STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0837

)

LOUIS S. OKONIEWSKI, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, on May 15, 1985, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter.

APPEARANCES

For Petitioner: James R. Mitchell, Esquire

Division of Real Estate Post Office Box 1900 Orlando, Florida 32802

For Respondent: Louis S. Okoniewski

730 Lake View Avenue, Northeast Atlanta, Georgia 30308

This matter arose on Petitioner's Administrative Complaint charging Respondent with failure to make a $1,000 escrow deposit on a real estate transaction where he was the purchaser, with failure to diligently seek financing, and failure to forfeit the

$1,000 deposit on demand of the sellers.

Petitioner submitted proposed findings of fact, which have been substantially adopted and incorporated herein. Subsequent to hearing, Respondent filed a motion to reopen proceedings based on alleged deficiencies of notice. This motion is without merit and is denied.

FINDINGS OF FACT

1. At all times pertinent to the charges, Respondent was a licensed real estate salesman and broker-salesman, license number 0326235.

   
   

2. In 1983, Dorothy Nutt and Diane Falstad were the owners of a house located at 608 Hillcrest Street, Orlando, Florida.

   
   

3. In December of 1983, Ms. Nutt and Ms. Falstad placed this house for sale with real estate broker Frank Daley. The listing was an exclusive listing except as to the Respondent and another individual, for which no commission would be paid, if a contract submitted by the Respondent was accepted by Nutt and Falstad prior to December 26, 1983.

   
   

4. On December 25, 1983, the Respondent, along with his parents, Barbara Okoniewski and Louis Okoniewski, Jr., submitted a written contract to Diane Falstad and Dorothy Nutt for the purchase of the 608 Hillcrest Street property. The contract was accepted by the sellers on December 26, 1983.

   
   

5. The contract, as executed by the Respondent and his parents, specified that a $1,000 deposit was to be held in escrow by "Closing Agents." Additionally, Respondent represented to Ms. Falstad that the $1,000 deposit was being maintained in an escrow account.

   
   

6. Pursuant to the terms of the contract, Respondent applied for a V.A. mortgage loan, but was later determined to be ineligible.

   
   

7. Subsequent thereto, on or about February 8, 1984, application was made with Residential Financial Corporation (RFC), to obtain financing to purchase the 608 Hillcrest Street property. The application was in the name of the Respondent's parents, with Respondent handling the matter on their behalf.

   
   

8. Thereafter, the Respondent requested that the loan officer (Charlyne Becker) at RFC not submit the loan application for approval to the underwriters. Pursuant to his request, the application was not submitted for approval.

   
   

9. The transaction did not close. Subsequent to the scheduled date of closing both Ms. Falstad and Ms. Nutt made demands of the Respondent for forfeiture of the $1,000 deposit, due to their belief that, he had breached the contract by

   failing to secure financing. It was not until after the scheduled closing date that the sellers learned the $1,000 was not in escro.

   
   

10. To date, Respondent has neither deposited the $1,000 in any trust account nor paid any money to the sellers.

    
    

11. Respondent admits through his own testimony, that he did not make the deposit, nor was the deposit placed in any escrow account by his parents.

12. Respondent's testimony, which was not rebutted, established that he and his parents sought to purchase the 608 Hillcrest Street property and that adjacent to it for rental purposes. However, they were advised by the RFC loan officer (Charlyne Becker) that the applications were not likely to be approved by RFC. Respondent did not thereafter pursue any of the loan applications.

    
    

    CONCLUSIONS OF LAW

    
    

13. Section 475.25, Florida statutes (1983) provides in part:

    
    

    1. The commission may deny an application for licensure, registration, or permit, or renewal thereof may suspend a license or permit for a period not exceeding 10 years may revoke a license or permit may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, or any or all of the foregoing, if it finds that the licensee, permittee, or applicant:

       
       

       * * *

       
       

       (b) 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 any other person engaged in any such misconduct and in furtherance thereof or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design, or scheme. It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss that the damage or loss has been settled and paid after discovery of the misconduct, or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public.

14. Respondent is charged with violating the above provisions in two respects the first being his failure to make the agreed escrow deposit and his representations that he had done so. In this regard, he is guilty as charged in the Administrative Complaint.

    
    

15. The second charge relates to Respondent's inability or refusal to forfeit the escrow amount (or otherwise pay to the sellers) the agreed upon $1,000. Here, the evidence did not establish that Respondent failed to diligently seek financing or that he breached his contract with the sellers. In this regard, he is not guilty.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Petitioner enter a Final Order fining Respondent $500.

DONE and ENTERED this 12th day of July, 1985 in Tallahassee, Florida.

R. T. CARPENTER, 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 12th day of July, 1985.

COPIES FURNISHED:

James R. Mitchell, Esq. Division of Real Estate Post Office Box 1900 Orlando, Florida 32802

Louis S. Okoniewski

730 Lake View Avenue, N.E. Atlanta, Georgia 30308

Harold Huff. Executive Director Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esq. General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================

=

AGENCY FINAL ORDER

================================================================

=

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE, COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs. CASE NO. 0039595

DOAH NO. 85-0837

LOUIS S. OKONIEWSKI,

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on September 17, 1985 to issue a Final Order.

Hearing Officer R.T. Carpenter of the Division of Administrative Hearings presided over a formal hearing on May 15, 1985. On July 12, 1985, he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact and Conclusions of Law. A copy of this Recommended Order is attached hereto and made a part hereof.

Petitioner's Exceptions to the Recommended Order, attached

hereto as Exhibit B, are rejected by the Florida Real Estate Commission.

As to the penalty recommended by the Hearing Officer, the Florida Real Estate Commission increases this penalty, based upon Paragraphs 10 and 11 of the Findings of Fact and upon the testimony of the Respondent. The Commission therefore ORDERS that the license of the Respondent be suspended for one (l) year.

This Order shall be effective thirty (30) days from the date of filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 17th day of September 1985 in Orlando, Florida.

Harold R. Huff, Director Florida Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Louis S. Okoniewski at 730 Lake View Avenue NE, Atlanta, Georgia 30308 and at 2601 Western Way, Orlando, Florida 32803; to Hearing Officer R.T. Carpenter, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to James Mitchell, Staff Attorney, Dept. of Professional Regulation, P O Box l900, Orlando, Florida 32802, this 25th day of September l985.

Harold R. Huff

Docket for Case No: 85-000837

Orders for Case No: 85-000837