11-000067 Department Of Business And Professional Regulation, Division Of Real Estate vs. Roger Chancey And Rental Search Status: Closed Recommended Order on Thursday, April 14, 2011.

Summary: Respondent Roger Chancey operated as a broker without a valid license, as charged in Count I; recommend $500 fine. Recommend dismissal of Count II against Respondent Rental Search, as fictitious name is not subject to discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 11 - 00 67

)

ROGER CHANCEY AND RENTAL )

SEARCH, )

)

Respondent s . )

________________________________)

RECOMMENDED ORDER

Edward T. Bauer , Administrative Law Judge of the Division

of Administrative Hearings , conducted the final hearing on

March 1, 2011 , by video teleconference a t sites in Tal lahassee

and Lauderdale Lakes , Florida.

APPEARANCES

For Petitioner: Patrick Cunningham , Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

For Respondent: Roger Chancey , pro se

Rental Search

120 East Oakland Park Boulevard , Suite 105

Wilton Manors, Florida 33334

STATEMENT OF THE ISSUE S

Whether Respondent s committed the violations alleged in the

Administrative Complaint, and, if so, the penalty that should be

imposed.

PRELIMINARY STATEMENT

On January 18, 2008 , Petitioner Department of Business and

Professional Regulation, Division of Real Estate ("the

Division"), filed an Administrative Complaint aga inst

Respondents Roger Chancey and Rental Searc h. Counts I and II of

the Administrative Co mplaint allege, respectively, that

Mr. Chancey and Rental Search operated as real estate br o kers

without a valid license. Respondents timely filed a request 1 for

a formal administrative hearing , which Petitioner forwarded to

the Division of Administrative He arings on January 10, 2011 .

During final hearing, Petitioner presented the testimony of

Fred Seli and Daniel Kerrigan. Petitioner's Exhibits 1, 2, 3,

4, 5, and 7 were received in evidence. Respondents presented no

witness testimony, but introduced three exhibits, labeled 1, 2,

and 3.

The final hearing T ranscript was filed on March 18, 2011.

Petitioner subsequently filed a Proposed Recommended Order,

which the undersigned has considered. Respondents did not file

a proposed recommended order. 2

FINDINGS OF FACT

1. Petitioner is the state governmental agency charged

with the licensi ng and regulation of real estate brokers and

sales associates, pursuant to section 20.165 and chapters 120,

455, and 475, Florida Statutes.

2. At all t imes material to this cause , Mr. Chancey was

not a licensed Florida real estate agent/sales associate or

broker.

3. Prior to the alleged misconduct giving rise to this

proceeding, Mr. Chancey registered the fictitious name "Rental

Search" with the Florida Department of State and conducted

business under that name.

4. On or about December 13, 2006, Mr. Chancey placed an

advertisement in a publication known as " www. theflyer.com " 3

(hereinafter "the Flyer"), which read as follows :

EFFICIENCY - $120/WEEK

Apartment $195/week

Includes Utilities. Furnished

Unfurnished. Also Nice Houses For

Rent. 954 - 607 - 1949

(Emphasis in original).

5. In the following days , a copy of the Flyer was

delivered to Daniel Kerrigan, who noticed Mr. Chancey's

adver tisement. Mr. Kerrigan called the telephone number listed

in the advertisement and was connected to an automated m essage ,

which advised that a "Rental Search directory " could be obtained

at Hollywood Postal, a pack and ship store located in Hollywood,

Florida. The automated message further informed Mr. Kerrigan

that the Rental Search directory contained over 3,000 pr operties

that were readily available for rent.

6. On or about December 18, 2006, Mr. Kerrigan secured a

copy of the Rental Search directory for $125 at the Hollywood

Postal store. At the time of purchase, Mr. Kerrigan s igned a

pre - printed form, whic h provided in relevant part:

Under this Agreement, RENTAL SEARCH provides

our LANDLORDS TELEPHONE DIRECTORY which

contains almost every landlords' telephone

number within 20 miles of HOLLYWOD POSTAL,

Hollywood, FL . We list each landlord's

telephone number , the type of property

formerly marketed, the area and price.

Often the landlords have other rentals of

the exact same type, as formerly advertised,

available, or soon coming available. It

shall be your responsibility to call the

landlords for availabili ty. Today's

directory has about 3,000 listings . Updates

are placed online and are free to clients .

Landlords Telephone Directory is the source

that enables you to reach the landlords who

are not in today's newspaper so you can

learn of the new rentals BEFORE they are

advertised. We require a $125 deposit to

back up your word that you will:

1. SELECT A RENTAL either from our

LANDLORDS TELEPHONE DIRECTORY or from any

current newspaper or publication where the

landlord had placed an ad. (A rental from

any publication will qualify for your

refund).

