STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, (Florida Real )

Estate Commission), )

)

Petitioner, )

)

vs. ) CASE NO.: 82-2343

)

GLADYS A. GIBBONS and )

DOROTHY M. COMOLLI, )

)

Respondents. )

)

RECOMMENDED ORDER

This case was heard before the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, on July 28, 1983, in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: William M. Furlow, Esquire

Department of Professional Regulation - Legal Section

400 West Robinson Street Orlando, Florida 32801

For Respondents: Gladys A. Gibbons, pro se

6439 Central Avenue

St. Petersburg, Florida 33710

Dorothy M. Comolli, pro se 5031 Jasmine Circle North

St. Petersburg, Florida 33714 BACKGROUND

These proceedings began on May 27, 1982 when the Secretary of the Department of Professional Regulation filed an Administrative Complaint against the Respondent alleging that they had violated Section 475.25(1)(b), Florida Statutes by their conduct in a real estate transaction between Ms. Dorothy Hawks and Mrs. Hortense M. Willoughby. Respondents requested a formal administrative hearing and the case was forwarded to the Division of Administrative Hearings on August 20, 1982 for the assignment of a Hearing Officer and the scheduling of a final hearing. The final hearing was initially scheduled for November 17, 1982, but due to several continuances was net held until the date indicated above.

At the final hearing Petitioner presented the testimony of witnesses and offered Exhibits 1, 2, 3, 4 and 5, which were received into evidence.

Respondents offered the testimony of witnesses and offered Exhibits A, B and C,

which were received into evidence. During the course of the hearing Petitioner was allowed to amend the Administrative Complaint in paragraph 5 to reflect that Dorothy Hawks' residence was located at 2349 Third Avenue North St. Petersburg, Florida. Also during the course of the final hearing the parties stipulated that Ms. Hawks had no notice of the promissory note in issue here until after the default of Ms. Willoughby which occurred in the middle of November 1981.

Subsequent to the final hearing Petitioner submitted a Proposed Recommended Order and Respondent submitted correspondence in the nature of a closing argument. The proposed findings of fact contained in both documents have been given careful consideration here. To the extent that the proposed findings are not reflected in this Order, they are rejected as being either not supported by the weight of credible admissible evidence or as being irrelevant to the issues determined here. 1/

FINDINGS OF FACT

1. Respondent Gladys A. Gibbons is licensed as a real estate broker by the Florida Real Estate Commission under license number 0031192 and has been so licensed at all times material to this case. During such time she was employed as the broker for Gregoire-Gibbons, Inc. Respondent Dorothy M. Comolli is licensed as a real estate salesman under license number 00336387 issued by the Florida Real Estate Commission and has been so licensed at all times material to this case. During the period in question here she was employed by Gregoire- Gibbons, Inc. and was supervised by Respondent Gladys A. Gibbons.

   
   

2. On March 3, 1981 Ms. Dorothy Hawks listed her residential property located at 2349 Third Avenue North, St. Petersburg, Florida, for sale with Mr. Gerald O'Conner, a real estate salesman employed by Humpe Roney, Inc., in St. Petersburg, Florida.

   
   

3. On July 1, 1981 Respondent Dorothy Comolli called Mr. O'Conner to tell him that she had a contract on Ms. Hawks' property. The offer which Ms. Comolli presented on behalf of Ms. Hortense Willoughby was an option to purchase with a lease. When the offer was presented to Ms. Hawks she demurred about the option and counteroffered with a lease and a contract for sale which provided for closing within one year.

   
   

4. On a document entitled Real Estate Purchase and Sale Agreement dated July 1, 1981 the parties negotiated the terms of the property sale. Their handwritten amendments to the form contract were later incorporated into a real estate purchase and sale agreement dated July 14, 1981 which was executed by Ms. Willoughby but never signed by Ms. Hawks. With respect to the rental portion of the transaction the first contract was a receipt for deposit and agreement to lease dated July 19, 1981 presented through Ms. Comolli with a promissory note in the amount of $500 attached as a security deposit for the last month's rent on Ms. Hawks' house. The text of the receipt recited that the lease was for a period of one year with monthly payments of $500 a month to begin on August 15, 1981. It further provided for $200 "security" plus $500 for the last month's rent in a three-month promissory note. Both the note and the receipt for deposit and agreement to lease were presented by Ms. Comolli to Carol Denker at Humpe Roney, Inc. Ms. Denker had taken over Ms. Hawks' account due to the vacation of Mr. O'Connor. In addition to these documents Ms. Comolli gave Ms. Denker $200 as an earnest money deposit on the sale of the house. Ms. Denker in turn gave Ms. Comolli a receipt for the $200 but later returned the $200 to Ms. Comolli as it is customary for the agent of the purchaser to hold the deposit.

