STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) ALBERT W. LOFTUS, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 75-1169

)

ELIZABETH V.T. ROACHE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard at 10:00 A.M. on October 14, 1975, at 921 Seybold Building in Miami, Florida, before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mr. Louis B. Guttmann, III, Esquire

2699 Lee Road

Winter Parka Florida 32759

For Respondent: Mrs. Elizabeth V. T. Roache

910 Harbor Drive

Key Biscayne, Florida 33149 INTRODUCTION

The issue presented for decision at the hearing was whether respondent is guilty of fraud, concealment, dishonest dealing and/or breach of trust in a business transaction in violation of

1. 475.25(1)(a), and, if so, whether such conduct warrants suspension of her registration as a real estate broker.

   
   

   FINDINGS OF FACT

   
   

   1. The respondent, Elizabeth V. T. Roache, has been a registered real estate broker in Florida since 1957.

   2. Charles Woods and Miriam Woods had their house and property located at 601 North Mashta Drive in Key Biscayne, Florida on an open listing at a selling price of $155,000.00.

      
      

   3. Mrs. Roache contacted Lorne A. Smith, with whom she had previously had one business dealing (jointly purchasing and reselling a lot) in the past. Mr. Smith offered to buy the Woods' property for $140,000.00.

      
      

   4. On or about December 10, 1972, Mrs. Roache prepared a deposit receipt contract listing "Lorne A. Smith and/or assigns" as the purchaser and stating a purchase price of $140,000.00. Mr. Smith signed this document and the respondent Roache signed as a witness. On the same date, respondent delivered this document to the Woods and the Woods rejected the offer. (Exhibit 1).

      
      

   5. There is some dispute in the evidence as to the timing of the events which transpired. Respondent Roache and Mr. Smith testified that Smith asked Roache to go in with him as a copurchaser of this property after the offer of $140,000.00 was rejected. The investigator for the Commission, Mr. Albert W. Lotus, Jr., testified that Smith told him on two occasions that this was a fifty-fifty proposition "from the beginning".

      
      

   6. In any event, Mrs. Roache and Mr. Smith decided to go in on this together and to make an offer of $147,500.00 to the Woods. Mrs. Roache then took the same December 10, 1972, document back to the Woods on the same date. The Woods accepted the $147,500.00 offer and handwritten changes were then made on the document and initialed by the Woods and Mr. Smith. These changes related to the change in purchase price, the balance of the deposit being placed in escrow and excepting the pool heater from those appliances required to be in working order. There was also a change made in the amount of the commission to be paid to the broker, respondent herein. No changes were made in the name of the purchaser, nor did Mrs. Roache remove her name as a witness or sign as a purchaser.

      
      

   7. The respondent testified that she informed the Woods at the time of presenting the second offer on December 10, 1972, that she was to be a copurchaser and that she did not change the name of the purchaser on the deposit receipt contract because it had already been drawn up and because the words "and/ or assigns" would adequately cover her as a copurchaser. Both Mr. add Mrs. Woods testified that they were not told on December 10, 1972, that respondent was to be a copurchaser, and, indeed, did not learn

      that she was to be a purchaser until a day or two before the closing date of March 22, 1973.

      
      

   8. Between the dates of December 10, 1972, and March 22, 1973, Mrs. Roache spent a good amount of time at the subject property cleaning, fixing it up and supervising workmen. Mr. Woodsy did not remember seeing her working around the house, and Mrs. Woods saw respondent come in and out many times. During this time, the Woods were living in a home adjacent the the subject property.

      
      

   9. The closing occurred on March 22, 1973, and the warranty deed contained the names of Mr. and Mrs. Smith, and the respondent Roache. (Exhibit No. 2).

      
      

   10. In May of 1973, the house was resold by respondent and the Smiths for a purchase price of $170,000.00. There was evidence that the house was not resold before the March 22, 1973, closing date and that the new owners redid many of the improvement which respondent and the Smiths had caused to be made.

       
       

       CONCLUSIONS OF LAW

       
       

   11. F.S. 475.25(1)(a) provides that the registration of a registrant may be suspended upon a finding of facts showing that the registrant has been guilty of, inter alia, fraud, concealment, dishonest dealing and/or breach of trust in any business transaction. The same section makes it immaterial to the guilt of the registrant that the victim of such misconduct has sustained no damage or loss.

       
       

   12. It is the general rule that a broker can neither purchase from, nor sell to, his principal unless the latter expressly assents thereto, or, with full knowledge of all the facts and circumstances, acquiesces in such a course. 5 Fla. Jur., "Brokers," 26; Van Woy v. Willis, 14 So.2d 185 (Fla. 1943); Chisman v. Moylan, 105 So.2d 186 (Fla. App. 2nd, 1958). With the exception of that testimony of the investigator that Mr. Smith twice told him that this transaction was to be a fifty-fifty proposition between him and respondent from the beginning (Mr. Smith explaining at the hearing that "from the beginning" meant from the time of the $147,500.00 offer), this case evolves into a determination of the truth of respondent's testimony as compared with the truth of the Woods' testimony. Mrs. Roache insists that she informed the Woods that she was to be a copurchaser at the time of the $147,500.00 offer. The Woods both declared that they

       had no knowledge that respondent was to be a copurchaser until a day or two before the closing some three months later.

