STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) ANATOL ARIAN, )

)

Petitioner, )

)

vs. ) CASE NO. 76-472

)

CONSTANCE B. MASTELLONE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter after due notice, at Coral Gables, Florida on November 15 & 16, 1976, beFore the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Manuel E. Oliver, Esquire

Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida

FOR Respondent: James A. Baccus, Esquire

Attorney For Respondent Triangle Building

595 North West 91st Street Miami, Florida 33150

ISSUE PRESENTED

Whether the Certificate of Registration of the Respondent as a real estate broker should be suspended or revoked For alleged violation of Sections 475.25(1)(a), 475.25(1)(c), 475.25(1)(i), and 475.25(3), Florida Statutes, as alleged in the Administrative Complaint filed February 11, 1976.

A final hearing was scheduled to be held on June 29, 1976, but pursuant to Motion of Respondent was continued until July 6, 1976 and, pursuant to a further Motion of Respondent For continuance, the hearing was continued until November 15, 16, 1976.

A prehearing Motion of Respondent to strike Counts I, II, III, V, VII, VIII, IX & X of the Administrative Complaint was denied at the commencement of the hearing.

At the hearing, Petitioner moved to amend Count X of its Complaint to correct a typographical error as to the statutory provision alleged to have been violated. The Motion was granted and the said Count was amended to reflect an

alleged violation of Section 475.25(3), F.S. rather than Section 475.25(1), F.S. Pursuant to further Motion of Petitioner, a typographical error appearing in Count VII of the Administrative Complaint relating to the address of the property in question shown in paragraph 1 thereof was corrected to read "1558". Pursuant to further Motion of petitioner, Count Seven was also amended to include an alleged violation of Section 475.25(1)(i), F.S. No objections to any of the above amendments were made by Respondent.

FINDINGS OF FACT

1. Respondent is a registered real estate broker, Certificate No. Q056337. During the year in which the alleged statutory violations occurred, i.e., 1974, she was also registered under the trade name "Watson Real Estate". Also, effective November 4, 1974, she was additionally registered in the name of Connie B. Martin. Her place of business was listed at 17031 North Dixie Highway, North Miami Beach, Florida. (Petitioner's Exhibits 1, 2)

   
   

2. On April 16, 1974, Respondent, in the name of "Connie Martin and/or Nominees" entered into an Agreement of Sale and Deposit Receipt with Richard Infante and Susan Infante, his wife, whereby Respondent agreed to purchase real estate located at 1558 N.W. 102nd Street, Miami, Florida, For the price of

   $24,607.50. The contract provided For a $1,000.00 security deposit by the purchaser in the Form of a check payable to "Watson Real Estate Trust Account" and the Agreement recited an acknowledgement of receipt of these escrow funds by Constance B. Mastellone For Watson Real Estate. The Agreement further provided that closing of the transaction would be on June 23, 1974 and that, in the event of failure or refusal of the purchaser to comply with the obligations thereunder, without fault on the sellers' part, all monies paid under the contract could be retained by the sellers as liquidated damages. Respondent did not place the $1,000.00 deposit in the Watson Real Estate Trust Account that was maintained in the City National Bank of Miami Beach, Miami Beach, Florida.

   Instead, she wrote a letter to the Infantes on the same day that the contract was executed advising them that the money was in an interest-bearing account at Chase Federal Savings, North Miami Beach, Florida. The letter stated that she preferred to handle the matter in that manner because there was a possibility she would not be able to obtain financing and close the purchase. Although Respondent testified that Mr. Infante called and told her that he had received the letter and had expressed no objection to this disposition of the funds, no written instrument or addendum to the contract in this respect was ever executed by the parties. (Petitioner's Exhibit 14; Respondent's Exhibit 16).

