STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT C. PRUYN, )

)

Plaintiff, )

)

vs. ) CASE NO. 76-1450

)

LEROY WILSON, )

)

Defendant. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 16, 1976, in Ft. Lauderdale, Florida.

APPEARANCES 1/

Appearing on behalf of Manuel E. Oliver, Esquire the Plaintiff: Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

The Florida Real Estate Commission (Commission), through its representative, Robert C. Pruyn, (Plaintiff), filed an administrative complaint against Leroy Wilson (Defendant) on July 28, 1976. In Count one of the complaint, it is alleged that the Defendant, Leroy Wilson, a real estate broker, in his effort to assist and aid Robert English and his wife Mazie English to qualify and obtain FHA mortgage financing, prepared a deposit receipt contract to reflect a $600 deposit whereas in actuality he received $300, knowing that FHA required at least a $600 deposit prior to approval thereof. Based thereon, it is alleged that Defendant is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, and breach of trust in a business transaction, in violation of 475.25(1)(a), Florida Statutes, and is guilty of forming an intent, design, or scheme to engage in any such misconduct in violation of Section 475.25(1)(a), Florida Statutes. In Count two it is alleged that immediately after the Englishes entered into said deposit contract, Defendant and the Englishes mutually agreed to rescind and cancel said contract since it appeared to the parties that the Englishes would not qualify for FHA mortgage financing and they (the Englishes) made a demand upon Wilson for a return of their $300 earnest money deposit which he failed to return until an investigation was initiated by the Commission into the above described Wilson-English transaction by investigator Pruyn. The Commission alleges in its complaint that but for its investigation of this matter, Defendant would not have returned said $300 earnest money deposit to the Englishes and that by reason thereof, Defendant is guilty of misrepresentation, false promises and false pretenses, in violation of Sections 475.25(1)(a), Florida Statutes. In Count three it is alleged that on or about September 16, 1975, the Commission conducted an official inspection of

Defendant's real estate brokerage office registered and located at 2951 N.E. 24th Avenue, Ft. Lauderdale, Florida and at that time, Defendant Wilson advised investigator Pruyn that he had one real estate brokerage transaction pending in which he was entrusted with a $300 earnest money deposit in connection therewith. It is alleged that an examination of Defendant's sole escrow bank account maintained at the Plantation First National Bank (Landmark) 3800 West Broward Boulevard, Ft. Lauderdale, Florida, showed a total balance of $295 as of September 16, 1975. In addition, the examination also revealed that on or about August 14, 1975,Defendant's escrow Bank account balance was $65 when it should have contained the entire $300 earnest money deposit made in the Wilson-English transaction. Based thereon, the Commission alleges that the Defendant is guilty of failing to have maintained in his escrow bank account funds entrusted to him in his capacity as a real estate broker until disbursement thereof is properly authorized in violation of Sections 475.25(1)(i), Florida Statutes, and Defendant is guilty of having converted funds entrusted to him for his own personal use or for some use for which it was not intended, or without the knowledge, consent or authorization of the person or persons entitled thereto in violation of Sections 475.25(1)(a) Florida Statutes.

In Count four it is alleged that the Commission conducted an official investigation of the Defendant's real estate brokerage office on September 16, 1975, whereupon investigator Pruyn, after a careful and diligent search, failed to discover any real estate brokerage signs, books, records and files pertaining to Defendant's real estate brokerage actions and no physical evidence, such as a desk, chair, business mail nor a diary of visitors to establish proof that his office existed there or elsewhere, if it existed at all. Based thereon, it is alleged that Defendant failed to maintain an office and sign at the business address that he had registered with the Commission as required and set forth in Commission Rules 21V-10.07 and 10.09, Florida Administrative Code, and Section 475.22, Florida Statutes and therefore the Defendant is guilty of having violated Subsection 475.25(1)(d), Florida Statutes. Based thereon, the Commission seeks to suspend or revoke the Defendant's real estate brokers license and registration in accordance with Florida Statutes 475.25.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, I make the following:

