Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: May 07, 1987
Summary: Novice salesman gave downpayment to builder for additions to house was naive and venial failure to put deposit in escrow.
87-0454.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )
)
Petitioner, )
)
vs. ) CASE NO. 87-0454
)
ANN MARIE CARPENTER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 13, 1987, at Dade City, Florida.
APPEARANCES
For Petitioner: Arthur R. Shell, Jr., Esquire
Division of Real Estate
400 West Robinson Street Orlando, Florida 32801
For Respondent: Ann Marie Carpenter, pro se
6343 Juniper Street
Webster, Florida 33497
By Administrative Complaint filed January 16, 1987, the Department of Professional Regulation, Division of Real Estate, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Ann Marie Carpenter, Respondent, as a real estate broker. As grounds therefor, it is alleged that in a real estate transaction in which Respondent acted as a salesman, she had the earnest money deposit made out to the seller, failed to place the deposit in escrow, and when the transaction failed to close, the earnest money deposit was not returned to the buyers. These acts are alleged to violate Section 475.25(1)(b), (d), and (e), and 475.42(1)(b), Florida Statutes.
At the hearing Petitioner called three witnesses, Respondent testified in her own behalf, and five exhibits were admitted into evidence. Objection to Exhibit 6 on grounds of hearsay was sustained.
The parties were allowed ten days following the filing of the transcript to submit proposed recommended orders. Those orders have not been filed.
FINDINGS OF FACT
At all times relevant hereto, Respondent was licensed as a real estate broker with the Florida Real Estate Commission and was employed by Hernando
County Realty as a broker-salesman. The active broker for Hernando County Realty was Doris M. Wysong. Prior to the contract hereafter discussed, Respondent had only sold three or four properties since she was first licensed as a real estate salesman in 1984.
Respondent obtained a listing for several houses being built by a developer and placed a Hernando County Realty sign on one of these properties.
The developer, Carl L. Lawson, advertised this house for sale in the newspaper with his telephone number listed to contact. In response to that advertisement, Frank and Josephine Mello called Lawson to see the house. Lawson made an appointment and called Respondent who showed up while Lawson was showing the house to the Mellos. The Mellos liked the house.
After leaving the premises, the Mellos decided to buy the property and called Lawson to tell him. Lawson arranged for them to return to sign a contract, and so advised Respondent. At this meeting the following day, on April 7, 1986, Respondent arrived with a contract which she completed. The buyers and seller negotiated a few additional items the buyers wanted and, although Respondent offered to put these items in the contract, both buyers and seller demurred. Buyers and seller agreed that seller could use the down payment to cover the cost of the additional work.
Mello made the earnest money deposit payable to Lawson even though the check was clearly marked for deposit, and after making a copy of the check for the office records, Respondent returned the check to Lawson who cashed it.
When the contract was signed on April 7, 1966, Mello asked Lawson to lock up the building to keep people from coming in and messing it up. Lawson agreed but Mello visited the property frequently between April 7 and the closing date of May 15, 1986, but never found the house locked. He complained to Lawson about this and about a settling crack that appeared in the garage wall.
On Sunday, May 13, 1986, Mello again visited the house to show it to his son and daughter-in-law. They went in and Mel1o saw the crack in the garage wall appeared to be getting bigger. He again telephoned Lawson about this.
Monday, May 14, was scheduled for a final inspection. Early that morning, before the time for the inspection, the Mellos went to the property and found Lawson removing some of the debris from the grounds and doing some cleaning. Respondent was also there. When Mr. and Mrs. Mello went into the house to inspect, Mello saw the crack in the garage had not been corrected and he and Lawson got into a violent argument, nearly culminating in fisticuffs. Mrs. Mello returned to her car crying, while Lawson and Mello shouted. At this time, Lawson told Respondent to get the Mellos out of his house and to forget about the contract. To settle the controversy before fisticuffs erupted, Respondent wrote void across the contract and Mello left.
Respondent then returned to the real estate office and told her broker, Doris Wysong, what had transpired. Wysong reminded Respondent that she should have had the deposit made out to the realty office and placed it in escrow, but if the transaction didn't close, that she should get Lawson to refund the deposit.
The parties didn't cool off sufficiently to complete the transaction, the sale didn't close, and Lawson refused to return the deposit which he had apparently used for the additions requested by Mello.
Mello went to the real estate office and talked to Respondent and to Wysong. The latter called her attorney, who advised her not to refund money she never had received. Mello then went to the consumer affairs office in New Port Richey where he was advised to report the incident to the Florida Real Estate Commission. That was subsequently done and this administrative complaint and hearing resulted.
Shortly after this incident, Respondent placed her license in an inactive status.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
When Respondent arrived at the house which had been advertised by Lawson, Lawson was already showing the prospective buyers the house and he told Respondent that he would nevertheless pay her company the agreed-upon commission if the sale was consummated. Having little experience, Respondent allowed herself to follow Lawson's lead including the handling of the deposit. In this respect, she overheard the conversation between Lawson and Mello regarding the minor changes Lawson would make to comply with Mello's request and obviously forgot about the duty of a broker or salesman in handling an earnest money deposit. In this respect, she violated Section 475.25(1)(d), Florida Statutes, by failing to place the deposit in escrow and subsequently failing to deliver this deposit to the party entitled to receive same.
By allowing the buyer to make the earnest money deposit payable to the seller, Respondent is alleged to have operated as a salesman for a person not registered as her employer in violation of Section 475.25(1)(e), Florida Statutes. Respondent would not need a real estate license to sell real estate exclusively for the builder or developer, so it is not clear how Respondent is supposed to have violated this provision. Certainly Respondent was fully aware that the only broker for whom she worked was Hernando County Realty, even though she did not insist the deposit be placed in escrow in the realty escrow account.
Respondent's actions with respect to this transaction do not reach the degree of culpability associated with fraud, false pretenses, dishonest dealing, et cetera, as contained in Section 475.25(1)(b), Florida Statutes. Respondent's actions here represent naivete -- not venality; a lack of knowledge and experience -- not the specific intent required to establish fraud. However, a real estate licensee can cause nearly as much damage to the public by ignorance as by an intent to deceive or defraud.
From the foregoing, it is concluded that Ann Marie Carpenter failed to properly account for and deliver to the person entitled thereto, an earnest money deposit received on a contract to purchase and sell realty. It is
RECOMMENDED that the license of Ann Marie Carpenter as a real estate broker be suspended for a period of two years.
ENTERED this 7th day of May, 1987, in Tallahassee, Leon County, Florida.
K. N. AYERS 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 7th day of May, 1987.
COPIES FURNISHED:
Harold R. Huff, Director Division of Real Estate
400 West Robinson Street Orlando, Florida 32001
Van Poole, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Arthur Shell, Jr., Esquire Division of Real Estate
400 West Robinson Street Orlando, Florida 32801
Ann Marie Carpenter 6343 Juniper Street
Webster, Florida 33597
Docket for Case No: 87-000454
Orders for Case No: 87-000454
| Issue Date |
Document |
Summary |
|
Jun. 16, 1987 |
Agency Final Order
|
|
|
May 07, 1987 |
Recommended Order
|
Novice salesman gave downpayment to builder for additions to house was naive and venial failure to put deposit in escrow.
|
