STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-811

)

DOROTHY B. MAZE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on May 16, 1983, in Hollywood, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Joel S. Fass, Esquire

626 Northeast 124th Street North Miami, Florida 33161

For Respondent: Edward Oddo, Esquire

2660 Northwest 32nd Street Boca Raton, Florida 33432

This matter arose on Petitioner's Administrative Complaint charging Respondent with misrepresentation, breach of trust and culpable negligence in a real estate transaction in violation of Subsection 475.25(1)(b), Florida Statutes (1979)(F.S.). Petitioner submitted proposed findings of fact which are incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. Respondent is a licensed real estate salesman and held such license at all times material to this proceeding. She was a salesman with Miller, Cowherd and Kerver, Inc. Realtors (MCK) at the time of the transactions relevant to this proceeding.

   
   

2. Complainant Loretta Fram listed her home in Ft. Lauderdale with Respondent and utilized her services as realtor in the purchase of a condominium apartment in Plantation. Another member of the MCK firm had previously prepared a contract for Fram to purchase the same condominium unit, but it was not executed.

   
   

3. The first condominium contract included a contingency clause that required return of Fram's $5,000 deposit if she did not sell her house prior to

   the condominium closing. This clause was not included in the contract prepared by Respondent even though Fram told her she could not make the condominium down payment due at closing without the proceeds from the sale of her house.

   
   

4. Respondent assured Fram the house would be sold in time or that she would work something out. Just prior to the scheduled condominium closing, Respondent arranged a 90-day "swing loan" for $15,000, since funds from the house sale were not forthcoming. Without this loan, Fram would not have been able to close on the condominium and may have had to forfeit her deposit.

   
   

5. The swing loan interest and fees amounted to $2,030. Fram paid this amount in January, 1980, on Respondent's assurance that she would be reimbursed. Respondent reduced such assurance to writing in a document dated January 8, 1980 (Petitioner's Exhibit 6). However, after three years, Fram has not been reimbursed.

   
   

6. At the time Fram attempted to move into her condominium unit, she was refused admittance by the condominium association. Respondent has reasonably relied on an acceptance the association issued in conjunction with the initial contract. The association thereafter held a meeting and ratified its earlier decision to accept Fram.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 475.25, F.S., provides in part:

   
   

   1. 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 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, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction. . .

      
      

8. Respondent was negligent in failing to protect Fram from possible loss of her deposit through omission of the contingency clause, or by insuring that Fram understood and would accept the short-term loan expenses. Respondent recognized her negligence and initially accepted her responsibility by promising to reimburse Fram for the $2,030 cost of the short-term loan. By failing to make the promised reimbursement, Respondent is guilty of misrepresentation and breach of trust in this business transaction, in violation of the above-quoted provision.

   
   

9. Respondent was not negligent in failing to confirm Fram's acceptance by the condominium association. Rather, the association erred in initially refusing to admit a buyer it had previously approved.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that Petitioner enter a Final Order suspending Respondent's license as a real estate salesman for a period of three years.

DONE and ENTERED this 12th day of July, 1983, in Tallahassee, Florida.

R. T. CARPENTER, 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 12th day of July, 1983.

COPIES FURNISHED:

Joel S. Fass, Esquire

626 Northeast 124th Street North Miami, Florida 33161

Edward Oddo, Esquire

2660 Northwest 32nd Street Boca Raton, Florida 33432

Harold Huff, Executive Director Division of Real Estate Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

William M. Furlow, Esquire Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000811

Orders for Case No: 82-000811