STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Plaintiff, )

)

vs. ) CASE NO. 77-1560

) P.D. NO. 3229

CLARENCE A. WALKER, )

)

Defendant. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on November 16, 1977, in the Conference Room of Lakeland City Hall, Lakeland, Florida, by Stephen F. Dean, Hearing Officer of the Division of Administrative Hearings.

This case was presented on an administrative complaint filed by the Florida Real Estate Commission against Clarence A. Walker alleging that he failed to deposit escrow funds promptly to his escrow account, that he failed to account and deliver upon demand escrow funds, that he appropriated escrow funds to his own use, and is guilty of course of conduct which shows he is so incompetent, negligent, dishonest and untruthful that the money, property, transactions and rights of investors and those within whom he may sustain a confidential relationship may not be safely entrusted to him contrary to Sections 475.25(1)(a), (c), (i) and 475.25(3), Florida Statutes.

The Florida Real Estate Commission presented evidence that Walker was late on one occasion in depositing money to his escrow account, that Walker had appropriated escrow money to his own use, and that Walker had failed to account for and deliver money held in escrow. Walker presented testimony in mitigation that he had been under great emotional strain following the suicide of his wife and that he had mishandled his business affairs.

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire For Respondent: Charles R. Mayer, Esquire

FINDINGS OF FACT

1. Clarence A. Walker is a registered real estate broker who held license number 0092482 issued by the Florida Real Estate Commission.

   
   

2. Walker was the broker in a transaction between David H. Brown, purchaser, and Phillip E. Jones, Seller. Walker received a $10,000 dollar check as earnest money from Brown. Walker deposited this money into account number 419-400 at the Peoples Bank of Lakeland, Lakeland, Florida. Walker received the check on July 1, 1976, but did not deposit it until July 7, 1976.

3. At closing on the Brown-Jones transaction, Walker was unable to deliver the $10,000 deposited with him. According to Walker, he had used the money for his own purposes. Walker subsequently arranged to repay the money ($4,000) by giving a note secured by a mortgage on his home.

   
   

4. Becky Elliot had an exclusive right of sale on Jones' property. Elliot asserted a claim against the commission payable by Jones to Walker. However, there was no written agreement, no oral agreement, and no custom established by prior practice which entitled Elliot to a share of the Walker commission. Walker's contract with Jones called for a $6,000 commission. Jones entered this contract after rejecting a contract presented by Elliot. Jones advised Elliot that he would accept Walker's contract and asked her to contact Walker for him. Jones may have been obligated to pay a commission to both Elliot and Walker, but there is no basis for Elliot's claim for a portion of the escrowed moneys.

   
   

5. Walker was also broker on a transaction between West Lakeland Venture, as seller, and Bobby J. Thomas, as purchaser. Thomas paid Walker $10,000 as a deposit receipt. Thomas received the check on July 14, 1976, and deposited it on July 15, 1976, however, he deposited it so late on July 15, 1976, that it was marked received by the bank on the banking day of July 16, 1976. This check was deposited to the same account as the $10,000 in the Jones/Brown transaction.

   
   

6. Walker acted as broker in a transaction in which Dr. L. C. Taylor offered to purchase certain real property known as Beal-Ariana-12. Walker received $500.00 from Dr. L. C. Taylor, which he deposited to account number 101-158-56 in Imperial Bank of Lakeland, Lakeland, Florida. This account was designated Walker's escrow account. With the deposit of this check, the day's

   ending balance was $253.40. Subsequently, Walker repaid Dr. Taylor $500.00 when his offer was rejected from account number 419-400 at Peoples Bank of Lakeland, Lakeland, Florida. This account was not designated an escrow account, it's records showed withdrawals payable to cash, and it was from this account Walker misappropriated funds sufficient to impair his ability to produce the $4,000 due on the Jones/Brown transaction less Walker's $6,000 commission.

   
   

7. It is clear from the evidence introduced that the escrow account in the Imperial Bank and the undesignated account in Peoples Bank were both impaired as a result of Walker's misappropriation of moneys from these accounts This indicates a course of conduct in which Walker misused moneys entrusted to him in a fiduciary capacity.

   
   

8. Walker's only defense was that his wife had committed suicide and that for a period of approximately one year he "went wild," together with his efforts to make restitution on the Brown/Jones transaction.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Florida Real Estate Commission has authority to bring administrative complaints against its registrants and to enter final orders on those complaints pursuant to Chapter 475 and Chapter 120, Florida Statutes.

