STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0400

)

JOYCE A. CHANDLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on February 5, 1985, in Miami, Florida. The following appearances were entered:

FOR PETITIONER: James R. Mitchell, Esquire

Staff Attorney

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

FOR RESPONDENT: No Appearance

The issue presented at the final hearing was whether the Respondent's real estate broker's license should be disciplined for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, and breach of trust in a business transaction.

PROCEDURAL BACKGROUND

By Administrative Complaint filed December 13, 1984, the Petitioner Department of Professional Regulation, charged that the Respondent Joyce A. Chandler, violated Susection 475.25(1)(b), Florida Statutes.

More specifically, the Petitioner alleged that the Respondent entered into a contract with Gerald and Mary Ann Jennings in February of 1983 to purchase their house located at 15413 S.W. 105th Avenue, Miami, Florida. The contract called for a closing no later than August 13, 1983. In the interim the Jennings had planned to move back to West Virginia and the Respondent was to obtain tenants for the house and make the mortgage payments. Prior to the Jennings leaving for West Virginia in the latter part of February 1983, Respondent had the Jennings sign a blank Warranty Deed which document was represented to the Jennings to be merely a Power of Attorney to allow her (the Respondent) to rent the residence, collect the rents, and make the mortgage payments. In addition, the terms of the contract provided the Jennings were to net approximately

$8,000.00. Based upon the Respondent's representations, the Jennings moved back to West Virginia in February of 1983 and ceased making mortgage payments.

Respondent failed to make the mortgage payments from February of 1983 to August of 1983. In August of 1983, the house was sold at a foreclosure sale for the reason the mortgage payments had not been made. Based on these charges, the Department sought to discipline the Respondent's real estate license.

The Respondent disputed these charges and requested a Section 120.57(1) hearing. Thereafter, a formal hearing was set for August 2, 1984, in Miami, Florida. On August 1, 1984, an emergency telephone conference was held upon the Respondent's oral Motion for Continuance and said continuance was granted. The matter was set for formal hearing on November 8, 1984, in Miami, Florida. A Motion to Continue said hearing was filed by the Petitioner on behalf of both the Petitioner and Respondent and said Motion was granted. The hearing was ultimately held on February 5, 1985, in Miami, Florida.

At the hearing, held February 5, 1985, the Department called Kevin L. Good, Betsy Cohn, Salvatore G. David, Leon Shiff, Herman G. Isis, and Gerald and Mary Anne Jennings by way of deposition. Petitioner's Exhibits 1 through 9 were offered and received into evidence. The Respondent failed to appear and no witnesses nor documentation were heard or received into evidence on her behalf. A Proposed Recommended Order has been submitted by the Petitioner and considered in the preparation of this Recommended Order. When the party's findings of fact were consistent with the weight of the credible evidence introduced at the final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial, or unnecessary have not been adopted.

FINDINGS OF FACT

1. At all times pertinent to the charges, the Respondent Joyce A. Chandler, was a licensed real estate broker in the State of Florida, holding license number 0348072. Respondent's license was suspended for a period of one year pursuant to a Final Order of the Florida Real Estate Commission on August 4, 1983, which became effective September 3, 1983. To date, the Respondent has failed to take steps necessary to reactivate her license and she remains in a suspended status.

   
   

2. Gerald and Mary Anne Jennings were the owners of a home located at 15413 S.W. 105th Avenue, Miami, Florida. There was a first mortgage on the home held by Stockton, Whatley and Davin.

   
   

3. In the early part of 1981, the Jennings were experiencing financial difficulties and in an effort to help pay off debts secured a second mortgage in the amount of $15,000.00 from Davide and Associates, Inc. This mortgage from Davide and Associates, Inc., was a wrap-around mortgage making the total obligation (Stockton, Whatley and Davin plus Davide) approximately $44,000.00. In August of 1981, Davide and Associates, Inc. sold the wrap-around mortgage to Mr. and Mrs. Leon Shiff.

   
   

4. In January of 1983, the Jennings made a decision to sell their home as they were having difficulty making payments to Shiff. The Jennings contacted Mr. Shiff and informed them of their decision, and Mr. Shiff attempted to secure prospective purchasers for them.