2. REGISTER YOUR SELECTED RENTAL prior to

move - in with sixty days from today's date

below. (This means you have up to 60 days

to choose a place, and you must register

your rental before you move in.)

3. ST AY SIX MONTHS MINI M UM in your selected

rental complying with all rental terms.

4. PAY YOUR RENT ON TIME during the rental

period.

5. GIVE A 2 - WEEK NOTICE of your intent to

move out, to the landlord, and register your

intent to move out two weeks before you

move, with our office.

If you do the above, we will be pleased to

refund your $125 deposit upon move - out.

If you FAIL to do the above your $125 will

not be returned.

(Emphasis added).

7. Upon contacting various landlor ds in the directory a nd

learning th at no properties were available, Mr. Kerrigan

unsuccessfully attempted to obtain a refund of his $125 payment.

8 . The undersigned finds, as a matter o f ultimate fact,

that Mr. Chancey acted as a real estate broker without a valid

licens e, contrary to section 475.42(1)(a), Florida Statutes, and

is therefore subject to discipline pursuant to section 455.228,

Florida Statutes.

CONCLUSIONS OF LAW

A. Jurisdiction

9 . The Division of Administrative Hearings has

jurisdiction over the parti es and subject matter of this cause,

pursuant to section 120.57(1), Florida Statutes .

B. Burden of Proof

10 . This is a disciplinary proceeding against Respondent's

licen se. Accordingly, Petitioner must prove the allegations in

the Administrative Com plaint by clear and convincing evidence.

Dep't of Banking & Fin., Div. of Sec s . & Investor Protect. v.

Osborne Sterne, Inc. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 , 294 (Fla. 1987).

11 . Clear and convincing evidence:

requ ires that the evidence must be found 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 pro duces 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 Davey , 645 So. 2d 398, 404 (Fla. 1994 )( quoting Slomowitz

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

C. Count I

12 . In Count One of the Administrative Complaint,

Pe titioner alleges that Mr. Chancey operated as a broker without

a valid license, contrary to section 475.42(1)(a), and is

therefore subject to discipline.

13 . Section 475.01(1 )(a), Florida Statutes, defines a

"broker" as:

[A] person who, for another, and for a

compensation or valuable consideration

directly or indirectly paid or promised,

expressly or impliedly, or with an intent to

collect or receive a compensation or

valuabl e consideration therefor, appraises,

auctions, sells, exchanges, buys, rents, or

offers, attempts or agrees to appraise,

auction, or negotiate the sale, exchange,

purchase, or rental of business enterprises

or business opportunities or any real

property or any interest in or concerning

the same, including mineral rights or

leases, or who advertises or holds out to

the public by any oral or printed

solicitation or representation that she or

he is engaged in the business of appraising,

auctioning, buying, sel ling, exchanging,

leasing, or renting business enterprises or

business opportunities or real property of

others or interests therein, including

mineral rights, or who takes any part in the

procuring of sellers, purchasers, lessors,

or lessees of business e nterprises or

business opportunities or the real property

of another, or leases, or interest therein,

including mineral rights, or who directs or

assists in the procuring of prospects or in

the negotiation or closing of any

transaction which does, or is ca lculated to,

result in a sale, exchange, or leasing

thereof, and who receives, expects, or is

promised any compensation or valuable

consideration, directly or indirectly

therefor; and all persons who advertise

rental property information or lists . A

broker renders a professional service and is

a professional within the meaning of s.

95.11 (4)( a) . . . . The term " brok e r" also

includes any person who is a general

partner, officer, or director of a

partnership or corporation wh ich acts as a

broker. The term "broker" also includes any

person or entity who undertakes to list or

sell one or more timeshare periods per year

i n one or more timeshare plans on behalf of

any number of persons, except as provided in

ss. 475.011 and 721.20 .

(Emphasis added).

14 . Mr. Chancey's advertisement in the Flyer ÏÏ that

referenced "houses for rent" and includ ed price quotes for an

apartment and an efficiency ÏÏ plainly falls within the ambit of

section 475.01(1)(a), which provides that a broker includes "all

persons who advertise rental property information or lists."

15 . Although Mr. Chancey has suggested in his pl eadings

that he is entitled to market properties that belong to him , the

evidence clearly and convincingly demonstrates that the

advertisement in the Flyer (which included the phone number to a

recorded message that informed callers how to purchase t he

Rental Search directory) related to properties owned by other

landlords. Accordingly, the statutory exemption afforded to

property owners is inapplicable. See § 475.011(2), Fla. Stat.

(providing an exemption to "any individual, corporation,

partnershi p, trust, joint venture, or other entity which sells,

exchanges, or leases its own real property"); see also Dep't of

Bus. & Prof'l Reg. v. Winter , Case No. 03 - 4208, 2004 Fla. Div.