   
   

3. The transaction with the Infantes did not close on the scheduled date because Respondent was unable to obtain mortgage financing. On July 1, 1974, Respondent, in the name of "Connie B. Martin, broker" as seller, entered into a deposit receipt agreement with Carrie Clark, as purchaser to sell the Infante property For the sum of $25,000.00. The deposit receipt reflected that the sum of $1,450.00 was acknowledged to be held in escrow by Watson Real Estate as a deposit on the property. There was no showing in this Agreement that Respondent did not hold title to the property at the time. The contract was contingent upon the delivery by the seller of an FHA appraisal of not less than $25,000.00. The Agreement reflected that "Watson Real Estate, Connie B. Martin, Broker" had received the aForesaid deposit. Under the same date of July 1, 1974, another deposit receipt was executed by Carrie Clark as buyer, whereby "Watson Real Estate Trust Account, Connie B. Martin", acknowledged receipt of $1,450.00 from Carrie Mae Clark on the same property as a deposit to be held in escrow by Watson Real Estate. This document showed the purchase price to be $24,607.50. It did not reflect the name of the proposed seller of the property. At the time

   she executed these documents, Clark did not know who owned the property in question. Respondent viewed Clark as her "Nominee, as referred to in the original contract with the Infantes, and had contracted with Clark on the assumption that she could deliver clear title to her when she had received the same from the Infantes. Respondent considered this transaction to be what she termed a "double closing". Her original contract with the Infantes provided that she would receive as "Watson Real Estate, Connie B. Martin, Broker", 40 percent of the real estate commission on the sale with 60 percent to be paid to the listing broker, Edwin C. Bagby. (Testimony of Respondent, Clark, Petitioner's Exhibit 8; Respondent's Exhibit 6).

   
   

4. During the next several months after June, 1974, Respondent advised Infante and his attorney Benjamin Agronow, that she was endeavoring to sell the house to Clark. Infante was desirous of selling the property and did not press to close the transaction. He hereby tacitly agreed to an extension of the time For closing. However, when the Clark deposit receipt was submitted to Agronow in early November, 1974, he advised Infante that the changed method of financing therein would result in higher costs to him. By this time Infante wanted no further dealings with the Respondent and declined to consider the offer by Clark. Thereafter, on November 12, 1974, Agronow advised the Respondent that she had breached the contract of April 16, 1974 For, failure to close the transaction, and demanded delivery of the $1,000.00 deposit under the terms of the contract. It provided that upon default of the purchaser all monies paid thereunder could be retained by the seller as liquidated damages and the contract terminated. Respondent did not pay over the deposit funds to Infante. (Testimony of Respondent, Agronow, Infante (Deposition), Respondent's Exhibit 6, Petitioner's Exhibit 14).

   
   

5. On May 25, 1974, Respondent, in the name of "Connie B. Martin and/or Nominees" as purchaser, entered into an Agreement Of Sale And Deposit Receipt with Ruth E. Higgins, as seller, to purchase property located at 1065 N.W. 127th Street, Miami, Florida, For the sum of $31,000.00. The contract provided For the payment of $1,000.00 in the Form of a check to "Watson Real Estate trust account", escrow agent, as a security deposit, and receipt was acknowledged of this amount on the same date by Constance B. Mastellone For Watson Real Estate Trust Account. The contract further provided that it was a "back-up" contract and would not become effective until the date that Higgins was notified that a previous contract with one Hyde was known to be void. Respondent was advised several months later that the Hyde transaction had failed. Neither the listing broker, Associates Real Estate, nor Higgins saw the $1,000.00 at the time the aForesaid agreement of May 25 was entered into by the parties. A letter of Respondent to Higgins on the same date as the contract was executed stated that Respondent held the deposit of $1,000.00 in her account with Chase Federal Savings, North Miami Beach, Florida, in an interest-bearing account. It further stated that Respondent did not want to lose the interest during the time spent waiting For a mortgage commitment. Respondent testified that Higgins called her on the phone and told her she had received the letter and accepted the provisions thereof. Respondent encountered difficulties in obtaining financing For the purchase due to a tight money market and there was also a title problem to be resolved. In any event, the deal did not go through and Respondent obtained a release of the deposit receipt to herself which was executed by Higgins on December 19, 1974.

   
   

6. Respondent admitted at the hearing that at no time was the $1,000.00 deposit ever placed in the Watson Real Estate trust account. (Testimony of Respondent, Higgins, Shaeffer; Petitioner's Exhibit 15; Respondent's Exhibits 8, 10, 11, 12, 13).

