STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-540

) P.D. NO. 3442

C. M. PARKER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on to be heard in Port St. Joe, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on June 12, 1979. The Division of Administrative Hearings received a transcript of the proceedings on July 9, 1979. At the hearing, the parties were represented by counsel:

APPEARANCES

For Petitioner: Kenneth M. Meer, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Robert W. Moore, Esquire

203 Third Street

Port St. Joe, Florida 32456

By administrative complaint filed January 22, 1979, petitioner alleged that respondent was registered as a real estate broker at all pertinent times; that he acted on behalf of Pelly Hayes Fester in the sale of real property to James

1. and Mary B. Williams; that he "prepared a Warranty Deed which purportedly conveyed this real property from Seller Foster to Purchasers Williams," even though "as of the date of the purported conveyance . . . Folly Hayes Fester did not own the . . . real property individually, but was only on of several heirs to Kate Foster"; that respondent is not . . . an attorney at law"; and that respondent "by reason of the foregoing, . . . is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction, in violation of Subsection 475.25(1)(a), Florida Statutes."

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, who was 54 years old at the time of the hearing, grew up in Blountstown, where he knew Ralph W. and Kate Foster, and their three children: Ralph, Jr., Alice and Mary. Kate Foster was his first grade teacher. Only Mary survives. Alice died in 1971, leaving two children. Ralph, Sr., died in 1973, less than two weeks before Kate died. Ralph, Jr., died in 1974, leaving Folly Hayes Foster a widow.

   2. In 1949, respondent moved to Mexico Beach, Florida, and in 1950, he went to work for Mexico Beach Corporation, selling and renting property. In that year he registered with petitioner as a real estate salesman. He is presently a registered real estate broker.

      
      

   3. Over the years, the Fosters acquired various parcels of Mexico Beach real estate and built cottages; Mary and Alice each ended up with a beach cottage, but for many years Ralph, Jr., had no cottage. Kate Foster wanted her son to have her cottage after her death. She consulted a lawyer in Blountstown who drew a deed in favor of Ralph, Jr., reserving in Kate a life estate. This deed mistakenly contained the legal description not of Lot 8, the improved lot Kate intended to convey, but of an adjoining, unimproved lot. Kate did not notice this when she executed the deed and everybody in the family was under the impression that Lot 8 had been conveyed. After her mother's death, Mary saw to it that the rental income from Let 8 was deposited first to her brother's account, then, after his death, to the account of Folly Hayes Foster.

      
      

   4. In 1975, Polly Hayes Foster told Mary that she wanted to sell Lot 8. As a result, Mary asked respondent to try to sell Lot 8. According to tax records respondent had copies of at the time, "Foster, R.W." had title to the property. Respondent had kept up with the Fosters and, like the family itself, was under the impression that Polly Hayes Foster had acquired Lot 8 upon her husband's death. Respondent showed Lot 8 to James C. and Mary B. Williams, who decided they wanted to buy it. Respondent prepared a warranty deed by filling

      in a form. Petitioner's exhibit No. 1. Among the items filled in was the legal description of Lot 8. In connection with their purchase of this property, the Williamses borrowed money from the Citizens Federal Savings & Loan Association of Port St. Joe, which, on the advice of counsel, accepted a mortgage on Lot 8 as security for repayment of the loan.

      
      

   5. In the course of trying to sell two lots the family thought belonged to Kate's estate, Mayo C. Johnston, the lawyer handling the estate, discovered that one of the Lots had been conveyed to Ralph Jr. Petitioner's exhibit No. 4. It soon came to light that this lot had been mistakenly conveyed instead of Lot 8. With the active cooperation of respondent, deeds of rectification were drawn and record title was made to conform to the intentions and understanding of everybody involved. Neither the Williamses nor any member of the Foster Family has suffered any financial harm as the result of these transactions.

      
      

      CONCLUSIONS OF LAW

      
      

   6. Petitioner has accused respondent, inter alia, of "fraud, misrepresentation, concealment, false promises, false pretenses [and] dishonest dealing." Petitioner has proven nothing of the kind, even though the factual allegations in the first six paragraphs of the administrative complaint were proven. Respondent also admitted these allegations in his answer to the administrative complaint.

      
      

   7. Petitioner cites the final order in Florida Real Estate Commission v. Tricoli Realty, Inc. et al., No. 78-1446 (May 14, 1979), which adopts the recommended order's conclusions of law that the respondents in that case "violated the provisions of Section 475.25(1)(a), Florida Statutes, as alleged in Count 3 of the Administrative Complaint, by preparing a lease agreement" even though they were not licensed to practice law. Count 3 of the administrative complaint in Tricoli alleged that the respondents there were guilty of violating a duty imposed upon them by law, by preparing a lease agreement . . ." In the

present case, there was no comparable allegation that the drafting of the deed was in itself a violation of a duty imposed by law on respondent. See generally 215-22nd Street, Inc. v. Board of Bus. Reg., Div. of Bev., 330 So.2d 821, 824-5 (Fla. 1st DCA 1976)(Hatchett, J., concurring).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 1st day of August, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Kenneth M. Meer, Esquire Post Office Box 1900 Orlando, Florida 32802

Robert W. Moore, Esquire

203 Third Street

Port St. Joe, Florida 32456

Docket for Case No: 79-000540

Orders for Case No: 79-000540