1. The Defendant, Leroy Wilson, is a registered real estate broker with the Commission and during January 1, 1975 to November 5, 1975, Defendant was registered as trading as Overpass Real Estate. On April 27, 1975, Defendant was the owner of residential property located at 291 N.W. 29th Terrace, Ft. Lauderdale, Florida. On April 28, 2/ Robert English and his wife Mazie English in response to a "for sale" sign posted at 291 N.W. 29th Terrace, Ft. Lauderdale, Florida, went to the real estate brokerage office maintained by the Defendant at room 201 Romark Building, 3521 West Broward Boulevard, Ft. Lauderdale, Florida. Defendant and Mr. and Mrs. English discussed and negotiated a deposit receipt contract dated April 28, 1975, between the Englishes as purchasers and Defendant as seller for the purchase and sale of property owned by Defendant located at 291 N.W. 29th Terrace. Mrs. English testified that they put up an earnest money deposit of $300 acknowledged by Defendant, however, Defendant executed the deposit receipt contract reflecting an earnest money deposit of $600. (See FREC Exhibit number 2). Mrs. English testified that part of the terms of the contract was that she would apply for a mortgage loan but when it was determined that her daughter who was to participate with her in the purchase, was not able to stay with her, she and her

   husband decided not to apply for a mortgage loan. She explained to Defendant and he agreed to return the $300 deposit that she had submitted along with the deposit receipt contract. When the Englishes demanded the return of their deposit, Defendant advised them that "it was the law that the deposit must be kept for 6 weeks, and thereafter, he would have to keep the deposit another ten days." After the expiration of the six week period, the Englishes called the Defendant's office and was advised that he no longer lived there and other efforts by the Englishes to contact the Defendant were fruitless. Thereafter on or about August 20, 1975, the Englishes filed a complaint with the Commission.

   Approximately two days after the Commission initiated its investigation, the Defendant returned the $300 deposit to the Englishes. (See FREC Exhibit number 3).

   
   

2. N.B. Wolf an employee of Gulf Atlantic Mortgage Brokers testified that she was familiar with the document received into evidence as Exhibit number 2 which is the deposit receipt contract entered into by the Defendant and the Englishes. She testified that she did not recall ever having taken a credit application for the Englishes to apply for a mortgage loan.

   
   

3. Roy E. Conner, the operations officer for Plantation First National Bank testified that he caused to be gathered the bank records as they relate to the escrow account maintained by the Defendant at that bank. An examination of those bank records revealed that the Defendant's escrow bank account maintained at Plantation First National Bank had a shortage of $5 as of September 16 and that on August 14, his escrow bank account showed a balance of $65 when it should have reflected a balance of $300 in earnest money deposits. See FREC Exhibit number 4 received into evidence.

   
   

4. Pruyn investigated Defendant's brokerage office on September 16, at 2951 N.W. Avenue, Ft. Lauderdale, Florida. Based on an official inspection, Pruyn noted a number of inadequacies in that there were no letterheads, no desks, no chairs, no business mail, no diary of witnesses or any official sign as required and set forth in Commission Rule 21V-10.07 and 10.09, Florida Administrative Code and Section 475.22, Florida Statutes. See FREC Exhibit number 5 received into evidence.

   
   

5. As previously stated, the Defendant did not appear at the hearing nor did he have a representative present to present any defense to the charges made by the Commission in the administrative complaint.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

7. The burden of proving that a real estate broker has violated the real estate licensing law lies with the Florida Real Estate Commission, or its representative. State Ex Rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Florida 1973).

   
   

8. The authority of the Commission is derived from Section 475, Florida Statutes.

   
   

9. The action of the Defendant in the transaction involving the Englishes, in which he failed to timely return an earnest money deposit, constitutes a violation of Section 475.25(1)(a), Florida Statutes.

10. The action of the Defendant in failing to properly maintain in his trust bank account funds entrusted to him in his capacity as a real estate broker constitutes a violation of Subsection 475.25(1)(i), Florida Statutes.

    
    

11. The action of the Defendant in failing to maintain a sign and other requisites on or about the entrance to his principal place of business is contrary to Rule 21V-10.09, Florida Administrative Code and violative of Section 475.22, Florida Statutes and therefore Defendant violated Subsection 475.25(1)(d), Florida Statutes.

    
    

12. By his course of conduct in this case, the Defendant has shown that he is so dishonest and untruthful that the money, property, transactions and rights of those with whom he may sustain a confidential relationship may not be safely entrusted to him.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is hereby recommended that the Defendant's registration with the Florida Real Estate Commission as a real estate broker be revoked.

RECOMMENDED this 22nd day of October, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

ENDNOTES

1/ Although properly noticed, the Defendant and/or its representative, did not appear at the hearing.

2/ Unless otherwise noted, all dates are in 1975.

COPIES FURNISHED:

Manuel E. Oliver, Esquire Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Leroy Wilson

c/o Frank R. Baron, Sr. 1014 Northwest 9th Avenue

Ft. Lauderdale, Florida 33311

Docket for Case No: 76-001450

Orders for Case No: 76-001450