7. On December 10, 1974, Respondent's daughter, Pamela A. Mastellone entered into an Agreement Of Sale And Deposit Receipt as purchaser of the Higgins property For the sum of $34,000.00. This agreement provided For a security deposit in the sum of $3,000.00 in the Form of a check payable to Ruth

   E. Higgins. The check was issued by Connnie Mastellone" on December 10, 1974 and was drawn on the City National Bank of Miami Beach. The contract further provided that if it did not close by December 24, 1974, the contract would be null and void and the parties relieved of all obligations. The agreement provided For an even split of a 7.5 percent commission between Associates Realty and Watson Realty. Respondent testified that at the time she gave the check to Higgins, she asked her to hold it until a firm commitment from a mortgage company had been received. Higgins, on the other hand, testified that Respondent had asked her to hold it For two weeks. Respondent was unable to get mortgage financing For her daughter and the contract expired by its terms on December 24, 1974. On December 27, 1974, Higgins deposited the check For payment and it was returned For insufficient funds. (Testimony of Respondent, Shaeffer; Petitioner's Exhibits 16, 17, 18; Respondent's Exhibit 14).

   
   

8. On June 18, 1974, Respondent in the name of "Connie B. Martin" as purchaser entered into an Agreement Of Sale And Deposit Receipt with Rose Gilbert, represented by Jean Fielding, Attorney in fact, to purchase real estate located at 16150 N.E. 12th Avenue, North Miami Beach, Florida, For the price of

   $26,000.00. The Agreement provided that upon signing of the contract, the purchaser would place $2,00.00 in escrow with Watson Real Estate Trust Account and receipt was acknowledged of this sum by Constance B. Mastellone For Watson Real Estate. The contract provided For a 50-50 commission split between Watson Real Estate and Pete Lipinsky, listing broker. At the time the contract was executed, Lipinsky told Respondent that if she did not place the money in escrow, he would "nail her hide to the wall". Respondent testified that she instructed her daughter, Pamela Mastellone, to go to the Chase National Bank and withdraw $2,100.00 and send the same to the Watson Realty Trust Account at City National Bank of Miami Beach. She further testified that it was not until she was investigated by petitioner that she learned her daughter had neglected to follow her instructions in this regard. The contract did not close on the agreed date and thereafter, on September 20, 1974, Respondent, in the name of "Constance B. Mastellone, Broker" entered into another Agreement Of Sale And Deposit Receipt with Gilbert on the same property For a price of $29,000.00.

   Although this Agreement provided For a security deposit of $2,600.00 to be placed in the Watson Real Estate Account, the parties understood that these were the same funds deposited under the Former contract. This deal closed on October 14, 1974. (Testimony of Respondent, Fielding, Lipinsky; Petitioner's Exhibits 6, 7; Respondent's Exhibits 1, 2).

   
   

9. On May 28, 1974, Peter A. Mastellone and Respondent, in the name of "Constance B. Mastellone, Broker, and/or Nominees" was purchaser entered into an Agreement Of Sale And Deposit Receipt with Roy M. Hall and Kitty H. Hall, his wife, to purchase property located at 1517 N.W. 101st Street, Miami, Florida, For the price of $17,000.00. The contract provided For a $1,000.00 check payable to Watson Real Estate Trust Account as escrow agent as a security deposit, and receipt of the said deposit was acknowledged by Constance B. Mastellone on behalf of Watson Real Estate. The contract further specified that the property was being purchased For the purpose of resale and provided For a closing within 30 days. The contract provided that there would be no real estate commission paid on the transaction. Also, on May 28, 1974, Respondent directed letters to the Halls advising them that the $1,000.00 security deposit was in her account at Chase Federal Savings, North Miami Beach, an interest-

   bearing account, and that she did not want to place it in an escrow account where it would earn no interest. Respondent testified that the Halls orally agreed the deposit money could stay in the savings account of Respondent. This contract did not close, but on August 9, 1974, Respondent executed an FHA deposit receipt as seller whereby she agreed to sell the property to Nicholas Torek and Mary McDonnell Torek For the sum of $23,000.00. The document acknowledged the receipt of a $500.00 security deposit, which was in the Form of a check issued to Watson Real Estate by M.L. McDonnell on August 11, 1974, to be placed in the Watson Real Estate Account. Respondent was unaware at the time that McDonnell and Torek were not married. Torek had authorized McDonell to use his name on the instrument because they were planning to be married. Respondent sent them to a mortgage company to qualify For a mortgage. Several days later, she learned that they were not married and Torek came back and signed a new contract, which was also dated August 9, with the Halls at the same purchase price as his contract with Respondent. The latest agreement provided For a security deposit of $1,250.00 to be held in escrow by Watson Real Estate Trust Account and also provided For a real estate commission to Watson Real Estate of

