STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD ) OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-649

)

LORETTA WOLOSZYK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this cause on June 19, 1979, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: John Namey, Esquire

Department of Professional Regulation Board of Real Estate

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Loretta Woloszyk, Pro Se

733 Hummingbird Way, Apartment #3 North Palm Beach, Florida 33408

ISSUES

The issues posed for decision herein are whether or not the Respondent, Loretta Woloszyk, failed to account for or deliver a security deposit received by her, in violation of Section 475.25(1)(c), Florida Statutes, and whether or not Respondent derivatively violated Subsection 475.25(1)(a), Florida Statutes, in that she is guilty of a breach of trust in a business transaction and, therefore, violated Subsection 475.25(1)(a), Florida Statutes.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found.

   
   

2. Loretta Woloszyk, Respondent herein, is presently registered with the Board of Real Estate as a broker/salesperson.

   
   

3. On or about April 15, 1977, Respondent Woloszyk entered into a deposit receipt contract executed with John F. and Jeannine M. Chrest as purchasers of a house owned by Respondent Woloszyk located at 210 North G Street, Lake Worth,

   Florida. Pursuant to the terms of said deposit receipt contract, John E. Knowles signed as broker for receipt of a $300 cash deposit from the Chrests as purchasers. On or about April 22, 1977, the $300 deposit was placed in the escrow account of Sunshine Estates, Inc., the corporate broker by which the Respondent was employed. The deposit receipt contract was contingent upon the buyer qualifying for a Veterans Administration (VA) mortgage loan in the amount of $26,900. The relevant portion of the contract provided as follows:

   
   

   VA Appraisal: It is expressly agreed that, notwithstanding any other provisions of this contract, the purchaser shall not incur any penalty by forfeiture of earnest money or otherwise be obligated to complete the purchase of the property described herein, if the contract price or cost exceeds the reasonable value of the property established by the Veterans Administration. The purchaser shall, however, have the privilege and option of proceeding

   with the consummation of this contract without regard to the amount of the reasonable value established by the Veterans Administration.

   
   

4. By letter dated May 25, 1977, the Chrests were notified that the subject property was appraised at $18,750, and thus was not acceptable under the minimum property appraisal standards of the Veterans Administration. With this notification, John Chrest went to the offices of Sunshine Estates, Inc., and demanded a return of his $300 earnest money deposit.

   
   

5. John E. Knowles, as broker in receipt of the Chrests' $300 deposit, returned the $300 deposit check to Respondent Woloszyk, who deducted $200 from the Chrests' $300 deposit based on a separate rental transaction with the Chrests on the same subject property.

   
   

6. During the hearing, John Chrest testified that he contacted Respondent for purchase of her residence situated in Lake Worth Farms.

   
   

7. Mr. Chrest agreed during cross-examination that he initially contacted Respondent to "buy or rent Respondent's residence". He also testified that upon receipt of the VA appraisal at an amount below the agreed upon purchase price of

   $26,900, he agreed to pay to Respondent rent in the amount of $150 plus a $50 security deposit, which amount was deducted from the Chrests' security deposit.

   
   

8. The FHA-VA deposit receipt contract contains a special condition entered by and between the parties (Woloszyk and the Chrests) indicating that "Buyer will pay rental of $225 per month until closing, beginning on or before May 1, 1977. Buyer will honor rental agreement for Kenneth Johnson, tenant, from April 1, 1977, to March 31, 1978, or $80 per month rent."

   
   

9. Based thereon, and on John F. Chrest' s admission that be agreed to the rental fee which was deducted from his deposit received by Respondent Woloszyk, the administrative charges alleged are without basis. I shall so recommend.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.

11. The parties were duly noticed pursuant to the notice provisions of Chapters 120 and 475, Florida Statutes.

    
    

12. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

    
    

13. Insufficient evidence was offered to establish that the Respondent, Loretta Woloszyk, engaged in conduct violative of Subsections 475.25(1)(a) or (c), Florida Statutes, as alleged.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby,

RECOMMEND:

That the Administrative Complaint filed herein be DISMISSED in its entirety.

RECOMMEND this 6th day of August, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1979

COPIES FURNISHED:

John Namey, Esquire

Department of Professional Regulation Board of Real Estate

Post Office Box 1900 Orlando, Florida 32802

Ms. Loretta Woloszyk

733 Husiingbird Way, Apt. #3 North Palm Beach, Florida 33408

Docket for Case No: 79-000649

Orders for Case No: 79-000649