STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3301

) CLUETT REALTY, INC., ERNEST H. ) CLUETT II & WALTER V. HORN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a public hearing in the above- styled case on February 22, 1984, at Fort Myers, Florida.

APPEARANCES

For Petitioner: Fred Langford, Esquire

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

For Respondents, Herbert A. Fried, Esquire Cluett and 1625 Hendry Street, Suite 103 Cluett Realty: Fort Myers, Florida 33901

Horn: No appearance.

The issue for determination at the final hearing was whether the licenses of the Respondents should be suspended, revoked or otherwise disciplined for allegedly failing to account, deliver and maintain a deposit of $2,000.

At the final hearing Mary Ann Knopic, the complainant, and Harold Clark, an investigator with the Department of Professional Regulation, testified for the petitioner. Petitioner's Exhibits 1 through 3 were offered and admitted into evidence. Jane Soviero, the seller of the property, and Ernest Cluett and Diary Cluett testified for the Respondents. Respondents' Exhibits 1 through 4 were offered and admitted into evidence.

FINDINGS OF FACT

1. The Respondent, Cluett Realty, Inc., is a licensed corporate real estate broker having been issued license number 0216798 and whose last known address is 4720 Palm Beach Boulevard, Fort Myers, Florida.

2. The Respondent, Ernest H. Cluett II, is a licensed real estate broker having been issued license number 0191613 and at all material times was employed as a licensed real estate broker by Cluett Realty, Inc.

   
   

3. In November, 1981, Mary Ann Knopic was shown a home in Cape Coral by the Respondents. She offered the owners $92,500 for the home with a $500.00 earnest money deposit. When the home was sold to another buyer, the Respondents and Knopic agreed that the Respondents would retain the $500.00 and attempt to find another home for the complainant.

   
   

4. In December, 1981, the Respondents showed Knopic the Soviero home and Knopic made an offer on the home and secured the offer with an additional $1,500 security deposit.

   
   

5. In late February, 1982, the complainant informed the Respondents that she would not close on the Soviero home. The complainant decided not to close because the cost of renovating the home exceeded the original estimate. Under these circumstances, the complainant was willing to lose her $2,000 deposit rather than spend $6,000 to renovate the Soviero home.

   
   

6. On June 8, 1982, after the complainant agreed to the February disbursement, she sent the Respondents a letter demanding either a copy of the contract which amended the earnest money amount or a refund of her $1,500.

   
   

7. Walter V. Horn, a Respondent, was not properly served and at final hearing the petitioner agreed that he was not a proper party to this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. By three-count complaint dated May 18, 1983, the Respondents are charged in Count I with violating Sections 475.25(1)(d)1 475.25(1)(e), 475.25(1)(k), Florida Statutes, and Rule 21V-14.13, Florida Administrative Code, by allegedly failing to account, deliver and maintain monies placed on deposit by them with persons dealing with them as brokers until disbursement thereof was properly authorized; in Count II, with violating Section 475.25(1)(b), Florida Statutes, by committing fraud, breach of trust, dishonest dealing, culpable negligence or breach of trust by disbursing a deposit following a demand; and in Count III, with violating Section A75.25(1)(b) Florida Statutes, by failing to notify the complainant following such disbursal.

   
   

10. The Petitioner failed to establish by clear and convincing evidence that the complainant made a demand on the Respondents for the return of all or part of her $2,000 deposit. To the contrary, the weight of credible evidence supports the Respondents' position that the complainant decided to $2,000 rather than close on the Soviero home. Under these circumstances, the Respondent were justified in relying on the complainants' oral and written statements that she did not intend to close on the home because of the renovation costs, and disbursing the $2,000 between the sellers and Cluett Realty. Moreover, the complainant's June 4, 1982, letter, which is inconsistent with the February 10, 1902, letter does not contain an unambiguous demand for the return of the deposit. Rather, this letter requested either a copy of the amended contract or

$1,500.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a final order be entered dismissing the Administrative Complaint filed against the Respondents, Cluett Realty, Inc., Ernest H. Cluett II and Walter V. Born.

DONE AND ENTERED this 11th day of July, 1984, at Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1984.

COPIES FURNISHED:

Fred Langford, Esquire Department of Professional Regulation

Legal Section

Post Office Box 1900 Orlando, Florida

Herbert A. Fried, Esquire 1625 Hendry Street, Suite 103 Fort Myers, Florida 33901

Mr. Walter V. Horn

4732 Dee Prado Boulevard Cape Coral, Florida 33904

Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation

post Office Box 1900 Orlando, Florida 32802

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-003301

Orders for Case No: 83-003301