   
   

10. The facts show that Walker misappropriated funds deposited in account number 101-158-56 in the Imperial Bank of Lakeland and from account number 419-

    400 at Peoples Bank of Lakeland. Both accounts were shown to have balances which were less than the moneys required to be on hand in those accounts.

    Walker admitted misappropriation of escrowed funds from the Peoples account. It is clear that he had misappropriated moneys from the Imperial account because he should have had money on deposit in that account to pay Dr. Taylor.

11. He was late with his deposit of the Jones check for $10,000 which, considering the intervening July 4, 1976, weekend, may be excusable neglect. He was timely with the Thomas account, depositing the money the day following receipt of the check.

    
    

12. Once money is deposited to an escrow account, the misappropriation of funds from the account impairs all moneys on deposit. It cannot be said that he met his obligation to Thomas or Taylor, and only failed to meet his obligation to Jones. It just happened that the piper had to be paid when the time arrived to produce the $4,000 for the Jones closing.

    
    

13. Walker's conduct is a clear violation of Sections 475.25(1)(a), (c) and (i) , Florida Statutes. Because of the apparent duration of this conduct, it constitutes a violation of Section 475.25(3), Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the registration of Clarence A. Walker as a real estate broker be revoked.

DONE and ENTERED this 12th day of December, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

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

904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1977.

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Clarence A. Walker

108 East Palmetto Street Lakeland, Florida 33801

Charles R. Mayer, Esquire Post Office Hex 205 Lakeland, Florida 33802

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

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

FLORIDA REAL ESTATE COMMISSION,

An agenct of the State of Florida,

Petitioner, PROGRESS DOCKET NO. 3229 POLK COUNTY

1. DOAH NO. 77-1560

   
   

   CLARENCE A. WALKER,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   At a regular meeting of the Florida Real Estate Commission, held at its Executive Headquarters in Orlando, Florida on January 18, 1978.

   
   

   PRESENT: Maggie S. Lassetter, Chairman Levie D. Smith, Jr. , Vice Chairman Arthur N. Hamel, Member

   
   

   APPEARANCES: Frederick H. Wilson, Esquire,

   Attorney for Petitioner Charles R. Mayer, Esquire,

   Attorney for Respondent Clarence A. Walker, Respondent

   
   

   This matter came on for Final Order upon the hearing Officer's Recommended Order and Respondent's Exceptions thereto, and upon consideration thereof, together with a review of the complete record and oral argument of counsel for the Petitioner and the Respondent, and statements made by the Respondent in person, and the Commission being fully advised in the premises finds:

   
   

   1.

   
   

   That Respondent Clarence A. Walker is a registered real estate broker with the Commission at the business address 108 Palmetto Street, Lakeland, Florida.

   
   

   2.

   
   

   The Respondent's Exceptions to the Hearing Officer's Recommended Order are not well taken and should be rejected, except as to penalty.

   3.

   
   

   The Hearing Officer's Recommended Order is supported by competent, substantial evidence in the record and should be adopted as the Order of the Commission except as to penalty.

   
   

   4. IT IS THEREUPON ORDERED that:

   1. the Respondent's Exceptions to the Hearing Officer's recommended Order be, and the same are hereby, rejected, except as to penalty;

      
      

   2. the Hearing Officer's Findings of Fact and Conclusions of law be, and the same are hereby, adopted by the Commission; and

      
      

   3. The Hearing Officer's Recommended Order to revoke Respondent's registration be, and the same is hereby, rejected.

5.

IT IS FURTHER ORDERED that the Defendant, Clarence A. Walker be, and he is hereby, found guilty of violating Subsections 475.25(1)(a), (c) and (i), Florida Statutes, a charged in the Administrative Complaint, except for Count Four and Count Nine, and for said violations the registration of Respondent Walker is hereby suspended for a period of two (2) years.

DONE and ORDERED at Orlando, Florida, this 13th day of February, 1978.

Maggie S. Lassetter Chairman

Arthur N. Hamel Member

Vice Chairman Levie D. Smith, Jr. abstained.

Levie D. Smith, Jr. Vice Chairman

I CERTIFY that a copy of the foregoing Order was mailed to Charles R. Mayer, Esquire, Attorney for Respondent, Post Office Box 205, Lakeland, Florida 33802, by United States certified mail this 13th day of February, 1978.

Executive Director

NOTICE TO RESPONDENT:

This Order shall become effective on the 15th day of March, 1978. However, you have a right of review by an Appellate Court, if you desire

You are to comply with this Order. An envelope is enclosed for your convenience in returning your certificate.

Docket for Case No: 77-001560

Orders for Case No: 77-001560