STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-1765

)

CARL A. PERRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on October 30, 1981, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: William R. Scherer, Esquire

Fort Lauderdale, Florida

For Respondent: Respondent appeared on his own behalf.

Petitioner filed an Administrative Complaint against the Respondent herein, and Respondent timely requested a formal hearing regarding the allegations in that Complaint. Accordingly, the issue for determination is whether Respondent's license as a real estate salesman should be suspended, revoked, or otherwise disciplined.

Lynn C. Burdeshaw testified on behalf of the Petitioner; and Respondent, Carl A. Perry, testified on his own behalf. Additionally, Petitioner's Exhibits

1 and 2 were admitted in evidence.

Petitioner has submitted a posthearing proposed order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Respondent, Carl A. Perry, is licensed by Petitioner as a real estate salesman. At all times material hereto, he was employed by F.E.C. Real Estate Corporation.

2. On September 23, 1979, Respondent negotiated and procured a contract whereby Ronald Joeckel and his wife were to buy and Lynn C. Burdeshaw and his wife were to sell certain real property owned by the Burdeshaws and located in Pompano Beach, Florida. In order to secure that Deposit Receipt Contract, the Joeckels gave Respondent on that date a $100 deposit.

   
   

3. The Deposit Receipt Contract required an additional deposit of $1,900, and on October 11, 1979, Respondent received a $1,900 check from the Joeckels. The check was dated October 20, 1979. Respondent did not give this check to his employer until November 23, 1979.

   
   

4. When F.E.C. Real Estate Corporation deposited the check for $1,900 in its trust account, the check was dishonored by the bank upon which it was drawn for the reason that the Joeckels did not have sufficient funds to cover the check.

   
   

5. Instead of advising the Burdeshaws that the Joeckels' $1,900 check was dishonored, Respondent contacted Ronald Joeckel on several occasions. Joeckel each time advised Respondent that he would cover the check, and Respondent relied upon that information and believed that the Joeckels would fulfill their contract for the purchase of the Burdeshaws' property. Respondent was in error; the Joeckels breached the Deposit Receipt Contract, and the Burdeshaws sold their property to another purchaser soon thereafter.

   
   

6. Respondent's employer, F.E.C. Real Estate Corporation, was not the listing broker for the Burdeshaws' property. Shell Coast Realty held that listing.

   
   

7. Other than this Administrative Complaint, Respondent has had no other complaint made against him.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Administrative Complaint filed against Respondent charges him with violating Section 475.25(1)(b) and (k), Florida Statutes (1979). Subsection (k) authorizes Petitioner to take disciplinary action against a licensee who has

   
   

   [F]ailed, if a salesman, to immediately place with his registered employer any money, fund, deposit, check, or draft entrusted to him by any person dealing with him as agent of his registered employer. . .

   
   

   Respondent admits he failed to give the $1,900 check to his employer for well over a month after receipt. Although Petitioner presented no evidence to show the check might have been honored if given to F.E.C. Real Estate Corporation earlier, Respondent has clearly violated subsection (k) by failing to give the

   $1,900 check to his employer immediately upon receipt.

   
   

9. Subsection (b) of Section 475.25(1), Florida Statutes, provides, in pertinent part, that Petitioner may discipline a real estate salesman who has

   
   

   Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of

   trust in any business transaction in this state. . . .It shall be immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss. . .

   
   

   Respondent admits his negligence and poor judgment in failing to advise the Burdeshaws that the $1,900 check was postdated and dishonored. He explains that he was trying to help both parties involved in the transaction and now realizes that such a deed cannot be done. Perhaps it is because Respondent admits his conduct as charged in the Administrative Complaint that Petitioner did not present any evidence concerning the obligation of Respondent to advise the Burdeshaws as to the status of the deposit monies as opposed to the obligation of Respondent's employer or of the listing broker. Additionally, Petitioner presented no factual basis to establish that Respondent had a principal/agent relationship or fiduciary relationship with the Burdeshaws rather than with the Joeckels. Rather, Petitioner's evidence primarily concerned the $950 the Burdeshaws claim they were damaged by the failure of the Joeckels to consummate their purchase of the Burdeshaws' home, although the statute specifically declares evidence of damage, or no damage, to "be immaterial to the guilt of the licensee. Section 475.25(1)(b), Florida Statutes (1979).

   
   

10. Petitioner, in its posthearing Proposed Order, suggests the proper penalty to be imposed upon Respondent would be to reprimand him for his behavior regarding the Burdeshaw/Joeckel transaction, to admonish him to abstain from any actions of that type in the future, and to place him on probation for a period not to exceed one year. The suggestion of the Department of Professional Regulation is appropriate to the facts of this case and is hereby adopted as the undersigned's recommendation as to the disciplinary action to be taken.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED THAT:

A final order be entered reprimanding Respondent, Carl A. Perry, for his conduct, admonishing Respondent, Carl A. Perry, to abstain from similar conduct, and placing him on probation for a period of one year.

RECOMMENDED this 21st day of December, 1981, in Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1981.

COPIES FURNISHED:

William R. Scherer, Esquire Grimmett, Conrad, Scherer

& James, P.A.

707 Southwest. Third Avenue Post Office Box 14723

Fort Lauderdale, Florida 33302

Mr. Carl A. Perry

c/o F.E.C. Real Estate Corporation 4634 North Federal Highway Lighthouse Point, Florida 33064

Mr. Samuel R. Shorstein Secretary, Department of

Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Carlos B. Stafford Executive Director Board of Real Estate

Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs CASE NO. DOAH 81-1765

DPR 0000962

CARL A. PERRY,

Respondent.

/

FINAL ORDER

This cause came before the Florida Real Estate Commission upon the Petitioner's Motion for Final Order. A formal hearing was held on October 3O, 1981, which resulted in a Recommended Order from the Division of Administrative Hearings, Linda M. Rigot, Hearing Officer, on December 21, 1981.

Upon examining the Recommended Order, the pleadings and the record herein, it is ORDERED:

1. That the Recommended Order is hereby adopted as to all Findings of Fact;

   
   

2. That the Recommended Order is hereby adopted as to the Conclusions of Law contained in numbered paragraph one (1) and two (2) of that part of the Recommended Order. The Conclusions of Law contained in numbered paragraph three (3) regarding the penalty to be imposed are hereby rejected;

   
   

3. That the Petitioner's Exceptions to the Recommended Order are hereby adopted to the extent that they are not inconsistent with this Order;

   
   

4. That the Recommended Order and Exceptions thereto, copies of which are attached to this Order, are incorporated by reference and made a part of this Order to the extent that they are adopted.

Based of the foregoing, it is ORDERED that the license of the Respondent CARL A. PERRY is hereby suspended for a period of 60 days, which penalty shall be suspended. This Order shall be effective thirty days from the date that it is filed with the Clerk of the Department of Professional Regulation.

Done and Ordered this 17th day of February, 1982.

SONNY WRIGHT, CHAIRMAN

FLORIDA REAL ESTATE COMMISSION

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular U.S. Mail to Mr. Carl A. Perry, e/o F.E.C. Real Estate Corporation, 4634 North Federal Highway, Lighthouse Point, Florida 33064, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301, Counsel for Respondent, Mr. William R. Scherer, Esquire, Grimmett, Conrad, Scherer & James, P.A., 707 Southeast Third Avenue, Fort Lauderdale, Florida 33302, and Counsel for Petitioner, Mr.

Frederick Wilsen, Assistant General Counsel, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301 9th day of March 1982.

C. B. STAFFORD

Docket for Case No: 81-001765

Orders for Case No: 81-001765