REAL ESTATE AGENTS WRONGFULLY DISCIPLINED, JUDGES FIND

REAL ESTATE AGENTS WRONGFULLY DISCIPLINED, JUDGES FIND

The Division of Real Estate of Florida’s Department of Business and Professional Regulation received more than 5,000 complaints during its 2003 - 2004 fiscal year, the time period it mostly recently disclosed this information. After reviewing each complaint, the Division submits to the Florida Real Estate Commission, also known as FREC, those cases for which it determines possess “probable cause” that a legally substantial violation has occurred. A real estate agent involved in a matter in which FREC finds the existence of probable cause is entitled to a trial, although it is officially referred to as a hearing. Since there’s a prosecutor who is an attorney employed by the Department of Business and Professional Regulation, most real estate agents wisely hire attorneys of their own to provide them with legal counsel to prepare for and provide representation during these hearings. There’s no jury. Instead, the decision as to whether wrong doing did or did occur is decided by a “hearing officer” who serves in the dual role as judge and jury. For a real estate agent accused of wrong doing, the consequences can be severe. In the most recently reported fiscal year, FREC issued over 500 “dispositions” of discipline, resulting in fines, probationary periods, the voluntary surrendering of real estate licenses or the revocations of licenses. Needless to say, these hearings are stressful and frightening. Not only is the hearing itself emotionally taxing, so are the weeks or months after the hearing while the hearing officer drafts a written decision regarding whether the agent did nor did not commit any wrongdoing. For those cases in which the hearing officer rules that agents did not violate any laws or rules, one would think that this anxiety would quickly disappear. That often is not the case. Many real estate agents, surprisingly, learn that FREC sometimes decides the hearing officer’s ruling is, to put it simply, “wrong.” To lawfully determine that a ruling by a hearing officer wrongfully ruled in favor of an agent who had been accused of wrong doing, FREC is legally obligated to issue very detailed explanations as to why hearing officers’ decisions run afoul of “competent substantial evidence” or that the proceedings didn’t comply with the “essential requirements of law.” Too often, FREC fails to adhere to the law when overruling the decisions of the hearing officers. Fortunately, real estate agents are permitted to sue when FREC disregards the favorable rulings of hearing. A.C. Kibler and Beatrix Meyer-Burghagen found themselves in this position when FREC rejected a hearing officer’s recommendation that there be a full dismissal of charges that the two agents made false statements when soliciting and obtaining money from a real estate purchaser. FREC ordered a ninety day suspension of both agent’s licenses, despite the agents’ victory at the hearing. H. Ernest Morris, Sr. found himself in the same uncomfortable position, when FREC rejected a hearing officer’s decision that while his actions may have given rise to being civilly liable, the agent didn’t engage in fraud or misrepresentation and didn’t break state laws. Although lacking funds in his bank account when making a ,500 deposit on a tract of land, the hearing officer concluded that Morris had access to sufficient funds which he intended to deposit on the next business day. For unspecified reasons, Morris later stopped payment on the check and refused to make good on it. FREC issued a similar order against Vincent Bekiempis after a hearing officer determined he didn’t make intentional misrepresentations during a property sale. Still, FREC decided to revoke the agent’s license and fine him ,000. Each of these agents appealed FREC’s rulings and won in their court cases. Judges in each of these cases wrote rulings which shared common themes: FREC failed to present sufficient reasons for rejecting decisions by hearing officers that the agents were not guilty of the allegations made against them; that FREC can’t merely substitute its own findings for those of hearing officers; that the agency cannot refuse to honor findings of hearing officers’ “by merely labeling” the decisions as contrary to “conclusions of law” which they themselves would have reached. Appellate court judge Winifred J. Sharp seemed to sum it up best when writing “the commission cannot substitute its interpretation of the disputed facts for those of the hearing officer, who personally heard the evidence, and was in the position to evaluate the testimony and determine the credibility of the witnesses.” Once notified that complaints have been lodged against them, real estate agents are wise to retain legal counsel early on. Legal representation is most effective when defenses are properly constructed early in the process and are carefully preserved at every stage of the legal proceedings. LORING N. SPOLTER is a Fort Lauderdale attorney who practices in these fields: Representing Real Estate agents in matters relating to complaints of misconduct, and professional licensing, employment law (including disputes involving non-compete agreements and DUI Defense. His law office phone number is (954) 728-3494. Information contained in this article was accurate at the time of writing. This article is for general information use only and does not substitute for specifically tailored legal advice. Fort purposes of objectivity, Mrs Spolter’s articles include information only on cases litigated by lawyers other than himself.