   $3,750.00 to be paid by the Halls. An addendum to this contract was executed by Torek and Respondent, dated August 9, 1974, whereby Torek agreed that the

   $1,250.00 escrow should not be deposited in the trust account, but be given to Peter A. Mastellone For the purpose of making repairs on the property. It further provided that he would hold $850.00 toward closing costs and "prepayables". The document reflects the receipt of $2,100.00 by Peter A. Mastellone. Respondent testified that since $2,100.00 was all that was necessary to close the transaction, her husband returned $500.00 cash to Torek to reimburse McDonnell For her original deposit on the other contract. The Halls were not a party to the addendum to the contract and Torek was not aware that the Halls were the owners of the property until after the transaction was closed on October 4, 1974. Torek testified that he had not signed the second August 9 contract which had been executed by the Halls. However, Torek had agreed to close in his own name when he learned that McDonnell could not qualify For FHA financing. Torek was not concerned about the name in which the transaction was consummated but later, after disputes with McDonnell, quitclaimed his interest to her. Although McDonnell was present at the closing on October 4, the deed to the property was issued in the name of Torek only.

   McDonnell testified that Respondent had told her to sign the original contract In the name of Torek and in that way the deed would come out in her married name. McDonnell was surprised when the deed was issued only in the name of Torek. McDonnell was aware that the Halls owned the property and that Respondent was attempting to sell it in order to get out from under her own contract with the Halls. McDonnell was not aware that Torek had signed the subsequent agreement in his name only. (Testimony of Respondent, Torek, McDonnell, Petitioner's Exhibits 10, 11, 12, 13; Respondent's Exhibits 5 & 20).

   
   

   CONCLUSIONS OF LAW

   
   

10. Respondent is charged with various violations of Chapter 475, Florida Statutes, as follow:

    
    

    "475.25 Grounds For revocation or suspension.-

    1. The registration of a registrant may be suspended For a period not exceeding 2

       years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:

       1. Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, 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 him by law

          or by the 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 to engage in any such misconduct, and has committed an overt act in furtherance of such intent, design or scheme. It shall be immaterial

          to the guilt of the registrant that the victim,

          Or intended victim, of the misconduct has sustained no damage or loss or the damage or loss has

          been settled and paid, after discovery of the misconduct, or whether such victim, or intended victim, thereof, was a customer or a person in confidential relation with the registrants or

          was an identified member of the general public; or,

          (c) Failed to account or deliver to any person, including registrants under this chapter, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document, or

          thing of value, including a share of a real estate commission, or any secret or illegal profit, or any divisible share or portion thereof, which has come into his hands and which is not his property, or which he is not his property, or which he is not in law or equity entitled to retain, under the circumstances,

          and at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery; ...

          (i) Failed, if a broker, to immediately place, upon receipt, any money, fund deposit, check or draft, entrusted to him by any person dealing with him as a broker, in escrow with a title company or banking institution located and doing business

          in Florida, or, deposit said funds in a

          trust or escrow bank account maintained by him with some bank located and doing business

          in Florida, wherein said funds shall be kept until disbursement thereof is properly authorized; ...

          (3) The registration of a registrant may

          be revoked... if he shall be found guilty of a course of conduct or practices which show that he is so incompetent, negligent, dishonest or untruthful that the money, property, trans- actions and rights of investors or those with

          whom he may sustain a confidential relation, may not safely be entrusted to him.

