STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 84-2171

) PERRY F. KOON and PERRY F. KOON ) AGENCY, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 1, 1984, in Williston, Florida.

APPEARANCES

For Petitioner: Fred Langford, Esquire

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

For Respondents: Benjamin T. Shuman, Esquire

611 North Pine Hills Road Orlando, Florida 32808

ISSUE

The issues presented for decision herein are whether or not Respondents are guilty of fraud, misrepresentation, concealment and/or breach of trust in a business transaction as is more fully alleged in the Administrative Complaint filed herein dated February 27, 1984.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

   
   

2. Respondent, Perry F. Keen, is now, and was at all times material herein, a licensed real estate broker, having been issued license number 0048813.

   
   

3. Respondent, Perry F. Koon Agency, Inc., is a corporation licensed as a real estate broker and has been issued license number 0124199 with a business address of 212 East Noble Avenue, Williston, Florida.

4. At all times material herein, Respondent, Perry F. Koon, was licensed and operated as a real estate broker and sole qualifying broker and officer of Respondent, Perry F. Koon Agency, Inc.

   
   

5. In September of 1981, Respondents obtained a written open listing agreement from Gracie Williams to sell certain real estate property owned by Williams listed at Southeast Ninth Street, Williston, Florida at an asking price of $8,000 with a 10 percent brokerage commission. (Respondent's Exhibit E) The listing agreement was effective by its terms through June 30, 1982. Respondents were unable to sell the Williams property during the terms of the written listing agreement. However, Respondents continued to market Ms. Williams' property based on an oral agreement.

   
   

6. Prior thereto, and specifically during mid-March, 1980, Ms. Gracie Williams borrowed approximately $4,779.60 from Tom and Wilma C. Bailey. Ms. Williams later became injured and was unable to make regular installment payments on the loan from the Baileys.

   
   

7. As security for the loan from the Baileys, Ms. Williams gave a mortgage to the Baileys which encumbered the properties here in question (lot 12, block

   13 in Williston, Levy County, Florida) as well as other properties owned by Ms. Williams. (Respondent's Exhibit B) The Baileys contacted Ms. Williams, by letter, regarding her past due loan payments and urged her to bring her accounts current as "We cannot continue to carry this account past due." (Respondent's Composite Exhibit H)

   
   

8. Being unable to repay the Baileys as agreed, Ms. Williams turned to Respondent 1/ far assistance. Respondent, however, was not interested in an outright purchase of Ms. Williams' property although he agreed to purchase Ms. Williams' property by assuming her loans from the Baileys. (Petitioner's Exhibit 5)

   
   

9. On October 26, 1982, Ms. Williams executed a quit claim deed in favor of Respondent's wife, Jettie R. Keen. (Petitioner's Exhibit 1) Thereafter, Respondent renegotiated the loan that he assumed from Ms. Williams in favor of the Baileys whereby the Baileys agreed to accept annual payments of $1,000 each year.

   
   

10. During that time, Rachael Breuton as renting the subject property from Ms. Williams paying $70 per month. Respondents were able to sell the property (Williams) to Rachael Breuton for approximately $6,500 by accepting payments of

    $100 per month. (Respondent's Exhibit D)

    
    

11. Respondent thereafter brought the delinquent Williams loan, in favor of the Baileys, current.

    
    

12. Once the subject charges were brought by Ms. Williams, she contacted an attorney and filed other charges which have been settled by Respondent. Respondent, as stated earlier, was not interested in purchasing the Williams property from the outset. He merely attempted to assist Ms. Williams by taking this property and assuming the loan in favor of the Baileys to free up other properties, as well the subject property, for Ms. Williams.

    
    

13. Respondents have deeded the subject properties back to Ms. Williams as part of this settlement agreement entered into by and between Respondents and Ms. Williams.

14. Ms. Williams denies that she executed a deed to Respondent or, for that matter, anyone until she was paid for her property. Based on all of the documentary evidence received herein, including Respondents' testimony during the hearing, Respondents' version of the events concerning the allegations herein are credited to the extent that Respondents' version conflicts with the version adduced herein by Ms. Williams.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

17. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

    
    

18. Insufficient evidence was offered herein to establish that the Respondents, Perry F. Koon and Perry F. Koon Agency, Inc., are guilty of fraud, misrepresentation, concealment or breach of trust in a business transaction as is alleged in the Administrative Complaint filed herein dated February 27, 1984.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Administrative Complaint filed herein be dismissed in its entirety.

RECOMMENDED this 23rd day of January, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 23rd day of January, 1985.

ENDNOTE

1/ References to Respondent refer to Perry F. Koon individually and as sole qualifying broker for Perry F. Koon Agency, Inc.

COPIES FURNISHED:

Fred Langford, Esquire Division of Real Estate

P.O. Box 1900

Orlando, Florida 32802

Benjamin T. Shuman, Esquire 611 N. Pine Hills Road Orlando, Florida 32808

Fred Roche Secretary

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-002171

Orders for Case No: 84-002171