STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Florida Real )

Estate Commission, )

)

Petitioner, )

)

vs. ) CASE NO. 82-016

)

MARY P. FARRELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on September 9, 1982, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: J. Patrick Floyd, Esquire

PESCHIO, ROCKWOOD, EDELSTEIN & DUFFY

Suite 401, Blackstone Building 707 Southeast Third Avenue

Fort Lauderdale, Florida 33316 BACKGROUND

These proceedings began on December 9, 1981 when the Secretary of the Department of Professional Regulation filed an Administrative Complaint against the Respondent, Mary P. Farrell. On December 29, 1981 she forwarded to the Department a request for an administrative hearing on the allegations of the Complaint. By a letter dated January 4, 1982 the matter was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. After two continuances that hearing was scheduled for and held on September 9, 1982.

At the final hearing Petitioner offered Exhibits 1, 2 and 3 which were received into evidence. Respondent offered Exhibits A through H which were also received in evidence. The transcript of these proceedings was filed in the Division of Administrative Hearings on September 17, 1982. Respondent has filed proposed Findings of Fact. To the extent that the proposed findings are not reflected in this Order, they are rejected as either being not supported by the

weight of admissible evidence or as being irrelevant to the issues determined here. Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982).

FINDINGS OF FACT

1. During December of 1979, Fred H. Greene and his wife Marie L. Greene, decided to sell their residence located in St. Augustine, Florida. They listed the property with Respondent for a selling price of $55,000.

   
   

2. Ms. Farrell holds a real estate salesman's license issued by the Florida Real Estate Commission. At all times pertinent to this case she has been so licensed.

   
   

3. In January 1980, Ms. Farrell presented an offer to purchase the Greene's home for $50,000. They agreed to the offer and entered into a Contract for Purchase and Sale on January 15, 1980.

   
   

4. In the course of discussing how to structure the financing of the sale, Ms. Farrell suggested that the Greenes take back a $6,000 second mortgage from the purchasers, Harry and Margaret Carlyle.

   
   

5. Mr. Greene wanted to know from Ms. Farrell how much in proceeds he would receive when the parties closed the sale. She made the following calculations:

   
   

   $50,000.00	Purchase Price
   -$31,000.00	Greene's First Mortgage held	by McCaughn
   $19,000.00
   $19,000.00
   -$ 3,562.00 ----------- $15,438.00	Commission and Closing Costs tary Stamps, Abstract Cost)	(Documen-
   $15,438.00
   +$ 8,490.00	(Six Thousand Dollars Second	Mortgage

   ----------- and Interest thereon at 10 percent)

   $23,928.00

   
   

   These computations are incorrect. At closing the $6,000 second mortgage was not to be part of the cash distribution to the Greenes, but, was a debit against the cash proceeds.

   
   

6. The above incorrect calculation is the only error made by Respondent in discussing the sales transaction with the Greenes. At all times relevant the Greenes were properly apprised of all the other details concerning the sale of their house.

   
   

7. The miscalculation was an honest mistake on the part of Ms. Farrell. There is no evidence that it was made with the intent of misrepresenting anything to the Greenes. Furthermore, there is no evidence that the miscalculation was made negligently.

   
   

8. Neither Ms. Farrell nor the Greenes knew she had made a mistake until the closing which was held on March 24, 1980.

9. During the closing Ms. Judy White who was the closing agent for St. Johns Title and Abstract Company began to explain to the Greenes their closing statement. Mr. Greene pushed the statement away and said, "That's not what I expected to get." The statement showed that his cash proceeds were $9,144.46. The statement properly reflected the $6,000 second mortgage as a sellers' debit. Ms. White explained the statement to Mr. Greene several times, but he still did not understand why the cash proceeds did not equal the amount computed for him by Ms. Farrell during their early discussion. Mr. Greene was visibly upset and directed several angry questions towards Ms. Farrell concerning the discrepancy. Because she felt a need to control the closing proceedings, Ms. White vigorously intervened and attempted to answer Mr. Greene's questions.

   
   

10. Both of the buyers who were also present at the closing urged the Greenes not to sign the closing documents if they had any questions or doubts about the sale.

    
    

11. During the closing Ms. Farrell was not aware of her original mistake in miscalculating the closing proceeds.

    
    

12. Neither the Carlyles, Ms. Farrell or Ms. White did anything to influence Mr. Greene to execute the closing documents. During his heated discussion of the figures with Ms. White, Mr. Greene's wife repeatedly urged him to be quiet and execute the documents. At one point she said, "Oh sign it, you son-of-a-bitch." Finally Mr. Greene relented and executed all of the closing documents which were then recorded. The proceeds of the sale were then disbursed.

    
    

13. Prior to executing the closing documents the Greenes were fully apprised of all significant financial facts concerning the sale of their home to Harry and Margaret Carlyle.

    
    

14. During the foregoing transaction Ms. Farrell represented the Greenes as their real estate salesperson. She did not become aware of the mistake in her calculation of the closing proceeds, until she discussed the matter with her real estate sales manager after the closing.

    
    

15. Ms. Farrell has an excellent reputation for competency in the real estate profession, both in St. Johns County where the above transaction took place and in Broward County where she is now employed.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

    
    

17. The Administrative Complaint charges Respondent with a violation of Section 475.25(1)(b), Florida Statutes by being guilty of culpable negligence and misrepresentation in the course of her representing Fred H. Greene 1/ in the sale of his home. Section 475.25(1) provides:

    
    

    The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administra- tive 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, misrepresen- tation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach

    of trust in any business transaction in this state....

    
    

18. The facts of this case show nothing more than an honest mistake in computing the amount of cash the Greenes would receive at their closing. There is no evidence that the sellers took any action in reliance on Ms. Farrell's mistake. The effects of this mistake were corrected at the closing prior to the time the Greenes executed any documents whatsoever. No proof was offered to show that Ms. Farrell's conduct in representing the Greenes fell below the standard of care owed to real estate clients by licensed real estate salesmen. It is inconceivable that every mistake regardless of how inconsequential made by a licensee should give rise to discipline pursuant to Section 475.25, Florida Statutes. Cf. Flaig v. Pest Control Commission, 213 So.2d 471, 474 (Fla. 1st DCA 1968). The undersigned is frankly unable to understand why the instant Administrative Complaint was brought against Respondent.

RECOMMENDATION

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

That the Administrative Complaint filed against Respondent, Mary P. Farrell be DISMISSED.

DONE and RECOMMENDED this 18th day of October, 1982, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings 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 October,1982

ENDNOTE

1/ Curiously, the Complaint made no mention of Marie L. Greene, a joint owner of the property.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

J. Patrick Floyd, Esquire PESCHIO, ROCKWOOD, EDELSTEIN,

& DUFFY

Suite 401, Blackstone Building 707 Southeast Third Avenue

Fort Lauderdale, Florida 33316

William M. Furlow, Esquire Department of Professional Regulation Legal Division

400 West Robinson Post Office Box 1900

Orlando, Florida 32802

Carlos B. Stafford Executive Director

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 33802

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000016

Orders for Case No: 82-000016