STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1591

)

RONALD F. BURTH and RON )

BURTH & ASSOCIATES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 1:00 o'clock p.m., on October 18, 1978, in Room 455, Federal Building, United States Courthouse, 80 North Hughey Street, Orlando, Florida.

Petitioner was represented by Joseph A. Doherty, Esquire, Florida Real Estate Commission, 400 West Robinson Street, Post Office Box 1900, Orlando, Florida. Respondent was represented by H. Jay Stevens, Esquire, 47 East Robinson Street, Suite 225, Orlando, Florida.

Petitioner, Florida Real Estate Commission (hereafter FREC), seeks to discipline Respondent, Ronald F. Burth and Ron Burth and Associates, Inc. (hereafter collectively Burth), for alleged violations of Chapter 475, Florida Statutes, rising in connection with Burth's representation of one Shelby P. Gray as real estate broker.

FINDINGS OF FACT

1. At the time of the hearing, and at all times pertinent to the proceeding, Respondent, Ronald F. Burth, was registered with FREC as a real estate broker and Respondent, Ron Burth and Associates, Inc., was registered as a real estate broker corporation.

   
   

2. On or about October 17, 1977, Mrs. Shelby P. Gray (hereafter Gray) entered into an exclusive right of sale contract with Burth for the sale of Gray's property located at 732 Wood Valley Way, Orange County, Orlando, Florida. On or about January 7, 1978, Burth and Gray agreed to terminate the exclusive right of sale contract and Burth verbally agreed to purchase the subject real estate from Gray. In exchange for title to the property Burth agreed to assume the existing mortgage and to pay any overdue mortgage payments. A tentative closing date was established for January 13, 1978, and Burth ordered a title search which revealed that certain clouds on the title would have to be cleared prior to closing.

   
   

3. Subsequent to January 7, 1978, Burth entered an advertisement in the newspaper offering the subject real estate for rent. On January 9, 1978, one James J. Provost (hereafter Provost) gave Burth a $50.00 check payable to "Ron

   Burth" as a deposit for the lease of the subject property which Burth had shown Provost on that day. On January 10, 1978, Provost signed a lease for the subject property and paid an additional $325.00. Both checks received by Burth were deposited in his personal investment account. Burth specifically told Provost that someone from out of town actually owned the house which he was leasing.

   
   

4. Burth and Provost discussed the terms and conditions of a possible sale of the premises, but Provost was, in his words, in "no position" to make a downpayment. Accordingly, there was no offer to purchase the premises.

   
   

5. Between the time Provost signed the lease, January 10, 1978, and the time Gray returned to Orlando, January 14, 1978, Provost prematurely moved into the house. Burth had not advised Gray of the lease at this time, but Gray's sister discovered Provost in occupation when she went to check on the premises.

   
   

6. That same evening, Burth telephoned Gray to tell her that the "papers" were ready and that they should "get together." There was no testimony to show what the "papers" were. Burth did not mention Provost's lease until Gray's sister demanded to know who was in the house. Burth then acknowledged that the house was leased and that he was coming over to the house to discuss it further. However, when Burth arrived, Gray refused to talk with him, referring instead to the fact that her lawyer would handle the matter from that point forward. All monies received by Burth were subsequently turned over to that attorney.

   
   

   CONCLUSIONS OF LAW

   
   

7. Burth is charged with three counts of violating the real estate law. Taking them out of order, it is alleged in Count Two that Burth failed to inform Provost that he was not the owner of the subject property. However, the evidence coming from Provost himself was that Burth advised that the owner was someone other then himself from out of town.

   
   

8. Count Three charges that Burth failed to convey an offer to purchase made by Provost. However, here the evidence is uncontroverted that no such offer was made. Indeed, Provost was financially unable to make such an offer.

   
   

9. The remaining allegation in Count One charges Burth with failing to account and deliver to Gray the monies received from Provost for the lease. The evidence fails to support the charge. While Burth did deposit the monies in his personal account, he had, at that time, already agreed to purchase Gray's property. The listing contract was cancelled. While the better practice would have been to deposit the monies in an escrow account until the transaction had closed, there is no evidence upon which to conclude that Burth was guilty of dishonest dealing. It is, therefore,

RECOMMENDED that FREC enter its Final Order declaring Burth to be not guilty of the administrative charges against him.

DONE and ENTERED this 29th day of January, 1979, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Joseph A. Doherty, Esquire Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

H. Jay Stevens, Esquire

47 East Robinson Street Suite 225

Orlando, Florida

Docket for Case No: 78-001591

Orders for Case No: 78-001591