STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 80-992

) MARIE BONELLO; BONNE REALTY ) CORPORATION, A FLORIDA )

CORPORATION; and GLORIA )

CAMPIONE (GARTNER ), )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in the above captioned matter on June 19, 1980 at Fort Lauderdale, Florida before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Frederick H. Wilson, Esquire

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

For Respondents: Alan J. Werksman, Esquire Marie Bonello Suite 404, Interstate Plaza

1499 West Palmetto Park Road Boca Raton, Florida 33432

Gloria Campione Robert M. Arlen, Esquire Gartner 2700 North East 14th Causeway

Pompano Beach, Florida 33062 Bonne Realty Corporation, No Appearance.

ISSUE PRESENTED

Whether disciplinary action should be taken against the Respondents for alleged violation of Subsections 475.25(1)(a) (1977), 475.25(1)(b) (1979), 475.25(1)(c) (1977), and 475.25(1)(d) (1979), Florida Statutes, as set forth in the Administrative Complaint, dated May 1, 1980.

At the commencement of the hearing, Counsel for Respondent Marie Bonello announced that his client, who was present, was ill and 78 years of age and unable to testify, and moved to continue the hearing. The continuance was denied, but the parties agreed to allow her Counsel to file a deposition subsequent to the hearing and to hold the case open until her deposition could be filed. By letter dated August 13, 1980 Counsel for Marie Bonello stated that

he anticipated a restitution settlement with complaining witness Marlene Jacobs and requested further delay in closing the case. Counsel for Respondent Gloria Campione agreed to the delay by letter dated September 25, 1980. On October 8, 1980 Counsel for Petitioner requested that a recommended order be entered, and on October 31, 1980 notified the Hearing Officer that a transcript would be ordered and a proposed recommended order would be filed by Petitioner. A transcript was filed December 8, 1980. No deposition, proposed orders, or memorandum showing restitution were filed by the parties subsequent to the hearing except Counsel for Respondent Campione filed a legal memorandum and a proposed recommended order, which were considered in the rendition of this order.

FINDINGS OF FACT

1. Respondent Marie Bonello was registered with Petitioner as a real estate salesperson and also as President and Treasurer of Bonne Realty Corporation and was so registered during the time pertinent to this hearing in the year 1978 (Petitioner's Exhibit 23). Respondent Bonne Realty Corporation was licensed under Corporate Certificate No. 0196358-6 by the Florida Real Estate Commission to transact real estate business and was so registered during the time pertinent to this hearing. Respondent Gloria Campione is registered as a real estate salesperson and was so registered In 1978 and at all times material to this case was either employed by or was working with Respondent Bonello and the Respondent Bonne Realty Corporation.

   
   

2. In May of 1978 one Marlene Jacobs contacted Gloria Campione, a salesperson in Archer Real Estate, Inc., in regard to the purchase of a home in Broward County, Florida. Ms. Campione showed Ms. Jacobs several homes in the area and on or about June 9, 1978 showed her some substantially completed model homes in the Deer Run subdivision.

   
   

3. On June 11, 1978 a Deposit Receipt and Contract for Sale and Purchase was drawn for Lot 155 of the Deer Run project on which a residence was to be constructed for Ms. Jacobs and Ms. Jacobs made an initial deposit of $1,000 (Petitioner's Exhibits 3 and 9; Transcript, page 74). Archer Real Estate, Inc. and Bonne Realty Corporation were indicated as Brokers and Marlene Jacobs as the buyer. That evening Respondent Campione and another salesperson, Shannon Brisbon, who had a contract with a buyer for the same Lot Number 155, Deer Run, had a meeting with the builder/owner of the subdivision (Respondent's Exhibit 2). The builders, Frank Sepe and Lou Gonzalez, decided to accept the contract negotiated by salesperson Brisbon rather than the contract between Ms. Jacobs and Respondent Campione because Ms. Brisbon's clients would have more money to pay on the property at closing. Respondent Campione later notified Ms. Jacobs that Lot 155 was not available to her but a similar house could be built on a similar lot. Shortly thereafter Ms. Jacobs met with Respondent Campione, Ms. Bonello, and the builders and modified the original contract in ink to reflect a change in lots. Ms. Jacobs paid the balance of the deposit for a total of

   $5,000 and gave it to Respondent Campione. No construction was commenced.

   
   

4. In September of 1978 Respondent Bonello contacted Ms. Jacobs and said she desperately needed money at once and wanted Ms. Jacobs to write two checks prior to the closing of the real estate transaction. Ms. Jacobs, without notifying Respondent Campione, drew two checks dated September 8, 1978, one to Respondent Marie Bonello in the amount of $3,478.03 and one to Mr. and Mrs. Wm. Maki in the amount of $5,521.97. No receipt was given for those checks. In October of 1978 Ms. Campione learned that Ms. Jacobs had drawn the two checks in the total amount of $9,000 and had given one to Respondent Bonello and one to

   the Makis, whom she was informed held a mortgage on a shopping center owned or partially owned by Respondent Bonello. Respondent Campione was alarmed, fearing her client Ms. Jacobs would lose the unsecured money, and forthwith procured a promissory note and a new building contract dated October 4, 1978 from Respondent Bonello reflecting the receipt of the original $5,000 deposit plus the $9,000 in the two unsecured checks. The promissory note and contract were signed by Respondent Bonello upon the insistence of Respondent Campione. The contract showed a total of $14,000 deposit to be used for construction (Petitioner's Exhibits 1, 4 and 7). Still no construction was started.

