STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2635

)

JOYCE A. WOLFORD, )

T/A BLUE RIBBON REALTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on August 16, 1990, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Janine B. Myrick, Esquire

Department of Professional Regulation

Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

For Respondent: Raymond Bodiford, Esquire

47 East Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether the Respondent's real estate license in Florida should be disciplined because the Respondent committed fraud, misrepresentation, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.

Whether the Respondent's real estate license should be disciplined because the Respondent failed to account and deliver funds in violation of Subsection 475.25(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

By an Administrative Complaint filed on December 7, 1979, the Petitioner alleges that the Respondent has violated Subsections 475.25(1)(b) and (d), Florida Statutes. The Respondent disputed the charges and requested a hearing. Thereafter, a formal hearing was held on August 16, 1990, in Orlando, Florida.

At the hearing, the Petitioner presented the testimony of Diane Ortiz, Jane Evers and Anthony Pellegrino. Respondent testified in her own behalf and offered no exhibits.

The record was not transcribed. Petitioner submitted its proposed recommended order on August 24, 1990. Respondent submitted her recommendations on August 29, 1990. The proposals submitted by the parties have been given careful consideration and adopted when supported by the evidence. My specific rulings are contained in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. Respondent Joyce A. Wolford is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0313643 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Blue Ribbon Realty, 1400 N. Semoran Boulevard, Orlando, Florida 32807.

   
   

   As To Counts I and II

   
   

3. Diane Ortiz was employed by Respondent Joyce Wolford to perform various duties, including operating the computer and taking messages.

   
   

4. During her employment with Respondent, Diane Ortiz completed a contract for sale and purchase of certain real property which was signed by Jane Evers as buyer.

   
   

5. In conjunction with the Evers contract, Ortiz did receive an earnest money deposit in the form of a cashier's check for the sum of $1000 and made payable to Blue Ribbon Realty.

   
   

6. The earnest money deposit check given by Evers was turned over to Respondent by Ortiz.

   
   

7. The endorsement on the Evers deposit check was Blue Ribbon Realty.

   
   

8. The sale was contingent on Evers' assumption of the existing mortgage. The mortgagee did not approve Evers, and the transaction did not close.

   
   

9. Evers contacted Ortiz and Respondent on several occasions and demanded return of her $1,000 deposit.

   
   

10. Evers met personally with Respondent and demanded return of the $1,000 deposit.

    
    

11. Evers sent a written demand for the return of the deposit by certified mail to Respondent on August 9, 1989.

12. Despite Evers repeated demands for return of the $1000 deposit, Respondent has not returned any money to Evers.

    
    

13. Jane Evers filed a lawsuit against Respondent Joyce Wolford in the County Court for Orange County, Florida, for the sum of $1,000 and court costs.

    
    

14. A Final Judgment in the civil lawsuit was rendered for Jane Evers against Joyce Wolford for $1,000 principal plus $73 in court costs on March 15, 1990.

    
    

15. Respondent has not satisfied the Final Judgment awarded to Evers or any portion thereof.

    
    

    As To Counts III and IV

    
    

16. Anthony Pellegrino did enter a contract to purchase certain real property known as Lakefront Motel near Clermont, Florida.

    
    

17. Respondent Joyce Wolford did negotiate the contract.

    
    

18. Pellegrino did give Respondent a $5,000 earnest money deposit in the form of a cashier's check to secure the contract for purchase of Lakefront Motel.

    
    

19. The cashier's check given as a deposit by Pellegrino was endorsed to Blue Ribbon Realty account #0880510063.

    
    

20. The Lakefront transaction did not close, and Pellegrino demanded that Respondent return the $5,000 earnest money deposit on several occasions.

    
    

21. Respondent has not returned the $5,000 deposit or any portion thereof to Pellegrino. The $5,000 earnest money deposit for the Lakefront contract was transferred to a mortgage company for a transaction involving a condominium that Pellegrino sought to purchase. Said condominium transaction did not close.

    
    

22. In neither case did Respondent request the Florida Real Estate Commission to issue an escrow disbursement order.

    
    

23. On July 2, 1990, the Florida Real Estate Commission entered a Final Order in the case of Department of Professional Regulation v. Joyce Wolford, finding Respondent guilty of failure to account and deliver a commission to a salesman and imposing a reprimand and an administrative fine of $1000.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

26. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes (1989).