          
          

11. As to Count One - Respondent is alleged to have violated subsection 475.23(1)(i), F.S. by failing to place the $2,600.00 security deposit relating to the Gilbert transaction in the Watson Real Estate Trust Account, as provided For in the Agreement of June 18, 1974. Respondent conceded that the deposit was not placed in escrow pursuant to the agreement of September 20, 1974, by reason of the failure of her daughter to follow instructions in this regard. There is no need, however, For a discussion of the circumstances surrounding the handling of any escrow funds in this matter. The statute concerns money entrusted to a broker "by any person dealing with him as a broker." Further, Rule 21V-14.03,

    F.A.C. which implements the statute, refers to the requirement of placing deposits in escrow in the following terms:

    
    

    21V-14.03 Real estate brokers.--

    Every registered real estate broker who shall receive from his salesman, principal, prospect, or other person interested in

    any real estate transaction as herein des- cribed, any deposit as defined above, shall immediately place the same in a solvent bank or trust company or title company having trust powers, in an escrow or trust account.

    
    

    Accordingly, it is evident that the statute and implementing rule deal with monies received from someone other than the broker. Here, the broker, and the purchaser who was required to make the deposit, were one and the same because Watson Real Estate was not a "person" or otherwise a legal entity, but merely a fictitious trade name For Respondent. ThereFore, there can be no violation of Section 475.25(1)(i) in this instance.

    
    

12. As to Count Two - This count also alleges a violation of the escrow provisions of Section 475.25(1)(i) with regard to the Higgins contract of May 25, 1974. Here again, Respondent was dealing both as purchaser and broker and failed to place the $1,000.00 deposit in a trust account. For the same reason stated in paragraph 2 above, it is concluded that she did not violate the statutory provision.

    
    

13. As to Count Three - This count alleges dishonest dealing and breach of trust in violation of subsection 475.25(1)(a) by issuing a worthless check in violation of Chapter 832.05, Florida Statutes. The check in question was issued in the amount of $3,000.00 to Ruth Higgins by Respondent on December 10, 1974, and was returned For insufficient funds after being presented For payment on December 27, 1974. The evidence establishes that the payee, Higgins, had been notified by the Respondent prior to delivery of the check that Respondent did not then have on deposit to her credit with the drawee bank sufficient funds to ensure payment, and Higgins agreed to hold the check For an undetermined period. Such an understanding takes the matter out of the purview of Section 832.05 by the express terms of that statute. Further, the check was not presented For payment until after the agreement had expired on December 24, 1974. It is thereFore concluded that Respondent did not violate subsection 475.25(i)(a), as alleged.

    
    

14. As to Count Four - Respondent is alleged to have violated Section 475.25(1)(i) by failing to place a $1,000.00 deposit in escrow in connection

    with the Hall contract of May 28, 1974, in which she and her husband, Peter A. Mastellone, were purchasers. For the same reason stated in paragraph 2 above, it is concluded that Respondent did not violate the statute, as alleged.

    
    

15. As to Count Five -

    
    

    1. Respondent is alleged to have violated subsection 475.125(1)(i) by failing to place a $500.00 deposit received from Mary L. McDonnell in the Watson Real Estate Trust

       Account. This allegation involves the contract of August 9, 1974 wherein Respondent was shown as seller and Nicholos Torek and Mary L. McDonnell "Torek" as purchasers of the Hall property. Respondent deposited the check in the Watson Real Estate operational account,

       but not in the Watson Real Estate Trust Account, as provided under the agreement. Respondent seeks to avoid responsibility For this failure by claiming that some time later, when a second contract was signed by Torek alone and an addendum to that later contract was also entered into in which Torek agreed that the deposit monies involved in both contracts would be turned over to Peter A. Mastellone, it was verbally agreed the $500.00 deposit of McDonnell would be returned to her by Torek. The addendum

       related to a contract between Torek and the Halls to which McDonnell was not a party. Also, McDonnell was not even aware of the Torek-Hall contract until some time after that transaction had closed. It is thereFore concluded that Respondent violated subsection 475.25(1)(i), as alleged in the Amended Count.

    2. Petitioner also alleges in Count V that Respondent violated Subsection 475.25(1)(a) as characterized by fraud, dishonest dealing, misrepresentation, concealment, false promises and false pretenses. Specifically, it is alleged that Respondent advised McDonnell to sign the August 9 contract as "Mary L. McDonnell Torek", then knowing that McDonnell was not married to Torek. However, the evidence establishes that

    Respondent was not aware of this fact at the time.

