STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1370

)

BARBARA ORCUTT, )

)

Respondent. )

)

RECOMMENDED ORDER

A Hearing in the above styled cause was held pursuant to notice in the Municipal Court Room Building, 100 NW. 2nd Avenue, Boca Raton, Florida, at 2:30 P.M.. before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter came on to be heard upon the Administrative Complaint filed by the Florida Real Estate Commission which alleged that the Respondent Barbara Orcutt, a registered, non-active broker, had, while she was a registered real estate broker, represented to a seller that she had acquired an appropriate deposit receipt from a buyer or a note in lieu thereof when in fact she had not obtained the deposit receipt in an appropriate amount or a promissory note in lieu thereof; and further, that Barbara Orcutt had represented to the buyer that she would undertake to obtain an extension of a mortgage for an additional two months from the seller. The Administrative Complaint alleges that by virtue of the aforestated misrepresentations to the buyer and the seller, Barbara Orcutt violated 475.25(1)(a), Florida Statutes.

APPEARANCES

For Petitioner: Louis B. Guttman, III, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32759 For Respondent: not represented

FINDINGS OF FACT

1. The Florida Real Estate Commission presented evidence of the service of the Notice of Hearing upon Madison B. Graves, Esquire, 612 East Carson, Las Vegas, Nevada, 89101, as Counsel for Barbara Orcutt, by certified mail return receipt requested.

   
   

2. Barbara Orcutt is presently a non-active broker; however, Barbara Orcutt was at the time in question in the Administrative Complaint a registered real estate broker with Gold Palm Realty Corporation, 1701 S. Federal Hwy., Boca Raton, Florida, 33632.

   
   

3. Sigurd N. Hersloff was the owner of real estate described as 819 Lake Drive, Boca Raton, Florida. Hersloff contacted Jacqueline M. Winter, an

   associate broker with Gold Palm Realty, and advised her of his intent to sell said real property.

   
   

4. Winter, in turn, mentioned the fact that Hersloff desired to sell his home to the Respondent, Barbara Orcutt. Orcutt stated to Winter that she (Orcutt) knew of a potential buyer for Hersloff's real property.

   
   

5. David F. Young was advised by Orcutt of the availability for purchase of Hersloff's real property. Orcutt showed Hersloff's property to David F. Young, and subsequently David F. Young made an offer for purchase of Hersloff's real property for a purchase price of $76,200 putting up a $500 earnest money deposit.

   
   

6. This proposal was presented to Hersloff in the presence of Winter. Hersloff was concerned and annoyed that Orcutt had received only $500 as an earnest money deposit. Hersloff told Orcutt that he did not consider $500 earnest money deposit sufficient compensation for taking his property off the market and advised Orcutt that Young would have to pay a full 10 percent of the

   $76,200 purchase price as earnest money deposit. Orcutt advised Hersloff that Young could not pay an earnest money deposit. Hersloff advised Orcutt that if Young could not pay the $7,620 earnest money deposit that he would accept a promissory note for the difference between the $500 and the $7,620.

   
   

7. Orcutt left Hersloff and Winter presumably to return to Young to present Hersloff's objection to the contract for purchase. Orcutt later returned and spoke with Hersloff and Winter. She represented to Hersloff and Winter that she had obtained a promissory note from Young made out to Gold Palm Realty Corp. and that same would be deposited in Gold Palm Realty Corporation's escrow account together with Young's $500 earnest money deposit. Upon this representation Hersloff executed the contract for purchase presented by Orcutt in Young's behalf.

   
   

8. The contract for purchase provided in part that Hersloff was to hold a second mortgage in the amount of $15,000 for a period of four months from the date of closing, said second mortgage to bear no interest.

   
   

9. Young, who was in the process of selling real property in another state, became concerned that he might not be able to repay the second mortgage to Hersloff within the four months as stated in the contract. He spoke with Orcutt and asked her if she could obtain an extension of two months within which to pay the second mortgage. Orcutt represented to Young at that time that she did not anticipate that Hersloff would have any objection to such an extension.

   
   

10. Subsequently in a conversation between Hersloff and Young, Hersloff determined that contrary to Orcutt's representation, she had not obtained a promissory note from Young. Young, at that time, learned that Orcutt had not mentioned a possible extension of the mortgage to Hersloff.

    
    

11. On November 11, 1974, the Parties closed the transaction.

    
    

    CONCLUSIONS OF LAW

    
    

12. Section 475.25, F.S., provides in pertinent part that the registration of a registrant may be suspended for a period not exceeding two years upon a Finding of Facts showing that the registrant has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, a breach of trust in any

    business transaction, or has violated a duty imposed upon him by law or by the terms of the listing contract, written, oral, expressed or implied in a real estate transaction.

    
    

13. The facts clearly indicate that the representation by Orcutt that she had obtained the promissory note in lieu of an appropriate earnest money deposit was the basis for Hersloff's execution of the contract for purchase.

    
    

14. It is equally clear that Orcutt had not obtained such a promissory note from Young.

    
    

15. Orcutt's statement to Hersloff that she had obtained said promissory note was an intentional misrepresentation of a material fact calculated to induce Hersloff into entering the contract for purchase with Young.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the registration of Barbara Orcutt as a non- active broker be suspended for a period of two years.

DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Louis B. Guttman, III, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Madison B. Graves, Esquire 612 East Carson

Las Vegas, Nevada 89101

Docket for Case No: 76-001370

Orders for Case No: 76-001370