STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2545

) (0003101 )

DONNA M. CLARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on January 15, 1982, in Orlando, Florida. The parties elected to exercise their right to submit proposed findings of fact and conclusions of law, and were allotted 15 days after the filing of the transcript to do so. In return, the parties waived the 30 day time requirement for submission of this Recommended Order. The transcript was filed on January 29, 1982, but to date no proposed findings and conclusions have been submitted by either party.

APPEARANCES

For Petitioner: Joseph Doherty, Esquire

3220 Chelsea Street

Orlando, Florida 32803

For Respondent: Kenneth D. Morse, Esquire

Post Office Box 431 Orlando, Florida 32802

By Administrative Complaint issued on September 15, 1981, the Petitioner seeks to revoke or suspend the Respondent's real estate license, or otherwise discipline her, for alleged violation of Section 475.25(1)(b) and Section 475.25(1)(d), Florida Statutes. Specifically, the Complaint charges the Respondent with fraud, dishonest dealing and breach of trust, by conveying property which was encumbered by a lien when the sales contract required the title to be transferred free and clear of all encumbrances, by refusing and failing to deliver a title certificate to a mobile home upon sale of the same, and by wrongfully threatening the purchaser with mortgage foreclosure for failure to maintain insurance on the mobile home as required by the mortgage which was signed by the purchaser. The conduct of the Respondent which is the subject of this proceeding arose as a result of the sale of a mobile home and lot in Seminole County, Florida.

The Petitioner presented four witnesses, and seven exhibits which were received in evidence, in support of the Complaint. The Respondent testified in her own behalf, and presented one other witness together with six exhibits which were received in evidence. Based upon the entire record of this proceeding including the testimony and exhibits, and the observed candor and demeanor of the witnesses, the following are found as facts.

FINDINGS OF FACT

1. The Respondent, Donna M. Clark, is a licensed real estate salesman, holding license number SL 0164246. In 1972, the Respondent acquired title to a mobile home and lot in Casselberry, Florida, as trustee for her two minor sons, by warranty deed. She did not receive a bill of sale or a certificate of title to the mobile home separately, but took title to both the lot and the mobile home via the deed. At no time thereafter, to the time of the transaction which is the subject of this proceeding, did the Respondent ever acquire either a bill of sale or certificate of title to the mobile home. The mobile home was attached to the real property when the Respondent took title.

   
   

2. On May 10, 1979, while continuing to act as trustee for her children, the Respondent agreed to sell this lot in Casselberry, with the mobile home still attached to it, for $12,500. The mobile home was described as a 1964 Liberty mobile home with central heat and air conditioning, and the total price included a range, refrigerator, and furnishings. The contract between the Respondent and the purchaser required that the title to the lot, the mobile home, and the furnishings be transferred by warranty deed. The Respondent represented that the entire property was free and clear of all encumbrances. Title was to be transferred subject to a purchase money mortgage to the Respondent in the amount of $10,000. The transaction closed in July of 1979.

   
   

3. Subsequently, the purchaser of the lot and mobile home sought to take out a second mortgage thereon, and acquired information leading him to believe that there was an unsatisfied lien still encumbering the property. Nevertheless, the second mortgage was placed by the lender. The Complaint alleges that this lien is in the amount of $4,000 and is payable to the Florida Hospital Credit Union. However, the only lien held by the Florida Hospital Credit Union that encumbered the subject property was satisfied on March 17,

   1975. Another encumbrance that existed at the time the Respondent contracted to sell the mobile home and lot was a mortgage which had been taken out in 1972, but a satisfaction of this mortgage was recorded in July of 1979. The evidence presented supports a finding that the subject property was transferred to the purchaser free and clear of all encumbrances.

   
   

4. The Complaint further alleges that the Respondent failed to deliver a motor vehicle title certificate to the purchaser, notwithstanding that the purchaser made a demand for delivery of same. The purchaser remembers asking the Respondent for a bill of sale to the mobile home prior to the execution of the contract to purchase, but he did not ask for a title certificate. The parties signed the contract which did not provide for delivery of a title certificate, but required that the property be conveyed by warranty deed. Nothing was said at the closing about a certificate of title to the mobile home.

   
   

5. Moreover, the mobile home sits on blocks on the lot. According to the title search made by the title company at the time the subject property closed, the mobile home was listed as realty on the tax records of Seminole County, so that the lot and the mobile home were taxed together. The land valuation for tax purposes was $3,690 and the mobile home was valued at $1,480. One tax bill

   was submitted for both, with these valuations shown thereon. At the closing, the title company treated the mobile home as realty, and did not collect Florida sales tax as would be required if the mobile home were personal property. Thus, there is sufficient evidence to support a finding that the mobile home which is the subject of this proceeding was not personalty requiring a title certificate, but was realty and taxed as such by Seminole County.

   
   

6. The Respondent is also charged with threatening to institute foreclosure proceedings against the purchaser when the insurance policy on the mobile home was allowed to lapse, leaving the mobile home uninsured. The purchase money mortgage executed by the purchaser at the time the sale of this property closed required that insurance be maintained on the mobile home for its full insurable value. This mortgage and the promissory note attached thereto also provided for acceleration of all amounts due upon default in the payment of any money payable under the terms of the mortgage. When the purchaser let the insurance on the mobile home lapse, the Respondent placed the matter in the hands of her attorney, who wrote the purchaser that he was in default under the mortgage. The purchaser was advised that the acceleration clause was being invoked, and demanded full payment of the indebtedness, failing which foreclosure proceedings would be commenced. The evidence does not support a finding that any other threat was made by the Respondent, and the letter to the purchaser from the Respondent's attorney does no more than advise that the Respondent would exercise her right to recover monies due her under the mortgage.

   
   

   CONCLUSIONS OF LAW

   
   

7. Under the provisions of Section 475.25(1)(b), Florida Statutes, the Board of Real Estate is empowered to suspend or revoke a real estate license, or impose a fine or issue a reprimand, if it finds that a licensee has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction. Section 475.25(1)(d), Florida Statutes, authorizes the Board of Real Estate to impose these same sanctions upon a licensee for failure to account or deliver personal property which he is not entitled to retain. The allegations against the Respondent in this proceeding, however, are not supported by sufficient evidence to warrant a finding that the Respondent is guilty of any of the charges set forth in the Administrative Complaint filed against her.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Donna M. Clark

be dismissed.

THIS RECOMMENDED ORDER entered on this 18th day of March, 1982, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1982.

COPIES FURNISHED:

Joseph Doherty, Esquire 3220 Chelsea Street

Orlando, Florida 32803

Kenneth D. Morse, Esquire Post Office Box 431 Orlando, Florida 32802

Docket for Case No: 81-002545

Orders for Case No: 81-002545