STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION )

An Agency of the State of Florida, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2016

) PD NO. 3237

KAREN KAY COLUCCI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in the above styled cause on the 5th day of April, 1978, at 1:00 P.M. in Room 113, Pasco County Courthouse, Dade City, Florida, before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Stephen C. Booth, Esquire

Richmond and Booth

1604 US Highway 19 North

New Port Richey, Florida 33553

For Respondent: Kenneth M. Meer, Staff Counsel

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32801 ISSUE

Whether the license of Karen Kay Colucci, No. 0062107 should be revoked or suspended or the licensee otherwise disciplined for violation of Chapter 475, Florida Statutes.

FINDINGS OF FACT

1. The Respondent Karen Kay Colucci, whose license No. is 0062107,is a registered real estate salesman in the State of Florida.

   
   

2. The Respondent is employed by Magnolia Homes, Inc., 300 Embassy Boulevard, Port Richey, Florida. The owner of the business is David Lukacher.

   
   

3. On May 20, 1976, Harvey Thompson and his wife Mary Thompson looked at model homes built by Magnolia Homes, Inc. They were assisted by a registered real estate salesman for Magnolia Homes, Inc., Patrick D. DePianto. Mr. and Mrs. Thompson told the real estate salesman that they wanted to build a house but wanted to sell their own house first.

4. Mr. and Mrs. Thompson found a lot and model home they desired and then proceeded to Mr. DePianto's office to make a deposit. The office in which the transaction took place is a large room in which several people worked for the builder including the Respondent Karen Kay Colucci who is the sales manager. Mr. DePianto's desk and work area was in rather close proximity to Mrs. Colucci's desk and work area.

   
   

5. Mrs. Colucci was not involved in the assistance to the Thompsons in locating a lot and model home and was not directly involved with Mr. DePianto and Mr. and Mrs. Thompson at the time the transaction under consideration took place. At the time of making the deposit Mr. and Mrs. Thompson asked Mr. DePianto if they could get their deposit back if they did not sell their home. Mr. DePianto called over to Mrs. Colucci and asked if a refund could be made if the Thompsons could not sell their house and, satisfied with the answer, assured the purchasers that there would be no problem. A check was written out for five hundred ($500) dollars and handed to Mr. DePianto and a receipt was written out by Mr. DePianto and handed to the Thompsons. There was no representation on the receipt written by Mr. DePianto concerning the refundability of the deposit.

   The Thompsons did not request that the representation be included on the receipt.

   
   

6. Mr. and Mrs. Thompson left the office feeling that there would be no problem obtaining a refund of the deposit if they could not sell their home , although they were confident that the sale of their home was imminent.

   
   

7. Thereafter the expected sale of Mr. and Mrs. Thompson's home was not consummated and the Thompsons asked Mr. DePianto for a refund of the deposit. Mr. DePianto asked for the request to be in letter form and Mr. Thompson complied. Thereafter he was advised by Mr. DePianto that the builder, Mr. David Lukacher, would not return the deposit but would hold the $500 until they were able to buy one of their homes and credit that amount to the purchaser. Mr. Thompson requested Mr. DePianto to put the discussion in letter form which Mr. DePianto did. Mr. Thompson wrote Mr. Lukacher a letter and called him on the telephone requesting that the deposit be refunded but no refund was forthcoming.

   
   

8. Approximately six months later Mr. DePianto sent Mr. and Mrs. Thompson a check for $250, half of the deposit, plus 7 months of interest at 6 per cent per annum. The remainder of the deposit has not been returned to Mr. and Mrs. Thompson and Mr. Lukacher retains the $250, having previously sent $250 of the

   $500 deposit to Mr. DePianto.

   
   

9. Petitioner Florida Real Estate Commission contends: that the Respondent Karen Kay Colucci knowingly misrepresented to the Thompson's that there would be no problem obtaining a refund of the $500 deposit if the Thompson's could not sell their home; that such representation means the Respondent is guilty of misrepresentation, false promises, false pretences, culpable negligence, or breach of trust in a business transaction and that therefore her license should be suspended.

   
   

10. Respondent contends that she was doing other work at the time the subject transaction took place and that she had no involvement with the transaction between Mr. DePianto and the Thompsons. Respondent further contends that in reply to the question posed to her by Mr. DePianto in the busy office that a refund could be made providing Mr. Lukacher, the builder, approved it.

    
    

11. The hearing Officer further finds:

12. There is no consistent testimony by the witnesses as to exactly what was said in reference to a refund at the time Mr. and Mrs. Thompson were seated at the desk of Mr. DePianto. There is no consistent testimony as to what exactly Mr. DePianto asked the Respondent or what her answer was.

    
    

13. Mr. and Mrs. Thompson failed to request that the receipt reflect that the deposit was conditional and would be returned if the Thompson's could not sell their home. Mr. DePianto did not make the receipt a conditional receipt.

    
    

14. Mr. David Lukacher, the builder, refused to refund the deposit to the Thompsons, kept $250 of it, and sent Mr. DePianto the salesman, $250. Mr. DePianto refunded his share of the deposit plus interest to the Thompsons.

    
    

    CONCLUSIONS OF LAW

    
    

15. Section 475.25(1)(a), Florida Statutes, provides as follows:

    
    

    1. 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. . .

    * * *

    (d) Violated any of the provisions of this chapter, or any lawful order, rule or regulation made or issued under the provisions of this chapter. . .

    
    

16. There is no preponderance of evidence to show that the Respondent Karen Kay Colucci is in violation of the foregoing statutes. She spoke to the point of whether a refund could be forthcoming, but it is not shown that she either intentionally or unintentionally misrepresented facts to Mr. and Mrs. Thompson and the salesman, Mr. DePianto, regarding the refund. There is evidence to show that Mrs. Colucci was not directly involved in the sale, did not receive financial gain from the transaction and that she attempted to accommodate Mr. and Mrs. Thompson by informing the builder that the Thompsons were requesting a refund of the deposit.

RECOMMENDATION

Dismiss the complaint.

DONE and ORDERED this 23rd day of May, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

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

COPIES FURNISHED:

Kenneth A. Meer, Esquire Staff Counsel

Florida Real Estate Commission

400 West Robinson Avenue Orlando, Florida 32801

Karen Kay Colucci Magnolia Homes, Inc.

300 Embassy Boulevard

Port Richey, Florida 33568

Docket for Case No: 77-002016

Orders for Case No: 77-002016