Adm. Hear. LEXIS 1 741 (Fla. DOAH Apr. 30, 2004)("A ccording to

Subsection 47 5.011(2) . . . an individual who is not a licensed

real estate broker or salesperson may sell prop erty, if he owns

that property. However, that exception does not apply in this

case because the clear and convincing evidence established that

Respondent did not own the property .")

16 . As the evidence demonstrates that Mr. Chancey acted as

a broker, he is in violation of section 4 75.42(1)(a), which

provides that it is unlawful to " operate as a broker or sales

associate without being the holder of a valid and current active

license." Therefore, Mr. Chancey is guilty of Count I and is

subject to discipline pursuant to s ection 455.228(1) .

D. Count II

17 . In Count II of the Administrative Complaint,

Petitioner alleges ÏÏ based upon the same mi sconduct add ressed in

Count I ÏÏ that Respondent Rental Search is guilty of operating as

a broker without a license.

18 . Petitioner fails to recognize, however, that Rental

Search is not a distinct business entity, but mere ly a

fictitious name Mr. Chancey utilized to conduct business and

registered with the Florida Department of State . See §

865.09(2)(a), Fla. Stat. ( defining "fictitious name" as any name

under which a person transacts business in this state, other

than the person's legal name ); Robinson & St. John Ad v er. & Pub.

Relations v. Lane , 557 So. 2d 908 (Fla. 1st DCA 1990) (noting

that the purpose of section 865.09, which provides that it is

unlawful to use a fictitious name to conduct business unless the

name is registered with the Florida Department of State, is "to

provide notice to the public, and especially to creditors, of

the identities of persons who are doing business under

fictitious names for the purpose of protecting creditors from

fraud and deceit" ). While there is no question that

disciplinary act ion may be taken against Mr. Chancey for

misconduct he committed while using the Rental Search name (as

Petitioner has done in Count I), a fictitious name, in and of

itself, is not subject to discipline. Cf. Dep't of Bus. &

Prof'l Reg. v. Ellis d/b/a Econ omy Meats , Case No. 95 - 3493 , 1995

Fla. Div. Adm. Hear. LEXIS 4738 (Fla. DOAH Oct. 19, 1995) ("The

licensees in this case are Debra Ellis and Ricardo Ellis.

Economy Meats is a fictitious name and, as such, does not hold

the subject license") . As such, Count II should be dismissed.

E. Penalty

19 . Finally, the undersigned must determine the

appropriate penalty to impose against Mr. Chancey in connection

with Count I of the Administrative C omplaint.

20 . In its Proposed Recommended O rder, Petitioner req uests

a penalty of $5, 000 ( the maximum fine a uthorized by section

455.228) and the recovery of its investigative expenses.

21 . The undersigned declines to recommend the maximum

fine, as the demonstrated harm to the public (Mr. Kerrigan's

loss of $125) is minimal. Further, significant time has

elap sed ÏÏ over four years ÏÏ since the misconduct, which is

directly attributable to Petitioner's decision to wait nearly

three years to forward Mr. Chancey's request for formal hearing

to the Division of Administra tive Hearings. Under the

circumstances, a fine of $500 is a fair and appropriate penalty. 4

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that Petitioner, Department of Business and

Professional Regu lation, Division of Real Estate, issue a final

order, as follows:

1. F inding Respondent Roger Chancey guilty of acting as a

broker without a license, as alleged in Count I of the

Administrative Complaint, and imposing an administrative fine in

the amou nt of $500.

2. Dismissing Count II of the Administrative Complaint.

DONE A ND ENTERED this 14 th day of April, 2011 , in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWARD T. BAUER

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 14th day of April, 2011.

ENDNOTE S

1 In his Election of Rights, Mr. Chancey did not dispute the

factual allegations con tained in paragraphs 1, 2, 3, 4, 5, 6, 8,

and 9 of the Administrative Complaint.

2 Following the final hearing, Mr. Chancey filed a document

titled "Items to Consider and Suggested Resolve," which the

undersigned reviewed.

3 Notwithstanding its name, "www.theflyer.com" is available in

print form.

4 The undersigned concludes that Petitioner faile d to adduce

clear and convincing evidence in support of its request to

recover $811.80 in investigative expenses. Petitioner presented

no documentar y evidence in support of such costs, and the only

testimony concerning the issue was from Mr. Fred Seli (a

supervisor with the Division of Real Estate), whose involvement

was limited to "signing off" on the final repo rts prepared by

the Division employee w ho conducted the investigation.

COPIES FURNISHED :

Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

Roger Chancey

Rental Search

120 East Oakland Park Bou levard, Suite 105

Wilton Manors, Florida 33334

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Thomas W. O'Bryant, Jr., Director

Division o f Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801

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 must be filed with the

agency that will issue the final order in this case.