5. The form of the promissory note and the receipt for deposit and agreement to lease were not acceptable to Ms. Denker. She had been instructed that promissory notes witnessed by a realtor were a bad business practice and were not acceptable to Humpe Roney, Inc. Ms. Denker therefore gave Ms. Comolli a promissory note form acceptable to Humpe Roney for Ms. Willoughby to execute. Ms. Denker then attempted to contact Ms. Hawks to let her know about the promissory note but was not able to reach her.

   
   

6. On July 21, 1981 Humpe Roney prepared on its forms, a contract for sale of real estate and a receipt for deposit and contract for lease. The record is not clear why Humpe Roney wanted the contracts rewritten. After they had been redrawn Ms. Comolli picked them up, had Ms. Willoughby sign them, and returned them to Humpe Roney for Ms. Hawks' signature. These two documents which were executed by Ms. Willoughby and Ms. Hawks finally constituted the agreement between the two parties. Neither document recites that the last month's rent would be paid by Ms. Willoughby in the form of a promissory note. The record is not clear why the final contracts as redrawn by Humpe Roney did not reflect the

   $500 promissory note. The deletion of any mention of the note was not at the request of either Respondent and does not appear to have been done intentionally by Humpe Roney.

   
   

7. At no time was Ms. Hawks aware that a promissory note would be provided instead of cash for the last month's rent.

   
   

8. Ms. Willoughby moved into the house on August 4, 1981. She stayed there for the months of August, September and October and part of November when she defaulted on the promissory note which was due on November 15, 1981. Upon her default she was evicted from the house. She is still in default on the promissory note and has no funds with which to pay it.

   
   

9. When Ms. Hawks made a demand upon Gregoire-Gibbons for the $200 earnest money deposit plus the $500 last month's rent she received $200 and the $500 note. 2/

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 455.225(4), Florida Statutes (1983)

    
    

11. The factual gravamen of the Administrative Complaint here is that Respondent Dorothy Comolli accepted a $500 promissory note from Ms. Willoughby instead of cash for the last month's rent and did not tell Ms. Hawks or the listing realtor that no cash payment of the $500 amount had been received. The foregoing is alleged to violate Section 475.25(1)(b), Florida Statutes (1981).

    
    

12. The Administrative Complaint also alleges that Respondents never delivered the $200 earnest money deposit to Ms. Hawks after her demand for it. While the Administrative Complaint does not explicitly allege the statutory citation for the portion of the real estate code which would be violated by those circumstances, the Complaint does replicate the terminology from Section 475.25(1)(d), Florida Statutes (1981).

    
    

13. The facts proven at the final hearing do not fit the allegations of the Administrative Complaint. The listing realtor, Humpe Roney, representing Ms. Hawks knew on July 19, 1981 that Ms. Willoughby intended to give a promissory note in lieu of the $500 rent security. It was Ms. Denker at Humpe

    Roney who provided the form on which the promissory note was actually drawn. While it is true that Ms. Hawks did not know of the note until it was too late, Ms. Denker testified that she tried to reach Ms. Hawks to inform her about the note, but could not contact her. Neither Respondent contacted Ms. Hawks because she was ill and could not receive visitors. Ms. Comolli therefore dealt with Humpe Roney, who as the agent of Ms. Hawks, had notice of the promissory note six days before Ms. Hawks agreed to the final contracts. There has been no violation of Section 475.25(1)(b), Florida Statutes (1981).

    
    

14. In their Prehearing Stipulation the parties agreed that the $200 earnest money deposit held by Gregoire-Gibbons has been delivered to Ms. Hawks. Furthermore there is no proof in the record that the delivery of that $200 was delayed or otherwise held up contrary to the terms of the agreement between the parties. There is therefore no violation of Section 475.25(1)(d), Florida Statutes (1981).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint filed against Gladys A. Gibbons and Dorothy M. Comolli.

DONE and RECOMMENDED this 9th day of February, 1984, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

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 9th day of February, 1984.

ENDNOTES

1/ Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v. Orlando Utilities Commissin, 436

So.2d 383 (Fla. 5th DCA 1983).

2/ This finding is based upon the parties' Prehearing Stipulation. At the final hearing Kevin Hawks, Ms. Hawks' son, testified to the contrary but his testimony is rejected in light of the Stipulation.

COPIES FURNISHED:

Gladys A. Gibbons 6439 Central Avenue

St. Petersburg, Florida 33710

Dorothy M. Comolli

5031 Jasmine Circle North

St. Petersburg, Florida 33714

William M. Furlow, Esquire Department of Professional Regulation - Legal Section

400 West Robinson Street Orlando, Florida 32801

Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 82-002343

Orders for Case No: 82-002343