    
    

16. It is also alleged that Respondent represented to McDonnell that the deed to the property would be in the name of both McDonnell and Torek, but it, in fact, was executed in the name of Torek only. The evidence fails to establish that Respondent had made such a representation and even assuming that she had, if the contract which both McDonnell and Torek signed had been closed, the deed would have been in both names. It was only later that Respondent discovered that the two were not married.

    
    

17. The final allegation of dishonest dealing in this transaction is alleged to be that Respondent never inFormed the mortgage company of McDonnell's interest in the property and, without the knowledge of McDonnell, obtained a deposit receipt executed by Torek as purchaser and the Halls as sellers. This

    allegation is in reference to the second agreement of August 9th signed only by Torek. In this connection, the evidence shows that Respondent never contacted McDonnell regarding the second agreement and that the mortgage company handling the transaction had no knowledge of her interest therein. Although McDonnell attended the closing of the transaction, she was unaware of the fact that the property was not in her name until after a later eviction action was instituted by Torek. It is considered that Respondent's failure to specifically make McDonnell aware of the changed circumstances surrounding the transaction constitutes concealment of material facts which Respondent, as a broker, was under a duty to disclose to McDonnell. It is thereFore concluded that in this respect, Respondent violated subsection 475.25(1)(a).

    
    

18. As to Count Six - This count also alleges a violation of subsection 475.25(1)(a) wherein it is alleged that Respondent advised Torek to obtain a statement from his brother to the effect that the latter had given Torek

    $1,500.00 as a gift to assist him in purchasing a home, and that Torek did not contribute any monies except a nominal sum toward the purchase of the Hall property. No evidence was presented in support of this count and it should be dismissed.

    
    

19. As to Count Seven - Respondent is alleged to have violated the escrow provision of subsection 475.25(1)(i) by failing to place a $1,000.00 earnest money deposit in escrow with Watson Reall Estate Trust Account as provided in the contract of April 16, 1974 between the Infantes and Respondent. For the same reason stated in paragraph 2 above, Respondent has not violated the statute.

    
    

20. As to Count Eight - Respondent is alleged to have violated subsection 475.25(1)(c) by failing to account and deliver the $1,000.00 deposit to the Infantes with respect to the contract of sale, dated April 16, 1974, which did not close, and For which demand was made on November 12, 1974. Respondent claims that she was not obliged to return this deposit because the Infantes breached the contract by not accepting the offer of purchase made by Carrie Clark. The Infantes were under no duty to accept this offer because it varied the terms of the original agreement. The statutory provision under consideration provides that the deposit must be returned "at the time which as been agreed upon or which is required by law, or in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery." Here, the time fixed For closing the transaction, i.e., June 28, 1974, had expired, but the Infantes did not take action to rescind the contract. One having a right to so rescind normally must exercise that right promptly on discovery of the facts from which it arises or within a reasonable time thereafter. Although any unreasonable or unnecessary delay in the assertion of a right to rescind is tantamount to a ratification of the agreement and a waiver of such right, where the rescission is based upon a breach by the other party, a delay to give him an opportunity to perForm does not prevent a rescission when he fails to take advantage of the opportunity. 7 Fla. Jur, Contracts 180. Although the Infantes exercised Forbearance For a lengthy period of time, it is not considered that they waived their right to terminate the contract under the circumstances and as provided under the terms of the contract. It is thereFore concluded that Respondent violated the statutory provision, as alleged.

    
    

21. As to Count Nine - Respondent is alleged to have violated Subsection 475.25(1)(a) by agreeing to sell the Infante property to Carrie Clark, knowing that she (Respondent) did not "own title to the property." Although the Respondent signed the July 1, 1974 deposit receipt as the seller of the property and agreed to provide good and marketable title to the property, there is

    nothing in the agreement by which Respondent represented herself to hold title at that time. Unless specified by the contract, a vendor need not have good title at the time of entering into a contract to sell realty, it being sufficient that the contract is made in good faith and that the vendor has such interest in the subject matter that he can convey title at the proper time.

