Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: Oct. 23, 1979
Summary: Dismiss complaint. It was not proven that Respondent failed to deliver money owed or committed a fraud. Respondent submitted problem to Florida Real Estate Commission (FREC) and there was no impropriety.
79-1231.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA BOARD OF REAL ESTATE, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1231
) P.D. NO. 3496
SIDNEY THURSTON, )
)
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 20 July 1979 at Miami, Florida.
APPEARANCES
For Petitioner: Manuel E. Oliver, Esquire
Staff Attorney
Board of Real Estate
400 West Robinson Street Orlando, Florida 32802
For Respondent: John B. Ostrow, Esquire
200 Southeast 1st Street, Suite 500 Miami, Florida 33131
By Administrative Complaint filed 17 May 1979 the Florida Real Estate Commission, now the Florida Board of Real Estate (FBRE), Petitioner, seeks to suspend or otherwise discipline the real estate broker's license of Sidney Thurston, Respondent. As grounds there for it is alleged that Respondent was guilty of misrepresentation in telling a prospective purchaser of a lot that he foresaw no problem in building a geodesic dome house on that lot, which representation induced the purchaser to execute a contract for purchase of said lot.
Count II alleging that Respondent refused to return the deposit to purchaser was dismissed at the hearing because Respondent had referred the issue to Petitioner for advice respecting disposition of the deposit.
At the hearing two witnesses were called by Petitioner, Respondent testified in his own behalf and three exhibits were admitted into evidence.
FINDINGS OF FACT
Sidney Thurston, Respondent, is registered with the Petitioner as a real estate broker and was so registered at all times here relevant.
On August 28, 1979 Lee H. Davis and his wife made an appointment with Respondent to look at lots for sale in an area being developed by Respondent's principal.
At this meeting Davis indicated that he was interested in building a geodesic dome dwelling on the lot purchased. Respondent advised Davis of the deed restrictions on this tract which provided, inter alia, that plans were subject to architecture control review by Jomar Corporation.
There was a conflict in the testimony of Davis and Respondent regarding the assurances given Davis by Respondent respecting the construction of a geodesic dome house and when this conversation occurred. However, I find it logical and probable that Respondent was advised by Davis that the latter desired and intended to erect a geodesic dome "round house" on this lot and Respondent told Davis that he foresaw no particular problems but the plans for all homes in this development had to be approved by the seller's representative.
To cover Davis' interest in this matter Respondent, in preparing the Deposit Receipt (Exhibit 1), included the sentence, "Plans will be subject to architectural review by Jomar Corp., approval of which cannot be unreasonably withheld."
Davis gave Respondent his check in the amount of $2,500 (Exhibit 2) when Exhibit 1 was executed. On 29 August 1978 Davis executed a typed contract for the purchase of this lot (Exhibit 3) which contained all provisions relevant to the issues contained in Exhibit 1.
When the architect's plans were prepared, Davis submitted them to Jomar Corp. who disapproved this type of construction in the tract. When Davis demanded return of his deposit, the seller refused to execute a release of his claim on this deposit and Respondent refused to return Davis' deposit to him.
Davis complained to Petitioner and this Administrative Complaint was subsequently filed. Respondent then referred the deposit to FBRE pursuant to Section 475.25(1)(c) Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.
Section 475.25(1), Florida Statutes, provides in pertinent part:
The registration of a registrant may be suspended for a period not exceeding 2 years upon a finding of facts showing that the registrant has:
Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing . . . or breach of trust in any business transaction, in this state....
Here the main thrust of the complaint was that Respondent misrepresented to Davis that he could build a "round house" in this subdivision. The evidence does not support a charge of misrepresentation. Respondent advised Davis that architectural plan approval was required. It is very probable that Respondent foresaw no problem with the construction of this type house and so
told Davis. Disapproval of the plans probably came as a surprise to Respondent as it did to Davis.
When Davis demanded return of his deposit, Respondent refused when his principal demanded he keep the deposit. At this time Respondent should have referred the issue to FBRE for advice or taken other steps as provided in Section 475.25(1)(c), Florida Statutes, which provides in pertinent part:
. . . if the registrant shall, in good faith, entertain doubt as to his duty to account and deliver said property, or as to what person is entitled to the accounting and delivery, or if cool flirting demands therefor shall have been made upon him and he has not appropriated the property to his own use or intermingled it with his own property of
like kind, he may notify the commission promptly, truthfully stating the facts, and ask its advice thereon or after notice thereof to the commission, shall promptly submit the issue to arbitration by agreement of all parties, or interplead the parties, or otherwise seek an adjudication of the question in a proper court and shall abide, or offer to perform, the advice of the com- mission or the orders of the court or arbi- trators, no information against him shall be permitted to be maintained . . . .
Following Davis' complaint to the Commission, Respondent complied with the above quoted provision. Had he done so when the conflicting demands upon this deposit ware made, he probably would have saved himself and the Petitioner the costs of these proceedings.
From the foregoing it is concluded that Respondent was not guilty of misrepresentation in advising Davis that he foresaw no problem with the construction of a geodesic done residence but all architectural plans required approval of seller's representative. Respondent was derelict in waiting until a complaint had bean filed before referring the dispute regarding the earnest money deposit to the Petitioner or to a court or arbitrator. It is therefore
RECOMMENDED that the Administrative Complaint be dismissed. Entered this 13th day of August, 1979.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Manuel E. Oliver, Esquire Staff Attorney
Board of Real Estate
400 West Robinson Street Orlando, Florida 32802
John B. Ostrow, Esquire
200 S.E. 1st Street, Suite 500 Miami, Florida 33131
Docket for Case No: 79-001231
Orders for Case No: 79-001231
| Issue Date |
Document |
Summary |
|
Oct. 16, 1979 |
Agency Final Order
|
|
|
Aug. 13, 1979 |
Recommended Order
|
Dismiss complaint. It was not proven that Respondent failed to deliver money owed or committed a fraud. Respondent submitted problem to Florida Real Estate Commission (FREC) and there was no impropriety.
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