vs. ) CASE NO. 78-1066
) PD NO. 3329
LUCILLE V. PAYNE, )
Respondent. )
A hearing was held in the above captioned matter, after due notice, at New Port Richey, Florida, on April 23, 1979, before the undersigned Hearing Officer.
For Petitioner: Harold E. Scherr
For Respondent: Harvey V. Delzer
Whether Respondent's registration with Petitioner should be suspended or revoked for alleged violation of Section 475.25(1)(a), Florida Statutes, as set forth in the Administrative Complaint dated March 28, 1978.
Respondent Lucille V. Payne has been registered as a real estate salesman with the Respondent since 1975. In October 1976, she was employed by Robert L. Richardson Real Estate, New Port Richey, Florida. Her registration expired on March 31, 1979, and no evidence was presented to indicate that she has renewed her license since that time. (Petitioner's Exhibit 1)
On or about October 18, 1976, George and Marie Theodorakos of Hopkinsville, Kentucky were in New Port Richey, Florida looking for a house to purchase. They viewed one house as the result of an advertisement, but decided that they did not like it. The lady at that residence told them that another house nearby was going to be put on the market. This was a home located at 1435 Mill Creek Lane which was owned by a Louisiana Corporation, W. H. Payne, Inc. Respondent was secretary/treasurer of the corporation and her husband, William
H. Payne, was president. At the time, Respondent was residing in the house and her husband was employed in Wisconsin. The Paynes had not listed or advertised
the house for sale, but contemplated doing so in the future. Mr. and Mrs. Theodorakos decided to purchase the house, and Respondent called her husband that evening and secured his approval for the sale. The next day a contract was executed by the Theodorakoses and Respondent. A standard form deposit receipt contract was used that contained various references to and a signature block for an "agent" who normally would have been the real estate broker or salesman handling the transaction. These references were left blank in the contract.
The agreement provided that W. H. Payne, Inc. would sell the property for the sum of $42,000 payable with a $500 deposit and an additional $4,500 by November 4, 1976, with $15,000 cash payable at closing and the balance of $22,000 to be secured by mortgage. Closing of the transaction was to be on or before January 4, 1977. Paragraph 8 of the contract stated as follows:
8. This instrument shall become effective
as a contract when signed by the Agent, Buyer, and Seller. If not signed by all parties on
or before October 29, 1976, any monies deposited shall be refunded and this instrument shall be void.
The prospective purchasers gave Respondent $500 as a deposit and she told them that it would be placed in an escrow account. She also informed them that she would send the contract to her husband in Wisconsin for his signature under the corporate seal. Respondent told Mr. and Mrs. Theodorakos that she was a real estate salesman employed by Richardson Realty, but that she was handling the sale of the house herself without commission. (Testimony of M. Theodorakos, Brooks, Petitioner's Exhibit 2)
Respondent mailed the contract to her husband in Wisconsin on October
19 and he received it several days later. He signed and sealed it and placed it in the return mail to Respondent. She received it on an undetermined date prior to October 29, and placed it in the regular mail immediately to Mr. and Mrs. Theodorakos in Hopkinsville, Kentucky. Respondent's return address was on the envelope. Respondent also delivered a copy of the agreement to the Ellis National Bank in New Port Richey which held an existing mortgage on the property to be assumed by the purchasers. Respondent had previously notified the bank to send application forms to the purchasers for assumption of the mortgage. Respondent had also placed the $500 deposit in a bank account of W. H. Payne, Inc. (Testimony of Respondent, W. Payne)
The Theodorakoses did not receive the contract mailed by Respondent.