    Respondent planned to acquire title from the Infantes and resell to Clark. The fact that the time For closing the Infante contract had expired at the time of the Clark deposit receipt is of no significance because the Infantes had not indicated an intent to cancel their contract. Although such tactics as employed by the Respondent in this instance are not considered good practice by a broker, they do not rise to the level required to establish dishonest dealing or concealment under a statute that is penal in nature.

    
    

22. As to Count Ten - Respondent is alleged to be guilty of a course of conduct or practices which show that she is so incompetent and negligent, dishonest, or untruthful that the money, property transactions, and rights of investors with whom she may sustain a confidential relation may not be safely entrusted to her. This statutory subsection which provides For discretionary revocation of a broker's license is aimed particularly at the dishonest and unscrupulous broker who cheats, swindles or defrauds the general public in handling real estate transactions. The established violations against the Respondent, although indicating that she was prone to engage in what might be termed "sharp practice", do no equate to the improper conduct contemplated by the statute that would warrant such a drastic action as license revocation. Accordingly, it is determined that Respondent has not been shown sufficiently blameworthy to warrant application of subsection 475.25(3).

    
    

23. The final question in this matter concerns the sanction that properly should be imposed upon the Respondent For her aForesaid violations of Chapter

475. In assessing an appropriate penalty, her derelictions must be considered in the light of all the evidence presented at the hearing as to the manner in which she conducted the profession of real estate broker. When viewed in its entirety, her conduct is considered to be unsavory at best. Operating in several trade names which caused confusion in the minds of both sellers and prospective purchasers, she created undue complications in the transactions in which she acted as both a party and a broker. Her failure to make all parties aware of her true position clearly was not in keeping with the confidential relationship owed to principals and the duty of fair dealing with contractual parties who are not principals. Her handling of deposit monies was in disregard of contractual provisions and statutory requirements. The fiduciary relationship of broker to principal is one that requires complete trust and confidence. When a broker so conducts herself as to impair confidence in such a relationship, it is detrimental to the public in general and to the real estate profession. Consequently, it is considered that suspension of Respondent's registration is warranted For a period of six months.

RECOMMENDATION

That the registration of Constance B. Mastellone as a real estate broker be suspended For a period of six months For violation of subsections 475.25(1)(a), 475.25(1)(c), and 475.25 (1)(i), Florida Statutes.

DONE and ENTERED this 3rd day of January, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Manuel E. Oliver, Esquire Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida

James, A. Baccus, Esquire Attorney For Respondent Triangle Building

595 N.W. 91st Street Miami, Florida 33150

================================================================= AGENCY FINAL ORDER

================================================================= FLORIDA REAL ESTATE COMMISSION

ANATOL ARIAN,

Petitioner,

PROGRESS DOCKET NO. 2788

vs. DADE COUNTY

DOAH NO. 76-472

CONSTANCE B. MASTELLONE,

Respondent.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Winter Park, Florida on February 16, 1977,

Present: John R. Wood, Chairman

Maggie S. Lassetter, Vice Chairman Levie D. Smith, Jr., Member

Appearances: Manuel E. Oliver, Attorney for Petitioner James A. Baccus, Attorney for Respondent

This matter came on for Final Order upon the Hearing Officer's Recommended Order and the Petitioner's and the Respondent's Exceptions thereto, together with the record and oral argument or counsel for Petitioner and for Respondent, and the Commission having fully reviewed the record in its entirety, the Findings of Fact and Conclusions of Law in the Recommended Order, and the Commission being otherwise fully advised in the premises, finds:

1.

According to the records of the Commission, the Respondent is presently registered with the Commission as a real estate broker holding an active certificate as such and her last registered address with the Commission is t/a Century 1 Real Estate, 17031 W. Dixie Highway, North Miami Beach, Florida, 31160.

2.

That the Respondent's Exceptions to the Hearing Officer's Findings of Fact and Conclusions of Law as to Count V, as amended, and Count VIII of the Administrative Complaint are not well taken and should be denied.

3.

That the Respondent's Exceptions to the Hearing Officer's recommended penalty are not wall taken and should be denied.

4.

