STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0298

)

PATRICIA ANN CRICK )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, Hearing Officer, on July 20, 1980, in Sarasota, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: James R. Mitchell, Esquire

Post Office Box 1900 Orlando, Florida 32801

For Respondent: No appearance.

By an Administrative Complaint, the Department of Professional Regulation, Division of Real Estate, has charged that the Respondent, Patricia Ann Crick, violated Subsection 075.25(1)(b), Florida Statutes, and Subsection 075.25(1)(g), Florida Statutes. Specifically, it is charged that the Respondent, while licensed as a real estate broker in the State of Kentucky, failed to account for or remit within a reasonable time, $870 belonging to a purchaser of real estate, which funds had come into the hands of the Respondent. For this reason, the Kentucky Real Estate Commission ultimately revoked the Respondent's Kentucky Real Estate Broker's License and fined her $500. The Department now seeks to discipline the Respondent's real estate license predicated on the disciplinary action taken against the Respondent in Kentucky. The Respondent disputed the charges and requested a Section 120.57(1) hearing. Thereafter, formal hearing was set for July 20, 1980, in Sarasota, Florida.

At the hearing, the Petitioner presented Exhibits 1 and 2 which were received into evidence. The Respondent failed to appear and no witnesses or exhibits were presented or received on behalf of the Respondent.

The issue to be resolved concerns whether the Respondent's real estate salesman's licensure should be disciplined for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction, as well as for having her real estate broker's license revoked by the Real Estate Licensing Agency of the State of Kentucky.

FINDINGS OF FACT

1. At all times pertinent to the charges at bar, the Respondent was a licensed real estate salesman in the State of Florida, holding license number 0379661. Prior to being licensed in Florida, the Respondent was a licensed broker in Kentucky between 1979 and October 12, 1983. On October 12, 1983, by order of the Kentucky Real Estate Commission, her license in that state was revoked.

   
   

2. Sometime in July, 1981, one Katherine E. Linton executed a contract to purchase real estate in the State of Kentucky. Respondent represented Ms. Linton as a real estate broker regarding that contract. Pursuant to the terms of that contract, Ms. Linton gave to the Respondent $1,000 as a deposit or "earnest money." The deposit was to be applied to the purchase price upon passing of title at the closing. Immediately prior to the scheduled time for the closing on the real estate (a condominium), the Respondent hand-carried a check for $130, instead of $1,000, to the closing. Because of the Respondent's failure to deliver from her custody the entire $1,000 contract deposit, for application to the purchase price, Ms. Linton, the Respondent's client, had to pay $870 extra at the closing which she was not required to do under the terms of the contract.

   
   

3. The Respondent was owed no commission under that contract. Although the Respondent prepared an addendum to the contract to provide for a two per cent commission payable to her and her firm, that commission was to come from the corporate seller and not from her client, the buyer, Ms. Linton. In any event, the addendum was never presented to nor executed by the purchaser or anyone else, other than Respondent. Thus, no obligation to pay a two per cent commission to Respondent or her firm ever arose. In any event, although Ms. Crick maintained, at the Kentucky Real Estate Commission proceeding, that she acted under the honest belief she was owed a two per cent commission from the corporate seller of the property with regard to this transaction, she was proven not to have been entitled to such a commission and to have intentionally converted $870 of the $1,000 deposit to her personal use. It is undisputed in this proceeding that the Respondent failed to deliver the $870 contract deposit money at the time of the closing to apply to the purchase price and retained those funds in an escrow account of Pat Crick and Associates for a week or so after closing, after which time she closed that account and intentionally converted the funds to her personal use, knowing she had no contractual right to any commission derived from those funds.

   
   

4. After Ms. Linton filed a complaint with the Kentucky Real Estate Commission against the Respondent for failure to deliver the entire deposit of

   $1,000 at the closing, a formal proceeding was had against the Respondent by that body. The Kentucky Real Estate Commission found, based upon testimony heard and evidence received, that the Respondent's retention of Ms. Linton's funds was both intentional and with "guilty knowledge." The Respondent converted the funds to her own use for personal reasons, without justification. The Commission thereupon ordered the revocation of the Respondent's Kentucky Real Estate Broker's License and fined her the sum of $500. The actions of the Kentucky Real Estate Commission were upheld on appeal by the Circuit Court for Jefferson County, Kentucky, on April 9, 1900. That case is now final.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1983).

   
   

6. Sections 475.25(1)(b) and 475.25(1)(g), Florida Statutes, authorize the Florida Real Estate Commission to 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 Under (g) of the above-cited section, a license may be suspended or revoked, or a fine imposed if a broker's license has been revoked, suspended or otherwise proceeded against by a real estate licensing agency or another state. This complaint charges the Respondent, in two counts, with violating the above sections by failing to account for or remit to the proper recipient $870 belonging to a purchaser whom she represented, and intentionally converting those funds to her own use, as well as for having her real estate broker's license revoked by the Kentucky Real Estate Commission for that breach of trust.

   
   

7. There is no question, given the evidence presented in this proceeding, that the Respondent, while licensed as a real estate broker in Kentucky, did indeed fail to deliver or remit within a reasonable time $870 which had come into her hands which did not belong to her. The evidence is undisputed that as a result of this, the Respondent's broker's license was ultimately revoked by the Kentucky Real Estate Commission for intentionally converting these funds to her own use to the detriment of her client. The Respondent, by her knowing and willful failure to remit or deliver the $870 within a reasonable time limit is guilty of fraud, misrepresentation, false promises, false pretenses, dishonest dealing by trick, scheme or device, and breach of a trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes. The concomitant revocation of her real estate broker's license in the State of Kentucky for this conduct renders her guilty also of a violation of Subsection 475.25(1)(g), Florida Statutes, by the fact of her having her broker's license revoked or otherwise proceeded against by the licensing agency of another state.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Respondent, Patricia Ann Crick, have her license as a real estate salesman revoked.

DONE and ENTERED this 15th day of November, 1984, in Tallahassee, Florida.

P. MICHAEL RUFF 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 16th day of November, 1984.

COPIES FURNISHED:

James R. Mitchell, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32801

Ms. Patricia Ann Crick 1155 Lakehouse Circle

Sarasota, Florida 33581

Harold Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32801

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-000298

Orders for Case No: 84-000298