STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 80-1250

)

VIRGINIA E. BELL and )

VIRGINIA BELL REALTY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case came on for final hearing in Jacksonville, Florida, on September 10, 1980, before the Division of Administrative Hearings and its duly designated Hearing Officer, WILLIAM B. THOMAS. The parties were represented by:

APPEARANCES

For Petitioner: S. Ralph Fetner, Esquire

For Respondent: Virginia E. Bell, in pro per

On or about May 29, 1980, the petitioner issued an administrative complaint against the respondents, alleging facts in connection with a real estate transaction which violate Section 475.25(1), Florida Statutes. At the hearing, the respondent, Virginia E. Bell, stipulated to the accuracy of the complaint's factual allegations. No evidence was presented against the respondent, Virginia Bell Realty, Inc., as this business has been sold and is no longer in operation.

FINDINGS OF FACT

1. By letter dated December 27, 1977, VIRGINIA E. BELL, of VIRGINIA BELL REALTY, INC., forwarded to Mr. and Mrs. George Kuruzovich a contract for sale and purchase of real estate which had been executed by Robert and Patricia Gaudet. The cover letter from this respondent to Mr. and Mrs. Kuruzovich, stated that the contract provided for ". . . a net cash to you of not less than $7,500. This contract provided in paragraph twenty-two, "It is agreed that the seller shall net not less than $7,500 cash from sale herein upon closing." By letter dated January 3, 1978, Mr. George Kuruzovich informed Virginia E. Bell that the sellers approved the terms of the contract, with the understanding that they would receive net cash not less than $7,500.

   
   

2. The contract dated December 27, 1977, was not consummated. However, a new contract, dated February 18, 1978, was executed by the sellers, George and Loretta Kuruzovich, with purchaser Patricia A. Gaudet. This contract likewise provided in paragraph twenty-two, ". . . sell [sic] shall net no less than

   $7,500 cash from sale herein payable upon closing." The contract dated February

   18, 1978, was executed by all parties. The matter proceeded to closing, with the sellers authorizing Virginia E. Bell, to act as their agent.

   
   

3. On May 4, 1978, Virginia E. Bell signed a letter to American Title Insurance Company stating that:

   
   

   "I, Virginia Bell, hereby certify that the proceeds of sale regarding the above captioned property is $7,053.34 and not $7,500.00 as required under the special provisions of the Sales Contract and that Virginia Bell Realty will assume any liability as far as payment concerning the net proceeds to Mr. and Mrs.

   George Kuruzovich, and furthermore, I will not hold American Title Insurance Company responsible for same."

   
   

4. On May 4, 1978, the closing on the February 18, 1978, contract was consummated. Mr. and Mrs. George Kuruzovich, the sellers, received $7,053.34 in cash for the sale of their home. By letter dated May 5, 1978, to Mr. and Mrs. Kuruzovich the Respondent, Virginia Bell, explained that the cash discrepancy was due to prorations of $155 for taxes, $219.60 for interest

   in addition to the mortgage balance, and $94.22 for an FHA insurance premium paid by Respondent.

   
   

5. In mitigation, Virginia E. Bell contends that she informed the sellers that the net cash required by the contract did not include tax, interest and insurance prorations, but this self-serving oral representation must be disregarded as contrary to the expressed terms of the contract and against the weight of the evidence. This respondent admits that the transaction which is the subject of this proceeding was not handled properly, and she asserts that it will not happen again.

   
   

   CONCLUSIONS OF LAW

6. Section 475.25(1), Florida Statutes, provides in part: "(1) The board may . . . suspend a license

   for a period not exceeding 10 years, may revoke

   a license, may impose an administrative fine not to exceed $1,000 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:

   (b) Been guilty of fraud, misrepresentation, concealment, false promises . . . culpable negligence, or breach of trust . . ."

   
   

7. The failure of Virginia E. Bell to remit the sum of $7,500 to the sellers as required by the provisions of paragraph 22 of the contract constitutes a violation of Section 475.25 (1)(b), Florida Statutes. The execution by this respondent of the statement required by the title company relieving it of responsibility for the cash discrepancy, should have put her on notice that an impropriety existed, and required correction.

RECOMMENDATION

Upon Consideration of the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Virginia E. Bell be fined the sum of $500.00. It is further

RECOMMENDED that the administrative Complaint against Virginia Bell Realty, Inc., be dismissed.

THIS RECOMMENDED ORDER entered on this 16th day of September, 1980.

WILLIAM B. THOMAS

Hearing Officer

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

(904)488-1779

Filed with the Clerk of the Division of Administrative Hearings this 16thday of September, 1980.

COPIES FURNISHED:

S. Ralph Fetner, Esquire 2009 Apalachee Parkway Tallahassee, Florida 32301

Virginia E. Bell 1927 U.S. Highway 17

Orange Park, Florida 32073

George E. Marcellus

64 Sleepy Hollow Road Middleburg, Florida 32068

Docket for Case No: 80-001250

Orders for Case No: 80-001250