       
       

   13. Having observed the witnesses in this case and considered the evidence, it is concluded that the Woods' version of this transaction is to be given the greater credance and weight. Other than respondent's assertion that she told the Woods that she was to be a copurchaser, there is no other evidence to support such an assertion. Mr. Smith testified that he was not present at the time Mrs. Roache made the $147,500.00 offer and that he himself never informed the Woods that respondent was to be a copurchaser until a few days before the closing. Both Mr. and Mrs. Woods were present at the time of the $147,500.00 offer and when the changes in the deposit receipt contract were made, and they both testified that Mrs. Roache did not tell them she was to be a copurchaser. The deposit receipt contract indicates that numerous changes were made, yet no change was made in the name of the purchaser nor did respondent sign this document as a purchaser or remove her name as a witness. There appears to be no valid reason for not including these changes at the same time that the other changes were made. There is certainly no evidence that the Woods expressly assented to or, with full knowledge of all the facts and circumstances, acquiesced in respondent's direct interest in this property.

       
       

   14. A real estate broker who presents a deposit receipt contract listing one name as a purchaser, without disclosing to the sellers that the broker herself is to be a copurchaser, is guilty of fraud, concealment, dishonest dealing and breach of trust in violation of F.S. 475.25(1)(a).

RECOMMENDATION

Based upon the above findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating

1. 475.25(1)(a) and that her registration as a real state broker be suspended for a period of ninety days.

   
   

   Respectfully submitted and entered this 14th day of November, 1975, in Tallahassee, Florida.

   
   

   DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

   (904) 488-9675

   COPIES FURNISHED:

   
   

   Louis B. Guttmann, III, Esquire 2699 Lee Road

   Winter Park, Florida 32789

   
   

   Mrs. Elizabeth V. T. Roache 910 Harbor Drive

   Key Biscayne, Florida 33149

   ================================================================= AGENCY FINAL ORDER

   ================================================================= FLORIDA REAL ESTATE COMMISSION

   ALBERT W. LOFTUS, JR.,

   
   

   Petitioner,

   
   

   vs. PROGRESS DOCKET NO. 2664

   DADE COUNTY

   ELIZABETH V.T. ROACHE, DOAH CASE NO. 75-1169

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   At a regular meeting of the Florida Real Estate Commission held at its Executive Headquarters in Winter Park, Florida, on December 22, 1975,

   
   

   PRESENT: Edgar L. Schlitt, Chairman

   John R. Wood, Vice Chairman Maggie S. Lassetter, Member

   
   

   APPEARANCES: Louis B. Guttmann III, Esquire

   Attorney for Plaintiff

   
   

   William E. Walsh, Jr., Esquire Attorney for Defendant

   
   

   This matter came on for Final Order upon the Examiner's Recommended Order and Plaintiff's Exceptions and Defendant's Exceptions thereto and upon consideration thereof together with the record and oral arguments of counsel for the Plaintiff and counsel for the Defendant, the Commission, being fully informed and upon due consideration thereof, finds:

   
   

   1.

   
   

   That according to the records of the Commission, the last address defendant Elizabeth V. T. Roache has registered with the

   Commission is as a broker, T/A Crandon Realty, 69 Harbor Drive, Key Biscayne, Florida 33149.

   
   

   2.

   
   

   That the Findings of Fact and Conclusions of Law in the Examiner's Recommended Order are supported by competent substantial evidence in the record and should be adopted by the Commission. Further, the Recommendation to find the Defendant guilty of violating Subsection 475.25(1)(a), Florida Statutes, should be adopted and the recommended penalty of a ninety (90) day suspension rejected.

   
   

   3.

   
   

   That both the Defendant's and Plaintiff's Exceptions to the Recommended Order should be denied.

   
   

   4.

   
   

   That the Defendant, Elizabeth V. T. Roache, has shown mitigating circumstances sufficient to satisfy the Commission that the suspension of the Defendant's registration is not required, and that a reprimand should be imposed for the violation.

   
   

   IT IS THEREFORE ORDERED:

   
   

   1. That the Findings of Fact, Conclusions of Law and Recommendation as to a finding of guilty contained in the Hearing Examiner's Recommended Order be, and the same are hereby, adopted as the Order of the Commission; however, the recommended penalty is rejected in view of the mitigating circumstances shown by the Defendant;

      
      

   2. That the Defendant's and Plaintiff's Exceptions to the Examiner's Recommended Order be, and the same are hereby, overruled and denied;

      
      

   3. That defendant Elizabeth V. T. Roache be, and she is hereby, adjudged guilty of violating the provisions of Subsection 475.25(1)(a), Florida Statutes, as alleged in the Information;

      
      

   4. That the Defendant has shown mitigating circumstances sufficient to satisfy the Commission that the suspension of the Defendant's registration is not required;

   5. That for such violation defendant Elizabeth V. T. Roache be, and she is hereby, privately reprimanded and admonished that any future violations of the Florida Real Estate License Law will subject her to a more severe penalty. That said reprimand shall not be published in the "Florida Real Estate Commission News and Report".

DONE AND ORDERED at the Executive Headquarters, Winter Park, Florida, this 8th day of January, 1976.

Edgar L. Schlitt Chairman

John R. Wood Vice Chairman

Maggie S. Lassetter Member

I CERTIFY that I mailed a copy of the foregoing Final Order to William E. Walsh, Jr., Esquire, 1038 Alfred I. duPont Building, Miami, Florida 3131, Attorney for Defendant, by United States registered mail this 8th day of January, 1976.

NOTICE TO DEFENDANT:

This Order shall become effective on the 7th day of February,

A.D. 1976, unless Petition for Writ of Certiorari is filed on or before that time. See Subsections 475.31(3); 475.31(5); 475.35;

475.40 and 120.68, Florida Statutes; also Rules 4.1 and 4.5(c), Florida Appellate Rules.

Docket for Case No: 75-001169

Orders for Case No: 75-001169