   
   

5. Respondent Bonello did not deny the allegations in the complaint either at the hearing or by deposition. The evidence and the testimony of Ms. Jacobs and Respondent Campione show that Respondent Bonello was a party in her capacity as President and Treasurer of the broker Bonne Realty Corporation, as a principal on a promissory note drawn to secure monies deposited by the buyer in furtherance of a real estate transaction and was a witness on many documents pertaining to the proposed real estate sale. It is the finding of the Hearing Officer that Respondent Bonello participated in all transactions pertaining to the proposed sale of a lot on which a house was to have been constructed for the buyer Ms. Marlene Jacobs. Money was obtained from the buyer by Respondent Bonello and was not to be used and was not used for construction of Ms. Jacob's home as she was led to believe. It is the further finding that Respondent Bonello signed a promissory note to Marlene Jacobs to secure the monies she had obtained from the buyer but only at the request of Respondent Campione.

   
   

6. In November, 1978, when it appeared that no house was to be built, Ms. Jacobs discovered that Respondent Bonello had not only contracted to sell her lot to other persons but had used the deposit money in the shopping center Respondent Bonello was constructing for herself (Transcript, page 25). Ms. Jacobs has demanded the $14,000 she paid to Respondents Bonello, Campione and Bonne Realty Corporation, but no money has been received and Ms. Jacobs has been forced to seek recompense through the courts (Petitioner's Exhibits 14 and 15).

   
   

7. After Respondent Campione had first showed the property in Deer Run to her client, Ms. Jacobs, and had negotiated the contract offer between Marlene Jacobs, buyer and Archer Real Estate, Inc. aid Bonne Realty Corporation, Co- Brokers and Frank Sepe as Seller Respondent Campione moved her license and worked exclusively with Respondent Marie Bonello. Archer Real Estate, Inc. is not involved in this case.

1. At the hearing evidence was entered indicating that Bonne Realty (corporation was in existence and licensed at the time the foregoing complaint was filed and at the time of the subject transaction. Respondent Marie Bonello was listed as the President, Treasurer and 50 percent shareholder and broker for the corporation.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to this cause and over the subject matter. Section 120.57(1); 120.60, Florida Statutes.

   
   

3. The 1979 legislature transferred Subsection 475.25(1)(a) to Subsection 475.25(1)(b) and transferred Subsection 475.25(1)(c) to Subsection 475.25(1)(d), but made no substantive changes except as to penalty.

4. Subsection 475.25(1)(a), Florida Statutes (1977), Grounds for revocation or suspension.-- provides in pertinent part:

   
   

   1. The registration of a registrant may by suspended for a period not exceeding 2 years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:

      1. Been 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 this state . . . has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express or implied, in a real estate transaction. . .

         (c) Failed to account or deliver to any person, including registrants under this chapter, any personal property such as money, fund, deposit, check, . . . which has come into his hands and which is not his property, or which he is not

         in law or equity entitled to retain, . . upon demand of the person entitled to such accounting and delivery. . .

         
         

5. The evidence and testimony clearly establish that Respondent Marie Bonello engaged in a scheme designed to produce financial gain for herself. She made false promises and misrepresented facts to obtain money from and did obtain money from a client of the firm of which she was broker, President, Treasurer and participant with the salesperson in a real estate transaction. Respondent Bonello failed to account for or deliver the money she had fraudulently obtained although a demand was made to return the deposit, all in violation of the foregoing statute.

   
   

6. The evidence shows that Bonne Realty Corporation was a participant as a broker in a real estate transaction in which breach of trust was committed and a client suffered loss of a deposit through a breach of trust, false promises and misrepresentation, all in violation of the foregoing statute.

   
   

7. The evidence and testimony establish that Respondent Gloria Campione is guilty of negligence in failing to diligently promote the commencement of construction of a house on the lot she sold her client and guilty of failing to seek the advice of the Real Estate Commission upon discovery of the transaction between her client and the broker, but under the circumstances of this case these actions are insufficient to show a violation of the foregoing statute.

RECOMMENDATION

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

RECOMMENDED:

1. That a final order be entered finding Respondent Marie Bonello guilty of the charges alleged in the Administrative Complaint, and suspending her for a period of two (2) years;

   
   

2. That a final order be entered suspending the registration of Bonne Realty Corporation for two (2) years and until compliance with a lawful order imposed in the final order of suspension;

   
   

3. That a final order be entered dismissing the complaint against Respondent Gloria Campione.

DONE ad ORDERED this 19th day of December, 1980, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1980.

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

Alan J. Werksman, Esquire Suite 404, Interstate Plaza 1499 West Palmetto Park Road Boca Raton, Florida 33432

Robert M. Arlen, Esquire

2700 North East 14th Causeway Pompano Beach, Florida 33062

Docket for Case No: 80-000992

Orders for Case No: 80-000992