and the documents necessary for

Premier's asset manager's signature were uploaded to the portal.

On April 6, 2009, the asset manager signed the contract and the

entire package, including the FLA/BAR form, w as returned for

transmission to the Buyer, via the portal. The agreed - upon

purchase price for the property was $108,000.

17 . At this point, the road to closing on the property

became problematic. While Respondent claims there would have

been no reason for her to not provide the entire package to the

buyer's broker, Ms. Artzner claims that she did not receive it,

and her testimony is credited. Multiple requests were made for a

copy of the FLA/BAR form , which were not honored. When

Ms. Artzner was unsu ccessful in getting a copy of the form, which

was needed for financing purposes, Mr. Conklin began calling

Respondent directly. Respondent did not provide the form, but

instead called Ms. Artzner's licensure into question.

(Ms. Artzner, who testified on behalf of the Department,

indicated that she has been licensed for 20 years. ) No real

basis for doubting her licensure was presented to justify such an

accusation.

18 . T his refusal to send the FLA/BAR form became a hurdle

for completing the financing. A fter several attempts by both

Mr. Conklin and Ms. Artzner, after approximately two weeks, a

telephone conference call was arranged involving Mr. Conklin,

Ms. Artzner, Respondent, and Andy Walker, who was assisting with

the processing of Mr. Conklin's loan. According to Mr. Walker,

Respondent remained unhelpful in providing documents when

requested.

1 9 . Mr. Conklin and Respondent are like oil and water.

S ome evidence was presented to indicate the lack of the FLA/BAR

form was not the only barrier to cl osing, but it certainly

contributed to the delay. While Mr. Conklin should have worked

through his realtor instead of calling Respondent directly ,

Respondent could have solved the document problem by simply

forwarding a copy of the FLA/BAR form. Instead, she took the

position that she had already provided it and did not need to do

so again. At hearing, Respondent stated, "I don't want to sound

arrogant or anything, but I really don't want to do anybody

else's paperwork." Her testimony is consistent with the claims

by others that she was uncooperative in getting the transaction

ready to close, and it is so found.

20 . On April 30, 2009, Andy Walker received a fax that

included a cover page and a copy of what purports to be the

FLA/BAR contract (Petitioner 's Exhibit 4) . The document contains

an offer price of $108,000, which while the ultimate price, is

not the price Mr. Conklin claims was on the offer that was

forwarded to Respondent. In addition, Mr. Conklin claims that

the document contains a signature that purports to be his but is

not. Mr. Conklin and the Department contend that Respondent

forwarded this copy of the contract and that she knew or should

have known that the signature on the document is not Mr.

Conklin's.

21 . The fax sheet accompanying the document is from an

establishment in Jacksonville called "The Retreat at St. Johns."

The cover sheet indicates that it is addressed to "Conklin" at

fax number 407 - 389 - 5111. However, there is no indication as to

who sent the fax, and Respondent denie s doing so.

22 . No persuasive evidence was submitted to demonstrate

that Respondent was responsible for sending the fax or that she

reviewed the signatures contained in the fax. While it is

somewhat different from other examples of Mr. Conklin's signat ure

in the documents, the differences are not so great that that they

could not be attributed to the natural variances in a person's

handwriting. Further, while the first five pages of Exhibit 4

have a fax header at the top indicating they were sent on

Ap ril 30, 2009, the page with the disputed signature and the

signature of the asset manager, Donna West, has no fax head er .

2 3 . In short, no clear and convincing evidence was

presented to demonstrate that Respondent was responsible for

sending the fax. F urther, no clear and convincing was presented

to indicate that Mr. Conklin's signature contained in

Petitioner's Exhibit 4 was forged or that Respondent had any

involvement in crafting, reviewing, or transmitting Petitioner's

Exhibit 4.

2 4 . Eventually, Mr . Conklin directed Ms. Artzner to prepare

a new FLA/BAR contract with the agreed - upon purchase price in

order to get the financing processed and approved. The

transaction eventually closed and Mr. Conklin successfully

purchased the property for the agreed - upon $108,000.

CONCLUSIONS OF LAW

25 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with s ections 120.569 and 120.57(1), Florida

Statutes.

26 . This disciplinary action b y Petitioner is a penal

proceeding in which Petitioner seeks to suspend or revoke

Respondent's license as a real estate associate. Petitioner

bears the burden of proof to demonstrate the allegations in the

Administrative Complaint by clear and convincing evidence.

Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

2 7 . As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be fo und to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a 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

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

2 8 . The Administrati ve Complaint alleges that the

Respondent's conduct violated section 475.25(1)(b), which

provides in pertinent part that the Florida Real Estate

Commission may discipline a licensee who:

(b) Has been guilty of fraud,

misrepresentation, concealment, false

p romises, 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 th e 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 such misconduct and in furtherance

thereof; or has formed an intent, design, or

scheme t o 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 damag e

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.

29 . The Administrative Complaint alleges that Respondent's

conduct was a violation of section 475.(1)(b) in the following

specific ways:

12. At all times material, Respondent failed

to deliver a copy of the Seller's signed

acceptance of the Buyer's original written

offer to pu rchase.

13. On or about April 30, 2009, in response

to repeated requests from the Buyer and the

Buyer's representative(s), Respondent

delivered to Buyer, or Buyer's

representative(s), a copy of a sales and

purchase contract for the Subject Property

which she represented to be the Seller's

executed acceptance of the Buyer's original

written offer of March 11, 2009.

* * *

15. Respondent knew or should have known

that the Buyer's signature, in the contract

identified as Exhibit 3 (i ntroduced at

hearing as Petitioner's Exhibit 4) was

fraudulent, and that the document represented

as the Seller's executed acceptance of the

Buyer's original offer was not the document

originally submitted by the Buyer.

* * *

18. As set forth above, Respondent committed

fraud, misrepresentation, concealment, false

promises, false pretenses, dishonest dealings

by trick, scheme or devise, culpable

negligence, or breach of trust in any

business transaction, in one or more of the

follo wing ways:

a. By misrepresenting that the sales

and purchase contract, identified as Exhibit

3, was the Seller's acceptance of the Buyer's

original offer.

b. Respondent knew or should have known

that the Buyer's signature in Exhibit 3 was a

forgery .

30 . Respondent can only be held accountable for those

allegations actually contained in the Administrative Complaint.

Trevisani v. Dep't of Health , 908 So. 2d 1108 (Fla. 1st DCA

2005); Lusskin v. Ag. for Health Care Admin. , 731 So. 2d 67, 69

(Fla. 4t h DCA 1999). Here, the specific basis for asserting a

violation of section 475.25(1)(b), involves the authenticity of

Petitioner's Exhibit 4, and Respondent's knowledge thereof.

However, the Department did not establish that Respondent sent

the document or ever reviewed it. Under these circumstances,

there is no clear and convincing evidence to support a violation

of section 475.25(1)(b).

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Flor ida Real Estate Commission enter a

final order dismissing the Administrative Complaint.

DONE AND ENTERED this 25 th day of May , 20 11 , in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administ rative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25 th day of May , 20 11 .

COPIES FURNISHED:

Robert J. Riggio, Esquire

Law Offices of Robert J. Riggio, P.A.

400 South Palmetto Avenue

Daytona Beach, Florida 32114 - 4922

Joseph A. Solla, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Or lando, Florida 32801 - 1757

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building - North Tower, Suite N801

Orlando, Florida 32801

Reginald Dixon, G eneral Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have t he 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.