STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) ex rel. ROBERT J. CORDA, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1993

) (P.D. NO. 3022) KENNETH M. OLSON, JR. and OLSON )

& ASSOCIATES REAL ESTATE, INC., )

)

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 January 11, 1977 at St. Petersburg, Florida.

APPEARANCES

For Petitioner: Frederick H. Wilson, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Kenneth M. Olson, Jr. was not present.

By Administrative Complaint filed October 4, 1976, the FREC ex rel. Robert

1. Corda seeks to revoke, suspend, or otherwise discipline the registration of Kenneth M. Olson, Jr. and Olson & Associates Real Estate, Inc. as broker and corporate broker respectively. As grounds there for it is alleged that the corporate broker, by and through its AFM, Olson, obtained a $500 earnest money deposit on a contract to purchase real property; that the property transaction did not close; and that, after obtaining an advisory opinion from the FREC to disburse the deposit to the seller, Defendant failed to disburse the funds and thereby violated Section 475.25(1)(c) F.S. At the hearing two witnesses who were the parties to the contract were called by the Plaintiff and six exhibits were admitted into evidence. Exhibits 1 and 2 showing attempted delivery of the Administrative Complaint and Notice of Hearing by certified mail, to the last address of the Defendants registered with the FREC, were admitted as late-filed Exhibits 1 and 2.

   
   

   FINDINGS OF FACT

   
   

   1. Kenneth M. Olson, Jr., is a registered real estate broker with the FREC and Active Firm Member of Olson and Associates Real Estate, Inc., a corporate broker registered with the FREC. A copy of the Administrative Complaint was forwarded to the last address of Defendants registered with the FREC by certified mail numbers 4747 and 4748 and the notice of hearing was forwarded to

      the same address by certified mail numbers 4613 and 4614. Accordingly the Hearing Officer had jurisdiction over the Defendants and the offenses.

      
      

   2. By contract dated September 17, 1975 (Exhibit 6) Joseph J. Pillucere contracted to purchase real property from Paul L. Nave. The contract provided, inter alia, for a $500 earnest money deposit, $9500 down payment at closing with purchaser to assume existing first mortgage of approximately $28,000; and the seller taking back a purchase money second mortgage in the amount of $17,000.

      
      

   3. Thereafter, at the time scheduled for closing, the purchaser failed to produce the additional down payment required, execute the second mortgage and assume the existing first mortgage.

      
      

   4. After receiving conflicting demands from buyer and seller for the return of the earnest money deposit Defendant requested an advisory opinion from the FREC in accordance with Section 475.25(1)(c) FS. On May 13, 1976 an advisory opinion (Exhibit 5) was given by FREC to the Defendant, with copies to both parties to the contract, advising Defendant that the earnest money deposit should-be disbursed to the seller. The deposit has been disbursed to neither party to the contract.

      
      

      CONCLUSIONS OF LAW

      
      

   5. Section 475.25(1) F.S. provides the registration of a registrant may be suspended for a period not exceeding two years upon a finding of fact showing that the registrant has:

      
      

      "(c) Failed to account or deliver to any person, including registrants under this chapter, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document, or thing of value, including a share of a real estate commission, or any secret or illegal profit, or any divisible share or portion thereof, 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, and at the time which has been agreed upon or is required by law or, in the absence of a fixed time

      upon demand of the person entitled to such accounting and delivery

      
      

   6. Pursuant to the terms of the contract, when the buyer failed to comply with the obligations he thereby assumed, he became in default under the contract and the earnest money deposit was forfeited. At this time the seller was entitled to one half of the earnest money deposit in accordance with the contract.

      
      

   7. It is therefore concluded that by failure to disburse one-half of the earnest money deposit to the seller Defendant violated Section 475.25(1)(c) F.S. above quoted. It is therefore,

      
      

      RECOMMENDED that the registration of Kenneth M. Olson, Jr. and Olson Associates Real Estate, Inc. be suspended for a period of six (6) months.

      DONE and ENTERED this 26th day of January, 1977, in Tallahassee, Florida.

      
      

2. N. AYERS Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Kenneth M. Olson, Jr.

Olson & Associates Real Estate, Inc. 12601 Gulf Boulevard

Treasure Island, Florida 33740

Docket for Case No: 76-001993

Orders for Case No: 76-001993