STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1818

)

SHERRY L. GAYER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Sarasota, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on February 1, 1978.

APPEARANCES

The respondent did not appear in person or otherwise. Petitioner was represented by counsel:

Mr. Joseph A. Doherty, Esquire

400 West Robinson Avenue Orlando, Florida 32801

By administrative complaint filed August 9, 1977, petitioner alleged that respondent, while a registered real estate salesperson employed by Marjorie McCrory Real Estate, accepted earnest money from Robert L. Kenney which she did not deposit in her broker's escrow account; and that respondent misrepresented her relationship with the owners of the house which Mr. Kenney contracted to buy in that she told Mr. and Mrs. Kenney that the owners were her friends, when in fact they were her parents, all in violation of Sections 475.25(1)(a) and (c), and 475.42(1)(b) and (d), Florida Statutes (1877)

FINDINGS OF FACT

1. In September of 1976, Mr. and Mrs. Robert B. Kenney went to 8521 Madonna Place in Sarasota, Florida, in response to a newspaper advertisement. There they found respondent, who showed them through the house at that address, saying she was a friend of the owners who were offering it for sale. Respondent told the Kenneys that she was a registered real estate salesperson employed by Marjorie McCrory Real Estate, and gave them her card. But she said there would be no commission on any sale, because the owners were her friends and had helped her with babysitting.

   
   

2. On October 2, 1976, the Kenneys entered into a written agreement with Mr. and Mrs. Robert C. Tritschler, owners of the house respondent had shown them. By this con tract, which was received in evidence as petitioner's exhibit No. 3, the Kenneys agreed to buy the house in the event that they were able to

   sell their mobile home within thirty days' time and in the event that they were able to obtain financing for 80 percent of the agreed purchase price. The Kenneys were unable to obtain such financing and were also unable to sell their mobile home within thirty days of the signing of the contract.

   
   

3. On October 5, 1976, the Kenneys drew a check to respondent's order in the amount of one thousand dollars ($1,000.00), on which was written "Earnest Money-Escrow." The check was delivered to respondent. On October 6 1976, respondent endorsed the check arid deposited it in a savings account. Afterwards, she showed the Kenneys her newly acquired pass book, on which was written "Sherry Gayer, Escrow Account for Robert L. Kenney."

   
   

4. After the Kenneys' efforts to meet the conditions of the contract proved unavailing, they demanded the return of the money they had given respondent. Her refusal resulted in litigation which was settled when the Kenneys agreed to accept five hundred dollars ($500.00), plus the interest that had accrued on the entire one thousand dollars ($1 000.00) while it had been on deposit in respondent`s account. The other five hundred dollars ($500.00) went to the Tritschlers, in accordance with the terms of the settlement agreement.

   
   

   CONCLUSIONS OF LAW

   
   

5. No competent evidence was adduced to establish that Mr. and Mrs. Tritschler were anybody other than who respondent said they were.

   
   

6. The evidence did establish, however, that respondent refused to return the Kenneys' earnest money, in violation of Section 475.25(1)(c), Florida Statutes (1977); and that she operate[d] as a real estate broker," Section 475.42(1)(b) Florida Statutes (1977), while being registered as a salesperson. In addition, respondent accepted "money in connection with [a] . . . real estate brokerage transaction," Section 475.42(1)(d) Florida Statutes (1977), in her own name, rather than in her employer's name.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's license for sixty (60) days.

DONE and ENTERED this 10th day of March, 1978, 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. Joseph A. Doherty, Esquire Florida Real Estate Commission

400 West Robinson Avenue Orlando, Florida 32801

Ms. Sherry L. Gayer 2116-59th Street Sarasota, Florida 33580

Docket for Case No: 77-001818

Orders for Case No: 77-001818