STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-778

)

GRACE MAKUCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a public hearing in this case, in the Federal Courthouse Building, Orlando, Florida, on July 9, 1980. The parties were represented by counsel:

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Staff Attorney

2009 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent: Frank G. Finkbeiner, Esquire

CARR AND FINKBEINER, P.A.

341 North Magnolia Avenue Orlando, Florida 32801

The issue for determination is whether the Respondent, Grace Makuch, (hereafter "Respondent or Makuch") violated Section 475.25(1)(a), Florida Statutes by allegedly converting a $2,200 deposit to herself or to some other use and/or making a false promise that the $2,200 deposit would be refunded when the property was sold.

Prior to the formal hearing, counsel for the parties stipulated that the Respondent is registered with the Board of Real Estate (hereafter "Board") as a real estate salesman. During the hearing, Petitioner's Exhibits One-Nine and Respondent's Exhibits One-Five were admitted.

FINDINGS OF FACT

1. In October, 1975, Priscilla Alwin, now known and hereafter referred to as Priscilla Tolman or "buyer", entered into an oral agreement with the Respondent to purchase property located at 13 Westchester Drive, Kissimmee, Florida, for $39,000. At the time of the agreement, title to the property was vested in Aime and Lilian Giguere, parents of the Respondent. On October 8, 1975, in furtherance of this agreement, the buyer gave the Respondent a $1,000 cashiers' check as a deposit. The buyer gave the Respondent an additional $600

   towards the deposit for a total of $1,600. Another check for $400 was given to the Respondent and in turn, endorsed over to the Respondent's husband who testified that the check was in payment for a lawnmower purchased by the buyer's employer.

   
   

2. Due to difficulties the buyer had previously encountered in obtaining mortgage financing, the Respondent agreed to an oral contract for sale which called for monthly rental payments of $375 and a total down payment of $4,000. 1/ The buyer assumed possession in October, 1975, and in November and December of 1975, paid $375 to the Respondent, who in turn assigned the checks to the title owner, Aime Giguere.

   
   

3. Following the buyer's marriage in December, 1975, the buyer and Respondent met and discussed the buyer's desire to vacate the property and possibly recoup the monies paid to Mr. Giguere. The Respondent agreed to refund the monies if another buyer could be secured and a contract executed which would leave Mr. Giguere with a net profit.

   
   

4. On December 24, 1975, a contract for sale was executed and on December 26, 1975, an agreement for deed was signed by Mr. Giguere and Howard and Jewel Daniels on the subject property. The selling price was $40,000 with $1,600 paid as a brokerage fee to Makinson Realty, the listing agency. The Daniels' inspected the property prior to executing the sales contract and before Mrs. Tolman vacated in January, 1976.

   
   

5. In selling the property for her father, the Respondent was not acting as a real estate salesman and received no fee or commission.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over this matter.

   
   

7. Paragraph 10 of the Administrative Complaint charges that the Respondent:

   
   

   converted the....sum of $2,200 to herself or to some other use for which it was not intended, wrongfully and with intent to de fraud the Buyer, and that she

   wrongfully with intent to defraud concealed the fact that an Agree ment for Deed had been made prior to the Buyer's leaving the said property. Further, the Respondent made a false promise to the Buyer that she would repay the ... $2,200 when the property was sold.

   
   

8. The Board failed to carry its burden of establishing by either clear and convincing or a preponderance of the evidence, that the Respondent converted any of the deposit monies to her on use or some other use for which they were not intended, that she wrongfully with intent to defraud concealed the sale to the Daniels or that the Respondent made a false promise to refund $2,200 or any sum received by her father as a deposit. The monies in question are not and have not been the property of the Respondent, but rather her father as title

owner. No written contract was executed setting forth the duties and responsibilities of the buyer and Mr. Giquere in the event the buyer failed to complete the sale. Both the buyer and the Respondent are licensed realtors who presumably are knowledgeable of the practical problems caused when disputes arise over oral contracts for the sale of real property.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Administrative Complaint filed against Grace Makuch, be dismissed. DONE and ORDERED this 15th day of July, 1980, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

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

(904) 488-9675

ENDNOTE

1/ Although the buyer testified that the total down payment was to be $10,000 rather than $4,000, the lower figure appears more credible in light of the actual sales price of $39,000, the financial situation of the parties and the existing mortgage on the home of approximately $27,000, which the buyer intended to assume with the Respondent's father financing the difference, presumably as a second mortgage.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Staff Attorney

2009 Apalachee Parkway

Tallahassee, Florida 32301

Frank G. Finkbeiner, Esquire CARR AND FINKBEINER, P.A.

341 North Magnolia Avenue Orlando, Florida 32801

C. B. Stafford, Executive Director Florida Real Estate Commission

400 West Robinson Avenue Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 80-000778

Orders for Case No: 80-000778