STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 80-788

)

M. BETTY MURRAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a public hearing in this cause on July 30, 1980, at the Volusia County Courthouse Annex, Daytona Beach, Florida.

APPEARANCES

For Petitioner: Frederick H. Wilson, Esquire

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent: Richard W. Withers, Esquire

Dunn, Smith & Withers Post Office Drawer 2600

Daytona Beach, Florida 32015

By an Administrative Complaint filed April 3, 1980, the Department of Professional Regulation, Board of Real Estate, hereafter "Board", sought to suspend or otherwise discipline the Respondent's license as a real estate broker and her right to practice pursuant to said license.

On April 10, 1980, the Respondent disputed the allegations of the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On May 27, 1980, the Respondent filed an Answer to the Administrative Complaint.

At the final hearing, testimony of the following witnesses was taken: Berrien Becks, Sr., Esquire; Sylvia Van De Mark; S. Evelyn Holland; Fred W. Holmes; A. Lewis Smith and M. Betty Murray. Ms. Elizabeth Stein, the complaining witness in this proceeding, failed to appear at the final hearing despite being under subpoena to appear as a witness for the Board. When the complaining witness failed to appear, counsel for the Respondent agreed to present the Respondent's case first and representatives of the Board here requested by the Hearing Officer to attempt to contact the complaining witness to secure her presence and testimony at the hearing. After all the witnesses

present testified, counsel for the Board moved for a continuance due to the unexplained absence of the complaining witness. This motion was denied.

Exhibits 1-3 submitted by the Petitioner and Exhibits 1-10 submitted by the Respondent were received into evidence without objection.

A Proposed Recommended Order was submitted by the Respondent. Those proposed findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the result reached.

FINDINGS OF FACT

1. The Respondent, M. Betty Murray, currently holds Florida Real Estate Broker's License number 62943. At all times material to this proceeding, the license was in full force and effect.

   
   

2. The Respondent represented L. O. Huckaby and Sarah Huckaby in the sale of property located at 363 Boylston Avenue, Daytona Beach, Florida, to Elizabeth

   T. Stein, the complainant in this proceeding.

   
   

3. Pursuant to her representation of the Huckaby's, the Respondent, on or about June 18, 1979, prepared a proposed contract for the sale and purchase of the subject property. Prior to signing the contract and tendering a deposit thereunder, Ms. Stein reviewed the contract with her attorney, Berrien Becks, Sr.

   
   

4. When reviewing the contract with Mr. Becks, Ms. Stein failed to inform either Mr. Becks or his secretary, Sylvia Van De Mark, that she intended to use the property as either a duplex or a triplex. Had Ms. Stein indicated such an intent, a provision to that effect would have been included in paragraph VIII of the contract for sale and purchase. This was the normal procedure utilized in the ordinary course of business by the Becks' law firm. The contract for sale, Respondents Exhibit 1, shows no such provision or notation.

   
   

5. The sellers, Mr. and Mrs. Huckaby, were represented by Charles E. Booth, Esquire. On behalf of Ms. Stein, Mr. Becks requested that certain repairs be made to the property. Mr. Booth rejected these demands by letter dated July 24, 1979.

   
   

6. Although the contract does not state that the property was intended to be used as a duplex, the property is in fact recognized as a de facto duplex under the nonconforming use provisions of the city's zoning ordinance. Had Ms. Stein elected to proceed with the sale, she would have been permitted to utilize the property as a two unit property so long as she lived in one of the units which was her expressed intent.

   
   

7. Prior to paying the balance of the deposit due on the contract, Ms. Stein and the Respondent went to Mr. Booth's office where Mr. Booth confirmed by telephone conversation with city officials and in the presence of both Ms. Stein and the Respondent, the lawful use of the property as a single family residence with attached rental unit. Following this information, Ms. Stein paid the balance into the Respondent's escrow account.

   
   

8. On August 20, 1979, Ms. Stein demanded return of the $9,000.00 deposit from the Respondent. Upon receipt of this demand, the Respondent contacted Mr. Booth who instructed her to retain the deposit in her escrow account. Mr. Booth

   and Mr. Becks negotiated a release which was signed by the Sellers on August 28, 1979 and by Ms. Stein on September 11, 1979. The release authorized disbursements to be made including $500.00 to the Respondent, $150.00 to Mr.

   Booth, $43.00 to Lawyers Title Services, Inc. and the remaining $8,307.00 to Ms. Stein.

   
   

9. On August 20, 1979, prior to signing the release, Ms. Stein sent a complaint to the Board concerning the return of her $9,000.00. On September 7, 1979, Ms. Stein sent another letter to the Board indicating that she had not agreed to the disbursements set forth in paragraph 8 above notwithstanding her agreement to sign the release.

   
   

10. Ms. Stein's attorney, Mr. Becks, witnessed the release and explained the legal implications of the release in detail to her prior to her signing. Mr. Stein did not inform Mr. Becks of her correspondence with the Board which attempted to disclaim the release.

    
    

11. At no time did the Respondent represent the property as a triplex, but only as a single family residence with a single attached rental unit, which was a permissible use under the city zoning ordinance. In fact, Ms. Stein defaulted on the contract and under its express terms could have forfeited the entire

    $9,000.00. The release negotiated between Mr. Becks and Mr. Booth which returned $8,307.00 to Ms. Stein was generous and demonstrated good faith efforts on the part of the Sellers to settle this matter amicably.

    
    

12. The Respondent has maintained her registered office at 231 Gradview, Daytona Beach, Florida. The office consists of a room where she maintains her business files and which can be closed for privacy.

    
    

13. The allegations of Ms. Stein against the Respondent were untrue and were made with knowledge that neither the Huckaby's nor the Respondent had engaged in any illegal or unethical activities regarding this transactions. The testimony of Mr. Becks, attorney for Ms. Stein and the affidavit of Mr. Booth, attorney for the Huckaby's, corroborates the Respondent's testimony and contradicts the allegations made in the complaint filed by Ms. Stein and the administrative complaint filed by the Board which was based entirely upon Ms. Stein's allegations. Ms. Stein's failure to appear at the final hearing supports the conclusion that she knew the allegations made by her could not be proved at the hearing.

    
    

14. Any equitable or legal rights which Ms. Stein may have had to pursue this matter ended when she knowingly and voluntarily signed a release in order to secure the return of a substantial portion of her deposit monies.

    
    

15. In effect, the only misrepresentation in this case was that made by Ms. Stein when she represented that the release would extinguish all responsibilities, obligations and rights arising from the contract in return for the $8,307.00 and then effectively requested the Board to proceed against the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause.

17. There is no evidence to support the allegations set forth in Counts I and II. There is insufficient evidence to support the allegations set forth in Count III.

Therefore, it is recommended that the Administrative Complaint filed against M. Betty Murray be dismissed.

DONE and ORDERED this 16th day of October, 1980, in Tallahassee, Florida.

SHARYN L. SMITH, 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 16th day of October, 1980.

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Department of Professional

Regulation

2009 Apalachee Parkway

Tallahassee, Florida 32301

Richard W. Withers, Esquire Dunn, Smith & Withers

Post Office Drawer 2600 Daytona Beach, Florida 32015

C. B. Stafford

Board Executive Director Florida Real Estate Commission

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

Docket for Case No: 80-000788

Orders for Case No: 80-000788