F. MC CUE, )
)
Petitioner, )
)
vs. ) CASE NO. 76-1815
)
JACKSON L. SMITH )
and MARTIN COUNTY PROPERTIES, INC., )
)
Respondent. )
)
RECOMMENDED ORDER APPEARANCES
For Petitioner: Frederick H. Wilson, Esquire
Attorney for the Florida Real Estate Commission 2699 Lee Road
Winter Park, Florida 32789
For Respondent: Robert J. Randolph, Esquire
Randolph & Randolph Post Office Box 1546
209 West Ocean Boulevard Stuart, Florida 33494
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this cause on February 10, 1977, in Stuart, Florida. The Florida Real Estate Commission (hereinafter called the Commission), by its nominal Plaintiff H. F. McCue, filed a two count administrative complaint on or about September 1, 1976, against licensees, Jackson L. Smith, and Martin County Properties, Inc., license holders 0082376 and 0055830, respectively. The Commission seeks to revoke, suspend or otherwise discipline the referenced licensees and their rights to practice thereunder, based on the following allegations:
COUNT ONE
Count One alleges that the Defendant, Jackson L. Smith, a registered real estate broker with the Commission, received in connection with his brokerage activities, an earnest money deposit of $1,000.00 by check from George Anderson which represented an offer to purchase certain real property owned by J. C. Dooley of Orlando, Florida. The complaint alleges in pertinent part that the Defendant failed to place upon receipt the deposit, which was entrusted to him as a broker, in escrow with a title company in a banking institution or deposit said funds in a trust or escrow bank account where said funds should have been kept until disbursements were properly authorized in violation of Subsection 475.25(1)(i) Florida Statutes.
COUNT TWO
Count Two alleges in pertinent part that the Defendant Smith converted all or part of said earnest money deposit to his use or to some other use other than that for which it was entrusted without the knowledge, consent or authorization of the person or persons entitled thereto and, by reason thereof, Defendant Smith is guilty of fraud, dishonest dealings and breach of trust in a business transaction, in violation of Subsection 475.25(1)(a), Florida Statutes.
At the outset of the hearing, counsels were able to stipulate to the factual allegations contained in Count One and the Commission's counsel urged that the facts as stipulated to, amount to at best, a technical violation for which a private reprimand should be issued to Defendant Smith. Said stipulation was entered into on the record by counsel for both parties and was accepted by the undersigned. Upon my acceptance of the parties' stipulations, the Commission rested its case and the Defendant did not introduce any oral or documentary evidence.
Based upon the stipulation as received relative to the facts, I make the following:
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.
The Defendant, by his failure to place upon receipt the earnest money deposit which was entrusted to him by a person dealing with him as a broker in escrow, with a title company or banking institution located and doing business in Florida or deposit The Commission failed to introduce any evidence in support of the allegation contained in Count Two and, based thereon, it is therefore dismissed said funds in a trust or escrow bank account maintained by them, until disbursements thereof were properly authorized and the further stipulation that Defendant Smith converted $200.00 of the $1,000.00 earnest money deposit to cash without authorization from the person who presented the deposit, amounts to a violation of Subsection 475.25(1)(i), Florida Statutes.