That the Hearing Officer's Findings of Facts and Conclusions of Law as they relate to Count V, as amended, and Count VIII, of the Administrative Complaint, finding the Respondent guilty of the offenses charged in those counts, are supported by competent, substantial evidence in the record and should be adopted as such by the Commission.

5.

That the Hearing Officer's finding that no evidence was presented to support the charges against this Respondent in Count VI of the Administrative Complaint, and the Hearing Officer's conclusion that said Count VI should be dismissed are proper and his findings, conclusions and recommendation as to said Count VI should be adopted as those of the Commission.

6.

That the Petitioner's Exceptions to the Hearing Officer's Findings of Fact, as contained in paragraphs 2, 5 and 8 of the Hearing Officer's Recommended Order are not well taken and should be denied.

7.

That the Petitioner's Exceptions to the Hearing Officer's Conclusions of Law as they relate to Counts I, II, III, IV, VII, IX and X of the Administrative Complaint are well taken and should be sustained.

8.

That the Hearing Officer's recommended penalty that the Respondent be suspended for a period of 6 months is unduly mild and totally inadequate considering the nature and gravity of the offenses involved and is to be rejected. In this regard, the Petitioner's Exceptions to the Hearing Officer's recommended penalty are well taken and should be sustained. That the Commission further finds that the Respondent was guilty of a course of conduct or practices which show that the Respondent is so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors or those with whom she may sustain a confidential relation, may not safely be entrusted to her.

IT IS THEREUPON ORDERED:

1. That the Respondent's Exceptions to the Hearing Officer's Findings of Fact, Conclusions of Law and recommended penalty as they all refer to Count V, as amended, and Count VIII of the Administrative Complaint be, and the same are hereby, overruled.

   
   

2. That the Hearing Officer's Findings of Fact and Conclusions of Law as they relate to Count V, as amended, and to Count VIII of the Administrative Complaint be, and the same are hereby, adopted as the Findings of Fact and Conclusions of Law of the Commission as to those Counts.

   
   

3. That the Hearing Officer's recommendation that the charges in Count VI of the Administrative Complaint be dismissed be, and the same is hereby, adopted as the Order of the Commission.

   
   

4. That the Petitioner's Exceptions to paragraphs 2, 5 and 8 of the Hearing Officer's Findings of Fact in his Recommended Order be, and the same are hereby, overruled.

   
   

5. That the Petitioner's Exceptions to the Hearing Officer's Conclusions of Law as they relate to Counts I, II, III, IV, VII, IX and X of the Administrative Complaint be, and the same are hereby, sustained.

   
   

6. That Petitioner's Exceptions to the Hearing Officer's recommended penalty to be imposed upon the Respondent, Constance B. Mastellone be, and the same are hereby, sustained.

   
   

7. That the Respondent, Constance B. Mastellone be, and she is hereby, adjudged guilty of the offenses and violations charged in Counts I, II, III, IV, V, as amended, VII, VIII, IX and X as contained in the Administrative Complaint for having violated Subsections 475.25(1)(a), 475.25(1)(c), 475.25(1)(i) and 475.25(3), Florida Statutes.

   
   

8. That the Respondent, Constance B. Mastellone be, and she is hereby, adjudged not guilty of the offense charged in Count VI of the Administrative Complaint.

   
   

9. That for such violations as charged in Counts I, II, III, IV, V, as amended, VII, VIII, IX and X of the Administrative Complaint, for which she has been adjudged guilty, the registration of Respondent Constance B. Mastellone be, and the same is hereby, revoked, said revocation to become effective on the effective date of the Order as provided by law.

DONE and ORDERED this 8th day of March 1977, at Winter Park, Florida.

John R. Wood Chairman

Maggie S. Lassetter Vice Chairman

Levie D. Smith, Jr. Member

I CERTIFY that a copy of the foregoing Final Order was mailed to Jame A. Baccus, Esquire, Attorney for Respondent, Triangle Building, 595 N.W. 91st Street, Miami, Florida, 33150, by United States registered mail this 8th day of March, 1977.

Executive Director

NOTICE TO RESPONDENT:

This Order shall become effective on the 7th day of April, 1977. However, you have a right of review by an Appellate Court, if you desire

Docket for Case No: 76-000472

Orders for Case No: 76-000472