5. On or about January 30, 1983, the Respondent Chandler made an offer to purchase the Jennings home, which offer was rejected by the Jennings. On or about February 2, 1983, the Respondent made a second offer to purchase the Jennings home which offer was accepted.

   
   

6. The terms of this February 2, 1983 contract provided that the Respondent was to give sufficient funds to the Jennings to catch up on all mortgage arrearages, tender to the Jennings approximately $4,000.00 in cash, and the Jennings were to take back a third mortgage in the amount of $4,000.00. Respondent, in turn, was to assume the Stockton, Whatley and Davin mortgage and agreed to pay off the Shiff mortgage within 90 days.

   
   

7. The Jennings desired to return to West Virginia immediately. Therefore, the Respondent promised and represented to the Jennings that she would secure tenants to occupy the residence while she attempted to obtain the

   necessary financing and to close the transaction and would use the proceeds from the rental money to make all mortgage payments.

   
   

8. On or about February 22, 1983, the Respondent and the Jennings signed yet a third contract. Said contract has not been produced and the location of it is unknown. On this same date, the Respondent had the Jennings sign, in blank, a Warranty Deed. The Respondent represented to the Jennings that the Warranty Deed was nothing more than a Power of Attorney which enabled the Respondent to rent the house and use the rental money to make the mortgage payments while the Respondent sought the financing per the terms of the contract.

   
   

9. Based on the Respondent's representations and promises, the Jennings vacated the residence and stopped making mortgage payments. Thereafter, the Respondent secured a Mr. and Mrs. Hill as tenants for the property. Mr. and Mrs. Hill came to the Respondent as tenants from Prudential Life Insurance Company. Mr. and Mrs. Hill had recently experienced damage to their home due to a fire and the Respondent secured rental property for the Hills on behalf of Prudential. In regards to this matter, Prudential paid via a double party check made payable to Robert Hill and Princess International, Inc. $1,950.00. The Respondent goes by the name of P. J. Chandler, Princess Chandler, Princess international and Princess International, Inc. These tenants remained in the Jennings' home for approximately two months.

   
   

10. The Respondent made no mortgage payments to either Stockton, Whatley and Davin or to Mr. Shiff for the period of February 1983 to August 1983. Further, the last mortgage payment made was for the January payment delivered to Mr. Shiff by Mrs. Jennings.

    
    

11. In order to keep the first mortgage in good standing with Stockton, Whatley and Davin, Mr. Shiff took it upon himself to make these mortgage payments although he was receiving no mortgage payments on the wrap-around from Mr. & Mrs. Jennings or the Respondent. In June of 1983, Mr. Shiff enlisted the aid of Herman Isis, attorney at law, to begin foreclosure proceedings on the residence. In August of 1983, the residence was sold to Shiff at the foreclosure sale. Thereafter, a certificate of title was received by Mr. Shiff in regards to said foreclosure purchase.

    
    

12. The Jennings received only $3,248.00 from the Respondent as opposed to the approximate $8,000.00 contract amount. The transaction never closed as promised by the Respondent. Finally, the Respondent failed to make the necessary mortgage payments as represented and promised by her to the Jennings.

    CONCLUSION OF LAW

    
    

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

    
    

14. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes, (1983). Neither the Respondent nor her attorney of record, Fred Graves, appeared at the Final Hearing in this matter. Mr. Graves was noticed for the final hearing on November 30, 1984, and the attorney for the Petitioner had contacts with Mr. Graves until approximately the Christmas holidays. Thereafter, the attorney for the Petitioner attempted to contact Mr. Graves on many occasions but was unsuccessful in doing so. Approximately two weeks prior to the final hearing in this matter, the Petitioner's attorney ascertained that Mr. Graves was still representing the Respondent in this matter and based upon said representations made no attempt, pursuant to the Code of Ethics, to contact the Respondent. There appears at this time to be no justifiable reason for the absence of the Respondent or Fred Graves. The hearing was held accordingly.

