STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-510

)

F. P. CONCANNON, )

)

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 P.M., on May 23, 1979, at the Main Floor Conference Room, Volusia County Courthouse, West Indiana Avenue Entrance, Deland, Florida.

Petitioner was represented by Fred Langford, Esquire, Florida Real Estate Commission, 400 West Robinson Street, Post Office Box 1900, Orlando, Florida, 32502. Respondent was represented by Jefferson W. Clark, Esquire, Post Office Box 1450, New Smyrna Beach, Florida, 32069.

Petitioner, Florida Real Estate Commission (hereafter FREC) seeks to suspend or otherwise discipline the real estate broker's license of Respondent,

1. P. Concannon (hereafter Concannon), and Concannon's right to practice thereunder because, it is alleged, Concannon was guilty of concealment, culpable negligence or branch of trust in a business transaction or had violated a duty imposed upon him by law.

   
   

   FINDINGS OF FACT

   
   

   1. At the time of this hearing, and at all times pertinent to the allegations of the administrative complaint, Concannon was registered with FREC as a real estate broker holding license certificate No. 0016471.

      
      

   2. On March 31, 1978, a contract for sale and purchase of certain realty was executed by Mark and Barbara Casto as sellers and Samuel and Louise Theriault as buyers. The contract provided that Concannon was to hold deposit monies in escrow.

      
      

   3. The deposit was to be made in three (3) installments of $100.00 on March 31, 1978 $400.00 by April 30, 1978, and $500.00 by May 30, 1978, for a total cash deposit of $1,000.00. Further cash payment on closing was to be made in the approximate amount of $8,700.00.

      
      

   4. The buyers made the first two payments in accordance with the contract for sale and purchase and Concannon retained the sum of the two payments,

      $500.00, in his escrow account until the transaction ultimately closed. The

      $500.00 payment due by May 30, 1978, was never made.

   5. On May 10 1978, buyers and sellers executed an addendum to the original contract which addendum provided that the buyers would convey two real estate lets to the sellers in part payment for the real estate covered in the original contract, at a value of $2,500.00.

      
      

   6. At the time the addendum to contract was executed, the interests of the sellers were being represented by Mr. John H. Cumiskey, who was on associate of New Century Realty, the listing broker for the subject property. Concannon, through the offices of Century 21 realty, was the selling broker participating in a multiple listing opportunity.

      
      

   7. At about this time, the buyers appeared to be having difficulty in securing sufficient cash to close the transaction as originally written. To help alleviate the situation, the addendum was made and in addition, 95 percent financing was obtained so that cash requirements were further reduced. Prior to closing, the lots which were the subject of the addendum were actually sold to another party and the proceeds from that sale were placed in Cumiskey's escrow account.

      
      

   8. Because of the financial problems which were being encountered, there was some concern on the part of the seller, the listing broker, and the selling broker, that the transaction might not close. Cumiskey offered to take over the transaction in order to smooth it out and to ensure that all want as planned. Concannon agreed to this arrangement, but no change was made in the contract for sale and purchase or its addendum reflecting a change of responsibility for escrow deposits.

      
      

   9. Subsequently, May 30, 1978, came and went without the final deposit payment of $500.00 being made by the buyers. Cumiskey erroneously assumed that the final deposit had been made with Concannon. Meanwhile, Concannon having been assured by Cumiskey that all necessary funds for closing had been secured, erroneously assumed that the final $500.00 had been paid to Cumiskey.

      
      

   10. At no time did Concannon seek to verify whether the final payment was made nor did he inform the sellers of the status of that payment. Rather, the nonpayment of the final deposit was not brought to the sellers' attention until the day scheduled for closing, June 15, 1978.

       
       

   11. On that date, the buyers were presented with a statement reflecting the amount of cash they would be required to produce at the closing. The statement includes a notation that an additional deposit of $500.00 is required. On learning of this, the buyers claimed not to have the additional $500.00 and refused to close unless the price for the property was reduced by a like amount. Cumiskey advised the sellers of the buyers' position and the sellers agreed to reduce their selling price by $500.00. On this basis the transaction subsequently closed.

       
       

   12. There was no evidence upon which to base a finding that Concannon was guilty of intentional wrong doing.

       
       

       CONCLUSIONS OF LAW

       
       

   13. Concannon has been charged with concealment, culpable negligence or breach of trust in a business transaction or the violation of a duty imposed upon him by law. As noted previously, there is no evidence upon which to make a finding that Concannon intentionally concealed or broke a trust. However, the evidence does establish that up until the time of closing, Concannon remained

       the person responsible for receipt of the earnest money deposits and the placement of those funds in escrow. Concannon had an obligation to inform the sellers of any failure on the part of the buyers to deposit money in accordance with the contract.

       
       

   14. It is concluded that Concannon's failure to so notify the sellers constitutes culpable negligence and the violation of a duty imposed upon him by law. It is further concluded that Concannon's lack of specific intent to violate his duty combined with the confusing circumstances of this transaction as detailed previously should mitigate any administrative penalties imposed. It is, therefore,

RECOMMENDED that Concannon's license be suspended for one week and that the imposition of the penalty be suspended.

DONE and ENTERED this 24th day of August, 1979, in Tallahassee, Florida.

MICHAEL R. N. McDONNELL

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Fred Langford, Esquire

Florida Real Estate Commission

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

Jefferson W. Clark, Esquire Post Office Box 1450

New Smyrna Beach, Florida 32069

Docket for Case No: 79-000510

Orders for Case No: 79-000510