27. The Petitioner is responsible for the disciplining of licenses of real estate brokers. Section 475.25, Florida Statutes (1989).

    
    

28. Subsection 475.25, Florida Statutes (1989), provides that the Florida Real Estate Commission may suspend a license for a period of not exceeding ten

    (10) years; revoke a real estate license; may impose an administrative fine not to exceed $1000 for each count or separate offense; and may impose a reprimand or, any or all of the foregoing, if it finds that a licensee has violated Subsection 475.25(1)(b) and (d), Florida Statutes.

    
    

29. Subsection 475.25(1)(b), Florida Statutes (1989) proscribes fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in business transaction.

    
    

30. Subsection 475.25(1)(d), Florida Statutes (1989), proscribes failure to account or deliver to any person, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, which has come into his hands and which is not his property or which he is not in law or equity entitled to retain under the circumstances.

    
    

31. The burden of proof is on the Petitioner as to each count of the Administrative Complaint. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Revocation of license proceedings are penal in nature, State ex rel. Vining v. Florida Real Estate Commission,

    281 So.2d 487 (Fla. 1973), and Petitioner has to prove by clear and convincing evidence the violations alleged in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

32. As a real estate licensee in Florida, the Respondent occupies a status under law with recognized privileges and responsibilities. Zichlin v. Dill, 25 So.2d 4 (Fla. 2nd DCA 1946); United Homes, Inc. v. Moss, 54 So.2d 351 (Fla. 2nd DCA 1963).

    
    

33. Inasmuch as a real estate licensee 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 license, 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 199 (Fla. 2nd DCA 1967). Anyone who deals with a licensee may assume he is dealing with an honest and ethical person. Shelton v. Florida Real Estate Commission, 120 So.2d 191 (Fla. 2nd DCA 1960).

    
    

34. The Petitioner's proof is both clear and convincing in both cases, sufficient to justify the imposition of a penalty within the range of those provided for by the Legislature.

    
    

35. Respondent received the $1,000 earnest money deposit from Evers. The sale did not go through and Respondent has not articulated any reason, except for the physical and emotional trauma she suffered around that time that caused her to close her real estate office, why the funds have not been returned to Evers. In fact, a final judgment for that amount has been obtained by Evers against the Respondent which has not been satisfied. Her conduct is simply not justifiable.

36. In regard to the Pellegrino transactions, after the purchase of the Lakefront property did not close, it was improper for Respondent to transfer the

    $5,000 deposit to a mortgage company for any purpose without the express written authorization from Pellegrino. This practice was thoroughly unprofessional and cannot be explained away.

    
    

37. For all of the above-stated reasons, it is the position of the Petitioner that the Respondent is guilty of having committed violations of Subsections 475.25(1)(b) and (d), Florida Statutes.

    
    

38. Respondent has previously been disciplined by the Commission for failure to account and deliver a commission to a salesman and must be considered in recommending an appropriate penalty for Respondent's misconduct.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found guilty of having violated

Subsections 475.25(1)(b) and (d), Florida Statutes (1989), as charged in Counts

I, II, III and IV of the Administrative Complaint.

It is further recommended that Respondent's real estate license be suspended for two years, imposing an administrative fine in the amount of $1,000 and, upon completion of the suspension period, placing Respondent on probation for a period of two years with such conditions as the Commission may find just and reasonable.

DONE AND ENTERED this 8th day of October, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1990.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact:

Accepted in substance: Paragraphs 1,2,3,4,5,6,9,10,11,12,13,14,15,16,1,7,18,19,20,21,22,24 (in

part), 25

Rejected as cumulative or irrelevant: 7,8,23,24 (in part)

Respondent's proposed findings of fact: Accepted in substance: Paragraph 1

Rejected as against the greater weight of the evidence: Paragraph 2,3

COPIES FURNISHED:

Janine B. Myrick, Esquire Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, FL 32801

Raymond Bodiford, Esquire

47 East Robinson Street Orlando, FL 32801

Darlene F. Keller Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, FL 32801

Kenneth Easley General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0750

Docket for Case No: 90-002635

Orders for Case No: 90-002635