STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1436

)

WILLIAM McCOY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Tampa, Florida on August 10, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: David P. Rankin, Esquire

Freeman & Lopez, P.A.

4600 W. Cypress, Suite 410

Tampa, Florida 33607

For Respondent: William McCoy appeared in his own behalf.

ISSUE PRESENTED

Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined for alleged violation of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint, dated March 22, 1982.

This proceeding commenced with the filing of an Administrative Complaint by Petitioner alleging that Respondent had acted as a broker in three separate real estate transactions in 1981 at a time when his real estate license had lapsed, and that he also had failed to place and maintain earnest money deposits in a trust account with reference to the same transactions. Respondent requested an administrative hearing under Section 120.57(1)(a), Florida Statutes, and the case was thereafter referred to the Division of Administrative Hearings for appointment of a Hearing Officer.

Petitioner appeared at the hearing unaccompanied by legal counsel. He was thereupon advised by the Hearing Officer as to his right to counsel and as to his rights in an administrative proceeding under Chapter 120, Florida Statutes. Respondent indicated that he understood his rights and elected to represent himself.

At the hearing, the parties submitted a Prehearing Stipulation of facts and exhibits. (Exhibit 1) In addition, the deposition of Respondent was received in evidence (Exhibit 2), and Respondent testified in his own behalf.

Petitioner's Proposed Recommended Order has been fully considered and those portions not adopted herein are considered to be either unnecessary or irrelevant, or unwarranted in fact or law.

FINDINGS OF FACT

The following findings of fact are contained in the Prehearing Stipulation:

1. The Respondent, WILLIAM McCOY, was a real estate broker licensed by the Florida Board of Real Estate prior to October 1, 1980.

   
   

2. On or about October 1 1980, the Respondent's real estate license lapsed due to the fact that Respondent failed to apply for a renewal of such license.

   
   

3. The Respondent did not renew such license until November 9, 1981.

   
   

4. The Respondent acted as a real estate broker on behalf of Clinton and Elizabeth Johnson in their efforts to purchase the property located at 3015 East Fern, Tampa, Florida. Such efforts led to the Johnsons' purchasing the property of [sic] July 29, 1981. A true and correct copy of the contract for sale which was executed by the parties to the sale is attached hereto and identified as Exhibit A. The signature which appears to be the signature of the Respondent is, in fact, the Respondent's signature.

   
   

5. The Respondent received payment of a commission for brokerage services on the sale of the East Fern Street property in the amount of One Thousand Dollars ($1,000.00) at closing on July 21, 1981.

   
   

6. The Respondent acted as broker on behalf of George B. Wilds and Jetie

   B. Wilds in their efforts to purchase a residence located on West Palm Street in Hillsborough County, Florida. A true and correct copy of the contract for sale executed by the parties to the Palm Street transaction is attached hereto and identified as Exhibit B. The signature which appears to be the Respondent's signature is in fact the Respondent's.

   
   

7. The Respondent received a commission for his efforts on behalf of Mr. and Mrs. Wilds in the above referenced real estate transaction at the closing which occurred on November 6, 1981.

   
   

8. The Respondent received an earnest money deposit check on the Palm Street property from the Wilds, a true and correct copy of which is attached hereto and identified as Exhibit C.

   
   

9. The copies of checks and checking account statements which are attached and identified as Exhibit D are true and correct copies of such records.

   
   

10. The trust account from which the records which constitute Exhibit D were the Respondent's only trust account during the relevant period.

    
    

    The following additional facts are found from the evidence presented at the hearing:

11. Respondent maintained both personal and escrow accounts at the Seminole Bank of Tampa. He admitted at the hearing that checks for personal purposes were drawn on his escrow account at various times, although the money expended was money belonging to him after the closing of real estate transactions. (Testimony of Respondent, Exhibits 1-2)

    
    

12. In the Wilds transaction, Respondent received a $100.00 binder which he placed in his escrow account. (Testimony of Respondent)

    
    

13. On September 28, 1981, Respondent executed an exclusive listing contract with Herbert H. Holley. However, he did not perform services under this agreement, or consider it binding because Holley did not obtain his wife's signature on the contract as had been requested by the Respondent. (Testimony of Respondent, Exhibit 2)

    
    

14. Respondent maintained at the hearing that he was unaware of the fact that his broker's license had lapsed because he had been in the process of obtaining a divorce from his wife and that she had taken his credentials at the time they had separated. He had not received a notice from Petitioner to renew his license because his wife was living at home at the time and there was a lot of mail that he had never received prior to their separation. He was aware of the need for periodic renewal of his license, but had not been aware that it had lapsed in 1980. (Testimony of Respondent, Exhibit 2)

    
    

    CONCLUSIONS OF LAW

    
    

15. Petitioner's Administrative Complaint alleges that Respondent violated subsection 475.42(1)(a), Florida Statutes, by operating as a broker or salesman without being the holder of a valid current license for such activities, and that therefore disciplinary action is authorized under subsection 475.25(1)(a), Florida Statutes. Respondent admitted that in at least two transactions during the period when his license had lapsed and was in an inactive status, he had acted as a broker. His stated reason that he was unaware of the status of his license cannot serve to excuse the violations of subsection 475.42(1)(a) which prohibits anyone from so operating without being the holder of a valid and current license.

    
    

16. Respondent also is charged with failing to place and maintain an earnest money deposit in a trust account in violation of subsection 475.25(1)(k), Florida Statutes, in the real estate transaction in question. Petitioner has failed to prove this charge. Its theory that, by using his escrow account for both trust and personal funds he changed the nature of the account, is not tenable. The account remained an escrow account and, even though Respondent should not have used the account for personal transactions, he was not charged with such an offense, but only with failure to place and maintain earnest money deposits therein. Such was not shown by the evidence at the hearing.

    
    

17. It is concluded that, since Respondent's actions in conducting real estate transactions during the time when his license was in an inactive status were due to simple negligence, the penalty of an administrative fine of $250 should be adequate.

RECOMMENDATION

That Petitioner impose an administrative fine of $250 on Respondent, William McCoy, pursuant to subsection 475.25(1)(a), Florida Statutes, for violation of subsection 475.42(1)(a), Florida Statutes.

DONE and ENTERED this 14 day of September, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 14th day of September, 1982.

COPIES FURNISHED:

David P. Rankin, Esquire Freeman & Lopez, P.A.

4600 West Cypress (Suite 410)

Tampa, Florida 33607

William McCoy

5725 North 40th Street Tampa, Florida 33610

Mr. C. B. Stafford Executive Director

Florida Real Estate Commission

P. O. Box 1900

Orlando, Florida 32801

Fred Wilsen, Esquire Department of Professional Regulation, Legal Services

400 W. Robinson Street

P. O. Box 1900

Orlando, Florida 32801

Docket for Case No: 82-001436

Orders for Case No: 82-001436