STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2544

)

JOYCE A. CHANDLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on February 4, 1983, in Miami, Florida. The transcript was received on April 4, 1953, and the parties were allowed fifteen days thereafter to submit proposed findings of fact and conclusions of law. The Petitioner made its submission in a timely manner and these findings of fact and conclusions of law have been adopted. Nothing was received from the Respondent.

APPEARANCES

For Petitioner: Tina Hipple, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Joyce A. Chandler, in pro per

11231 Southwest 201st Street Miami, Florida 33189

By Administrative Complaint issued on July 21, 1982, the Respondent was charged with fraud, misrepresentation, breach of trust, and false pretenses in violation of Section 475.25(1)(b) Florida Statutes. Specifically, the Complaint charges that the Respondent gave a check for part of the purchase price of property to a title company which was dishonored by the Respondent's bank, causing the pending sale to be terminated.

In support of its Complaint, the Petitioner presented the testimony of five witnesses, namely, Dr. Harry Moskowitz who is the seller in the transaction which is the subject of this proceeding, his wife Mary Moskowitz, Eugene Lemlich who is attorney for Dr. Moskowitz, Carol Rebhan who listed the property for sale while employed at another broker's office, and Frank Ambrose who is the owner of the title company where the Respondent delivered her check. Ten exhibits were offered and received in evidence.

The Respondent testified in her own behalf, and presented three witnesses, including two character witnesses.

FINDINGS OF FACT

1. The Respondent, Joyce Chandler, prior to February 2, 1982, was a real estate salesman employed by Frank Ambrose, a real estate broker. On February 2, 1982, Chandler became licensed as a real estate broker with the State of Florida, and holds license number 0348072.

   
   

2. On February 8, 1982, the Respondent drafted an offer to purchase for herself property located at 811 Perrine Avenue in Miami, which belonged to Dr. Harry Moskowitz. The purchase price of the offer was $140,000. The Respondent took the offer to Carol Rebhan, the listing salesman of the property who was employed by Tauber-Manon Red Carpet Realty. The offer provided that an earnest money deposit of $100 would be placed in the escrow account of Roberta Fox, the Respondent's attorney, with an additional $5,000 to be deposited in Roberta Fox's escrow account within three working days of acceptance of the offer. The contract also called for a ten percent brokerage fee to be divided equally between the Respondent and Tauber-non Red Carpet Realty.

   
   

3. Carol Rebhan and the Respondent presented the offer to Eugene Lemlich, attorney for the seller Dr. Harry Moskowitz. After contacting Dr. Moskowitz in Texas, Lemlich accepted the offer on his behalf.

   
   

4. Three working days after the offer was accepted, Carol Rebhan called Roberta Fox's office repeatedly to determine whether the additional $5,000 deposit had been placed in escrow. Fox's office advised Rebhan that they did not have the $5,000 deposit. Rebhan confronted the Respondent with this information, and the Respondent stated that she was going to deposit the monies with Frank Ambrose at Landmark Title.

   
   

5. The next day, Rebhan contacted Landmark Title and was informed that they did not have the deposit in escrow.

   
   

6. On or about the 14th of February, 1982, Rebhan contacted Frank Ambrose personally and inquired about the $5,000 deposit. Ambrose told Rebhan that Landmark Title was in possession of the deposit. This was not true. Rebhan requested that Ambrose send her an escrow letter acknowledging possession of the

   $5,000 deposit. By letter dated February 18, 1982, Ambrose informed Rebhan that Landmark Title was in possession of the $5,000 deposit.

   
   

7. On February 18, 1982, the Respondent gave Ambrose a $5,000 check payable to Landmark Title Company. The check was for the additional deposit on the Moskowitz property and was post-dated to February 28, 1982. The check was deposited on February 19, 1982. On February 25, 1982, Ambrose was informed that there were insufficient funds in the Respondent's account to pay the check. Ambrose notified the Respondent that the check had been returned unpaid. She advised him that she was expecting some funds, and would make the check good within a few days. Ambrose took no action to notify the parties at this time.

   
   

8. In the first week of March, 1982, when Ambrose had still not received funds from the Respondent to cover the check, he contacted Carol Rebhan and informed her of the series of events which had occurred with regard to the deposit check. When Rebhan subsequently contacted the Respondent and told her that her $5,000 check had bounced, the Respondent seemed shocked at the news.

   
   

9. The Respondent has not made good the check returned to Landmark Title Company, nor has she placed the $5,000 deposit in escrow in accordance with the terms of the contract with Dr. Moskowitz.

10. Throughout the entire transaction, the Respondent misled the parties involved with regard to the location and existence of the earnest money deposit, she represented that she would replace the dishonored check or make it-good but has not done so, and she has thereby breached her contract to purchase the subject property from Dr. Moskowitz.

    
    

11. The Respondent contends that she informed all parties that the $5,000 check would be post-dated, but there is not sufficient evidence to support this assertion. Nevertheless, the post-dated check given by the Respondent has never been made good, so the Respondent's contention that she advised the parties at the outset that the $5,000 check would be post-dated, is irrelevant.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes.

    
    

13. Section 475.25(1)(b), Florida Statutes, authorizes the Board of Real Estate (now Florida Real Estate Commission) suspend or revoke a real estate license, or impose an administrative fine not exceeding $1,000 for each separate offense, if it finds that a licensee 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" or "has violated a duty imposed upon him by law" in a real estate transaction.

    
    

14. The Respondent's improper conduct in this transaction is not solely that she failed to comply with the terms of her purchase agreement by not placing the money into escrow as required, or that she then gave a post-dated check which was dishonored upon presentment to her bank. In addition, she misrepresented her intention with respect to making the check good. Considered in its entirety, the Respondent's conduct in connection with this transaction constitutes a violation of Section 475.25(1)(b) Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the license of the Respondent, Joyce A. Chandler, be

suspended for a period of one year.

THIS RECOMMENDED ORDER ENTERED this 9th day of May, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1983.

COPIES FURNISHED:

Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802

Joyce A. Chandler 11231 S.W. 201st Street Miami, Florida 33189

William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802

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

Orlando, Florida 32802

Frederick Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002544

Orders for Case No: 82-002544