STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1002

)

MARVIN RAYMOND DANIEL, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Gainesville, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on August 9, 1977. The parties were represented by counsel:

APPEARANCES

For Petitioner: Mr. Bruce I. Kamelhair, Esquire 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Mr. W. O. Birchfield, Esquire

3000 Independent Square

Jacksonville, Florida 32201

By administrative complaint filed March 17, 1977, petitioner alleged that respondent, on or about January 30, 1976, while he was a real estate salesman associated with Dennis Carpenter Realty, Inc., entered into a contract with Harry and Margaret Westphal for the purchase of certain real property; that the offer which respondent made and the Westphals accepted recited that respondent had deposited $7,500.00 earnest money with S. Dennis Carpenter, Jr.; that in fact respondent had not made the deposit "as per the contract offer;" that respondent "at no time during the life of the contract . . . [informed the Westphals] that the $7,500.00 earnest money . . . had not been deposited with S. Dennis Carpenter, Jr., as active firm member of Dennis Carpenter Realty, Inc.;" so that respondent was "guilty of misrepresentation, concealment, dishonest dealing and breach of trust in a business transaction," all in violation of Section 475.25(1)(a), Florida Statutes (1975).

FINDINGS OF FACT

1. Respondent met Sibley Dennis Carpenter, Jr. (Carpenter) in 1974 or 1975, in connection with a land sale that is not otherwise relevant to this matter. In the summer of 1975, Carpenter asked respondent for assistance in obtaining financing for another, separate land transaction. On that occasion, Carpenter furnished respondent an unaudited, personal financial statement, prepared by an accounting firm, which put the net worth of Carpenter and his wife at slightly less than a half million dollars.

2. On November 19, 1975, respondent became affiliated with Dennis Carpenter Realty, Inc., as a real estate salesman. Because he had other irons in the fire, he only appeared at the office of Dennis Carpenter Realty, Inc., once every month or two. Not until the spring of the following year, after he had been licensed as a real estate broker, did respondent have access to the company's books.

   
   

3. In November of 1975, respondent met one Charles W. Van Cura, a hog farmer from Minnesota who expressed an interest in buying land in Florida, and referred Mr. Van Cura to Carpenter. Carpenter, possibly in the company of respondent, showed Mr. Van Cura certain real property belonging to Harvey H. Westphal and Margaret Westphal. Mr. Van Cura made an offer of one hundred fifteen thousand dollars ($115,000.00) for the property and deposited seven thousand five hundred dollars ($7,500.00) with Carpenter towards the purchase price, as evidenced by a binder receipt and deposit, dated December 31, 1975, and signed by Carpenter. Respondent's exhibit No. 1. Carpenter presented the offer to the Westphals, who refused Mr. Van Cura's offer but made a counteroffer of one hundred thirty-five thousand dollars ($135,000.00), by crossing out Mr. Van Cura's figures, substituting their own and signing their names. Both the offer and the counteroffer were "subject to receiving Federal Land Bank Loan of

   70 percent of purchase price . . ."

   
   

4. Van Cura told Carpenter he was unwilling to accept the Westphals' counteroffer. Carpenter persuaded respondent to buy the property himself, and, on January 6, 1976, Carpenter, respondent and Van Cura met in respondent's office. After some discussion, respondent drew two checks aggregating seventy- five hundred dollars ($7,500.00) to Van Cura's order. Petitioner's composite exhibit No. 6. Van Cura executed a receipt, respondent's exhibit No. 2, reciting that he had received seventy-five hundred dollars ($7,500.00) from respondent. At the time of this transaction, Carpenter could not have refunded Van Cura's deposit from the escrow account of Dennis Carpenter Realty, Inc., because there were insufficient funds in the account. Unbeknownst to respondent, Carpenter had never deposited Van Cura's money in the escrow account.

   
   

5. On January 30, 1976, Carpenter drew up a written offer on behalf of respondent to purchase the Westphal property for one hundred thirty-five thousand dollars ($135,000.00). Petitioner's exhibit No. 1. The binder receipt and deposit recited that respondent "and or assigns" had deposited seventy-five hundred dollars ($7,500.00) with Carpenter in earnest money. Although the Westphals accepted this offer, the transaction never closed, for reasons which were not developed in the evidence. The Westphals never made demand for the seventy-five hundred dollar ($7,500.00) deposit, and respondent never got the money back from Carpenter. Respondent has since decided to "treat it . . . as a loan, or write it off." (R119) At no time did respondent relate to the Westphals the history of the earnest money deposit.

   
   

6. In May of 1976, respondent was licensed as a real estate broker, and became secretary-treasurer of Dennis Carpenter Realty, Inc. Respondent and Carpenter agreed between themselves that the corporation should open an escrow account on which each could draw individually. This is reflected by a corporate resolution, dated May 4, 1976. Respondent's exhibit No. 7. Such an account was opened. When the first bank statement revealed to respondent that Carpenter had drawn improper checks against the escrow account, however, a second corporate resolution was drafted, dated July 23, 1976, respondent's exhibit No. 9, which authorized respondent, but not Carpenter, to draw against the escrow account.

   CONCLUSIONS OF LAW

   
   

7. Petitioner failed to prove respondent guilty of misrepresentation, concealment, dishonest dealing or breach of trust within the meaning of Section 475.25(1)(a), Florida Statutes (1975). The evidence indicates that respondent learned in the late spring of 1976 for the first time that Carpenter (who has since surrendered his broker's license) was breaching his fiduciary duty with respect to funds held in escrow. The evidence does not implicate respondent in these abuses in any way.

   
   

8. No impropriety was established with respect to the indirect nature of the earnest money deposit, particularly since petitioner's exhibit No. 1 acknowledges receipt of a deposit from respondent "and or assigns." Nothing in the evidence suggests that any party would now stand in any different position if respondent had drawn his checks in favor of Carpenter instead of in favor of Van Cura on January 6, 1976.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the administrative complaint be dismissed.

DONE and ENTERED this 15th day of September, 1977, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Mr. Bruce I. Kamelhair, Esquire 2699 Lee Road

Winter Park, Florida 32789

Mr. W. O. Birchfield, Esquire 3000 Independent Square

Jacksonville, Florida 32201

Docket for Case No: 77-001002

Orders for Case No: 77-001002