STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3904

) LOUISE DIABO, d/b/a MARATHON ) REALTY, )

)

Respondent. )

)

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 April 6, 1987 in Homestead, Florida. The parties waived the time requirement that a Recommended Order be entered within thirty (30) days following the close of the hearing. The parties were granted leave to submit posthearing memoranda supportive of their respective positions. Proposed findings which are not incorporated in this Recommended Order are the subject of specific rulings in an Appendix to the Recommended Order.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Senior Attorney

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

For Respondent: Michael H. Davidson, Esquire

WATSON & CLARK

Post Office Box 11959

Fort Lauderdale, Florida 33339 ISSUE PRESENTED

The issue presented for decision herein is whether or not the Respondent engaged in conduct within the purview of Section 475.25(1)(b), Florida Statutes, set forth hereinafter in detail, as is set forth in the Administrative Complaint filed herein signed August 29, 1986.

INTRODUCTION AND BACKGROUND

On or about May 2, 1985, Respondent, Louise Diabo, solicited and obtained a sales contract entered into by Emily Cathy Cronnon, as purchaser, and W. J. and Delores Sarver, as sellers, for the purchase and sale of certain residential property which was scheduled to close on or about July 1, 1985. The transaction

did not close as scheduled and the purchaser remained in possession until she vacated the property on or about September 3, 1985. The Respondent received a

$500 rental payment for August, 1985, from the purchaser and made the sellers aware of the rental payment on August 30, 1985. The parties terminated the sales contract in December, 1985.

By its Administrative Complaint signed August 29, 1986, Respondent was charged with a single count of concealment contrary to the provisions of Section 475.25(1)(b), Florida Statutes. Specifically, it is alleged that Respondent received the $500 rent payment check from the contract buyer and did not advise the sellers of her receipt of that rental payment until approximately twenty

(20) days later. It is also alleged in the Complaint that the Respondent permitted the contract buyer to move into the sellers' property without the sellers' permission prior to the time that the transaction closed.

Petitioner presented the testimony of its investigator, Floyd M. Stephens and one of the sellers, Mr. W. J. Sarver.

Petitioner introduced, and the undersigned received, Petitioner's Exhibits

1 through 7.

Respondent presented the testimony of Billy Hull, and she testified on her own behalf. Respondent introduced, and the undersigned received, Respondent's Exhibits 1 through 4.

FINDINGS OF FACT

1. Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints relative to real estate transactions. (Official recognition of Florida Statutes, TR 6-7)

   
   

2. Respondent is now and was at times material hereto, a licensed real estate broker in Florida, having been issued License No. 0149408.

   
   

3. The last license to Respondent was as a broker, t/a Marathon Realty at Post Office Box 2386, Marathon Shores, Florida 33052. (Petitioner'S Exhibit 1)

   
   

4. On or about May 2, 1985, Respondent solicited and obtained a sales contract entered into by Emily Cathy Cronnon, as purchaser, and W. J. and Delores Sarver , as sellers, for the purchase and sale of certain residential property (contract for sale). (Petitioner'S Exhibit 2)

   
   

5. The sales transaction was scheduled to close on or about July 1, 1985, but the transaction did not close.

   
   

6. On or about December 2, 1985, the purchaser and sellers terminated the sales contract. (Petitioner'S Exhibit 3)

   
   

7. On or about May 13, 1985, the Respondent allowed Emily Cathy Cronnon and her live-in boyfriend, Billy Hull, to take possession and occupy the property with the knowledge and consent of seller W. J. Sarver. In this regard,

   W. J. Sarver denies giving permission to Ms. Cronnon to occupy the property prior to closing. However, it is found herein and the testimony of Billy Hull and Respondent substantiate the fact that Emily Cronnon and Billy Hull visited Respondent's office during early May, 1985, to find out whether they could move into the Sarver property with their furnishings prior to closing. Initially,

   Ms. Diabo advised Cannon and Hull that she was not at liberty to permit them to move in. However, she told them that if they liked, they could phone Mr. Server and get his permission. This was done and it is found that Mr. Sarver gave his permission to Respondent to allow Ms. Cronnon and Billy Hull to occupy the premises prior to closing, provided they turned the utilities off and then had the same turned on in their name. This was done, and the contract purchaser (Cronnon) and her boyfriend, Billy Hull, moved in prior to the time that the transaction closed.

   
   

8. Respondent received a $500 rental payment from the purchaser on August 19, 1985. (Respondent's Exhibits 1 and 2) Respondent deposited said check in an appropriate bank account and waited eleven (11) days for that check to clear.

   On August 30, 1985, she wrote a $500 check to the Sarvers indicating that the same was rental payment to them for the use of their property by Cronnon and Hull. Respondent customarily waits at least ten (10) days for any check to clear before she writes a check drawn on those same funds.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes (1985).

   
   

10. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes (1983).

    
    

11. The authority of Petitioner is derived from Chapter 475, Florida Statutes (1985).

    
    

12. Insufficient evidence was offered herein to establish that the Respondent engaged in acts and/or conduct amounting to concealment, fraud, misrepresentation, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction within the purview of Subsection 475.25(1)(b), Florida Statutes (1985).

RECOMMENDATION

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

That the Administrative Complaint filed herein be DISMISSED.

RECOMMENDED this 9th day of July, 1987, in Tallahassee, Leon County, 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 9th day of July, 1987.

APPENDIX

Rulings on Petitioner's proposed findings:

1. Accepted as modified.

7. Rejected based on credible evidence herein which reveals that Emily Cathy Cronnon and her live-in boyfriend, Billy Hull, took possession and occupied the property with the prior knowledge and consent of seller, W. J. Sarver.

1. Rejected based on credible evidence which reveals that Respondent did not conceal the rent payment, but rather deposited the rent payment until the funds cleared her bank and she immediately thereafter transmitted the proceeds to the Sarvers.

2. Rejected as irrelevant and unnecessary to decide the issues posed.

3. Rejected as a conclusion and not a finding of fact.

Respondent's proposed findings and conclusions are largely a brief in the form of resolutions of credibility, conflicts, recommendations as to how those conflicts should be resolved, and conclusions in the form of ultimate findings of fact. As such, they are not specifically addressed in the Appendix, but were carefully considered and reviewed by the under signed in preparation of the Recommended Order.

COPIES FURNISHED:

JAMES H. GILLIS, ESQUIRE SENIOR ATTORNEY

DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802

MICHAEL H. DAVIDSON, ESQUIRE WATSON & CLARK

POST OFFICE BOX 11959

FORT LAUDERDALE, FLORIDA 33339

HAROLD HUFF, EXECUTIVE DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32502

HONORABLE VAN B. POOLE, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

JOSEPH A. SOLE, ESQUIRE GENERAL COUNSEL

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

Docket for Case No: 86-003904

Orders for Case No: 86-003904