On Saturday, October 30, Respondent called Mrs. Theodorakos and told her that she was leaving for Wisconsin and that she could mail the remaining down payment of $4,500 to her. Mrs. Theodorakos told her that the executed contract had not been received and Respondent said that it was in the mail and would arrive probably the following Monday or Wednesday. When subsequent telephone conversations indicated that the contract probably had been lost in the mail, Respondent mailed another copy to the purchasers which they received on November 19, 1976. Also, the mother of Mrs. Theodorakos, Hylo H. Brooks, who had witnessed the agreement and lived in New Port Richey, communicated with Robert
L. Richardson, Respondent's broker, concerning the matter, and he obtained a copy of the executed agreement from the bank for her sometime in early November. (Testimony of M. Theodorakos, Brooks, Respondent, Petitioner's Exhibits 2-3, Respondent's Exhibit 1)
Subsequent conversations between the parties concerning disposition of the deposit and payment of the remaining portion of the down payment resulted in
Mr. Theodorakos informing Mr. Payne, in early December, that he was no longer interested in the house and wanted his deposit returned. Payne informed him that he would not return the deposit since they were in default by not paying the remaining amount for the down payment. Payne informed Theodorakos, however, that they could still have the property if they would send the down payment.
Shortly prior to this last conversation, Payne listed the property with a local New Port Richey broker, but inserted a special provision in the listing agreement protecting the prior rights of Mr. and Mrs. Theodorakos to purchase the property. (Testimony of M. Theodorakos, Respondent, W. Payne)
Robert L. Richardson had an informal policy in his real estate office that salesmen who sold their own properties must process the transaction through his office, whether or not a commission was involved. Although Richardson testified that he had informed all of his salesmen concerning this policy, Respondent denied being aware of it. After learning of the Theodorakos contract, Richardson terminated Respondent's employment with his office and informed Petitioner in this regard on November 5, 1976. On December 1, 1977, Richardson paid the $500 deposit amount to Mr. and Mrs. Theodorakos because he felt to do otherwise would reflect upon his reputation. (Testimony of Richardson, Petitioner's Exhibits 4-5)
CONCLUSIONS OF LAW
Although it appears that Respondent's registration with Petitioner has expired, Petitioner's Rule 21V-1.03 provides that registration continues until it is abandoned when not renewed within six months after expiration. It is therefore concluded that Respondent's registration is presently subject to reactivation upon any request for renewal by Respondent, and that, therefore, Petitioner has jurisdiction to take disciplinary action concerning such registration.
The Administrative Complaint alleges a violation of Section 475.25(1)(a), Florida Statutes, by misrepresentation, false promises, dishonest dealing and breach of trust in a business transaction. The only facts alleged in the complaint which conceivably could constitute such a violation is Respondent's refusal to refund the $500 deposit to the prospective purchasers of the property in question. No facts are alleged concerning any misrepresentation, false promise, dishonest dealing or breach of trust on the part of Respondent. The complaint simply reflects a contractual dispute over a deposit on the purchase of real estate. This, of course, is essentially a matter for adjudication by the courts and not sufficient to constitute the type of unlawful activity contemplated under the statutory provision. For this reason alone, the complaint should be dismissed.
The instant transaction involves an attempted sale of property owned by a corporation in which Respondent and her husband were principals. As such, there was no legal requirement for Respondent to utilize the services of a broker. Neither was a trust relationship involved in the transaction, since Respondent and her husband were dealing as private parties. Respondent disclosed the fact that she was a real estate salesman to the purchasers, and they were well aware that it was a personal transaction. Although the contract provided that the $500 deposit would be placed by "said agent in escrow pending closing of the transaction," there was in fact, no agent involved in the transaction. Although Respondent stated to Mr. and Mrs. Theodorakos that she would place the deposit in escrow, there was no obligation for her to do so. Even assuming arguendo that Respondent's statement concerning escrow could constitute a false promise, there is no mention of this facet of the transaction
in the Administrative Complaint, nor was it alleged therein that Respondent had violated the escrow provisions of Section 475.25(1)(i), F.S. Under such circumstances, Respondent cannot be held chargeable in this regard.
That the complaint against Respondent Lucille V. Payne be dismissed. DONE and ENTERED this 16th day of May, 1979, in Tallahassee, Florida.
THOMAS C. OLDHAM
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Harold E. Scherr Staff Counsel
Harvey V. Delzer
