STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-813

) DONNA MIGONE, DONALD E. MORTON, ) and PEDRO REALTY, INC., )

)

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 case on September 30, 1982, in Miami, Florida. A transcript of the proceedings was received by this Division on October 20, 1982.

APPEARANCES

For Petitioner: Theodore J. Silver, Esquire

Silver, Levy & Hershoff, P.A. 9445 Bird Road

Miami, Florida 33165

For Respondents, 1/ David Popper, Esquire Donna Migone Suite 1100, New World Tower

and Pedro Realty: 100 Biscayne Boulevard, North

Miami, Florida 33132 ISSUE

The issue posed for decision herein is whether or not the Respondents, Donna Migone and Pedro Realty, Inc., based on conduct set forth hereinafter in detail, failed to account for or deliver escrow funds received in a real estate transaction in violation of Subsection 475.25(1)(d), Florida Statutes (1981).

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found.

1. By its Administrative Complaint filed March 1, 1982, the Petitioner, Department of Professional Regulation, Florida Real Estate Commission, seeks to suspend, revoke or take other disciplinary action against Donna Migone and Pedro

   Realty, Inc., as licensed real estate salesperson/corporation, respectively, who have been issued License No. 0304648. 2/

   
   

2. On August 8, 1980, Mrs. Mary Perez, c/o Douglas Spring, Esquire, 15211

   N.W. 60th Avenue, Miami Lakes, Florida 33014, entered into a listing agreement with Respondents Migone and Pedro Realty, Inc., for the sale of Mrs. Perez' property located at 414 West 67th Street, Hialeah, Florida. The asking purchase price of the subject property was $69,900.

   
   

3. On August 18, 1980, Mrs. Perez was presented with a contract for the sale of her residential property by Donald E. Morton, a licensed real estate broker employed by International Realty Association and Investment Corp. and Respondent Donna Migone, the listing salesperson for Respondent, Pedro Realty, Inc. The contract/offer presented was for the sum of $66,000.

   
   

4. Mrs. Perez reviewed the contract/offer presented by Respondent Migone and thereafter Respondent Migone filled out a form entitled "Approximate Seller Expenses" to explain to Mrs. Perez how the proceeds of the sale would be disbursed. During this explanation, Respondent Migone computed the commission due herself and Donald Morton both on the basis of a sales price of $56,000 and

   $66,000 pursuant to the contract/offer presented. In this regard, Mrs. Perez agreed to hold a $10,000 second mortgage to assist the purchasers in securing the financing to purchase the property.

   
   

5. During that time, August 18, 1980, the purchasers gave Donald E. Morton a $4,000 purchase-money deposit for the subject property to be held in escrow until closing.

   
   

6. On December 5, 1980, the closing occurred in a typical manner whereby the seller and the buyer separately delivered their respective documents and monies to the Amerifirst Federal Savings & Loan, 900 N.E. 125th Street, Suite 200, North Miami, Florida. There was no formal gathering of the parties and Respondent Migone and Donald E. Morton were notified on or about December 10, 1980, by Mrs. Perez' attorney, Douglas Spring, that the closing had occurred. Respondent Migone and Donald E. Morton computed the commission on the basis of six percent (6 percent) of the full purchase price of $66,000. This amounted to

   $3,960 as computed by Respondent Migone on one of the two net sheets presented to Mrs. Perez. On December 18, 1980, Respondent Migone and Donald E. Morton were paid $1,980 each from the escrow fund, and Donald E. Morton sent Mrs. Perez a check for $40.00 representing the balance due her from the escrow deposit fund.

   
   

7. Petitioner contends that the commission should have been computed by Respondents Migone and Pedro Realty, Inc., on the basis of six percent (6 percent) of the amount of $56,000 or $3,360 as reflected on one of the net sheets presented to Mrs. Perez by Respondent Migone.

   
   

8. On this point of dispute, evidence reveals that when the contract/offer was presented to Mrs. Perez, Mrs. Perez reviewed the offer and at that time was presented with two forms filled out by Respondent Migone entitled "Approximate Seller Expenses" to reflect how the proceeds of sale would be disbursed. During this discussion, Mrs. Perez agreed to the $66,000 offer and agreed to hold a

   $10,000 second mortgage to assist the purchasers in completing the real estate transaction. The testimony reflects that Mrs. Perez was interested in receiving a monthly income check and the income from the $10,000 mortgage was a means whereby this could be achieved. During the course of these discussions, one of the forms computed by Respondent Migone for the commissions reflected that

   commissions would be computed based on $56,000 whereas another form was computed reflecting the total purchase of $66,000.

   
   

9. A careful reading of the testimony of Mrs. Perez reflects that she understood that she would be paying the commission based on the total purchase price of $66,000 and not based on the $56,00 as the Petitioner contends. Mrs. Perez indicated that she knew that she was selling the property for $66,000 and the six percent (6 percent) commission (on that basis) was no surprise to her. (TR 33, 40, 41, 57, 65, 72, and Respondent's Composite Exhibit B). Further, Respondent Migone credibly testified that there was a great deal of discussion of the $56,000 versus the $66,000 and the manner in which the $10,000 second mortgage would be written up; however, there was no evidence presented to reflect that no commission would be paid on the $10,000 second mortgage as contended by the Petitioner other than the "net sheet" computed by Migone reflecting the commission computed on six percent (6 percent) of $56,000. Further, Respondent Migone testified that Mrs. Perez never discussed paying a commission only on $56,000 versus the $66,000 as was computed and deducted by the Respondents. A review of the documentary evidence indicates that there are no variations of the six percent (6 percent) commission of the total sales price. (TR 66)

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120, Florida Statutes.

    
    

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

    
    

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

    
    

13. The Respondents, as licensees under the Florida Real Estate Licensing Law, are subject to the guides of Chapter 475, Florida Statutes. Insufficient evidence was offered to establish that the Respondent, Donna Migone, violated Subsection 475.25(1)(b) or (d), Florida Statutes (1981), as alleged.

    
    

14. Insufficient evidence was offered to establish that the Respondent, Pedro Realty, Inc., aided, condoned or otherwise assisted its employees to engage in acts and/or conduct in violation of Subsection 475.25(1)(b) or (d) Florida Statutes (1981), as alleged.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint against the Respondents, Pedro Realty, Inc., and Donna Migone, be DISMISSED in its entirety.

RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 24th day of January, 1983.

ENDNOTES

1/ The complaint allegations against Donald E. Morton were dismissed by the Commission on May 19, 1982.

2/ Counsel for the parties stipulated that Respondent Migone and Pedro Realty, Inc., were, during times material herein, currently licensed under the Florida Real Estate Licensing Law.

COPIES FURNISHED:

Theodore J. Silver, Esquire Silver, Levy & Hershoff, P.A. 9445 Bird Road

Miami, Florida 33165

David Popper, Esquire

Suite 1100, New World Tower

100 Biscayne Boulevard, North Miami, Florida 33132

Mr. C. B. Stafford Executive Director

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

William M. Furlow, Esquire Department of Professional

Regulation - Legal Section Post Office Box 1900

Orlando, Florida 32802

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000813

Orders for Case No: 82-000813