    
    

15. Section 475.25(1)(b), Florida Statutes, authorizes the Florida Real Estate Commission to suspend or revoke a real estate license, or impose an administrative fine nor exceeding $1,000.00 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 a business transaction. . . ." The administrative Complaint charges the Respondent with violating this statute by promising to Mr. and Mrs. Jennings, the owner of a house located 15413 S.W. 105th Avenue, Miami, Florida that she, pursuant to the terms of the written contract, and oral representations, would obtain a tenant for the Jennings home to allow the Jennings to move back to West Virginia and that the Respondent would make all necessary mortgage payments to the appropriate mortgage holders until the transaction was closed, said date to be approximately August 15, 1983. The Respondent failed to make said mortgage payments as promised and the house went into foreclosure and was sold via foreclosure in August of 1983.

    
    

16. It is clear from evidence presented that on or about February 2, 1983, the Respondent entered into a contract with Mr. and Mrs. Jennings to purchase their home located at 15413 S.W. 105th Avenue, Miami, Florida. That pursuant to the terms of the contract the Respondent was to tender to the Jennings sufficient monies to make up all mortgage arrearages, was to pay to the Jennings

    $4,000.00 in cash, and the Jennings were to take back a third mortgage in the approximate amount of $4,000.00. On or about February 22, 1983, the Respondent had the Jennings sign a blank Warranty Deed, representing said deed to be nothing more than a Power of Attorney to allow her to rent the residence and to pay the mortgage payments. The Jennings left for West Virginia on or about February 22, 1983, leaving the care of their residence in the hands of the Respondent and relying upon her representations and promises that she would rent the house and make all necessary mortgage payments until such time as she could obtain the necessary financing to close the transaction, all of which was to occur on or before August 15, 1983. The evidence further shows that the Respondent did secure a tenant for the house for a period of approximately two months and received monies in regard to said tenancy but failed to pay any of

    these monies over to the mortgage bolder. Further, from February 1983 through August 1983, the Respondent failed to make any mortgage payments and the property went into foreclosure in June of 1983, and was ultimately sold via foreclosure in August 1983. There is no doubt that the Jennings put their faith and trust into the Respondent's representations and promises and relied upon her to carry through with said promises, all of which she failed to do.

    
    

17. As a real estate broker in Florida, the Respondent occupies a status under the law with recognized privileges and responsibilities. Zinchlin v. Dill, 25 So. 2d 4 (Fla. 1946); United Homes, Inc., v. Moss, 154 So. 2d 351 (Fla. 2d D.C.A. 1963). Inasmuch as a real estate broker in Florida belongs to a privileged class, the State has prescribed a high standard of qualifications. Zichlin, supra. "The law specifically requires that a person, in order to hold a real estate, must make it appear that he is honest, truthful, trustworthy, of good character and that he bears a good reputation for fair dealing." McKnight

    v. Florida Real Estate Commission, 209 So. 2d 99 (Fla. 2d D.C.A. 1967). Anyone who deals with a licensed broker may assume that he is dealing with an honest and ethical person. Shelton v. Florida Real Estate Commission, 120 So. 2d 191 (Fla. 2d D.C.A. 1960)

    
    

18. The Petitioner has established by clear and convincing evidence that the Respondent has failed to meet the standards expected and required of a licensed real estate broker in the State of Florida. Respondent made certain and definite representations and promises to Mr. and Mrs. Jennings and intentionally failed to carry through those representations and promises thereby resulting in the Jennings suffering a monetary loss under the contract and foreclosure on their home.

    
    

19. For all the above stated reasons, the Respondent by her conduct, representations, and actions, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.

    
    

20. In regard to the penalty to be imposed, consideration has been given to the fact that the Respondent's real estate license has previously been suspended for a one year period of time for violations of the Real Estate Practice Act.

RECOMMENDATION

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

RECOMMENDED:

That the Respondent Joyce A. Chandler's license as a real estate broker be revoked.

DONE and ORDERED this 22nd day of March, 1985, in Tallahassee, Leon County, Florida.

SHARYN L. SMITH

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 22nd day of March, 1985.

COPIES FURNISHED:

James R. Mitchell, Esquire Department of Professional

Regulation, Division of Real Estate

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

Fred Graves, Esquire

315 S.E. Seventh Street

Ft. Lauderdale, Florida 33301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Harold Huff Executive Director

Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 84-000400

Orders for Case No: 84-000400