STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION )

)

Petitioner, )

)

vs. ) CASE NO. 83-1809

)

R. F. PLOCKI & 3-D REALTY, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Orlando on April 24, 1984, on the general question of whether the Florida Real Estate Commission should discipline respondents R. F. Plocki (Plocki) and 3-D Realty, Inc. (3-D Realty).

For Petitioner: John Huskins, Esquire

Orlando, Florida

For Respondent: Kenneth J. Cotter, Esquire

Orlando, Florida

Initially, petitioner Department of Professional Regulation (Department) filed a four-count administrative complaint against respondents. No evidence was presented under Counts II and III, alleging improper handling of an alleged deposit in escrow. Therefore, the Department asserts only: (1) that respondents are guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes (1983); and (2) that respondents have failed to maintain an office in accordance with Section 475.22, Florida Statutes (1983)

FINDINGS OF FACT

1. Respondent R. F. Plocki is now, and was at all times alleged in the Department's Administrative Complaint, a licensed real estate broker, having been issued license No. 0160705. The last license issued to Plocki was as an active broker in care of 3-D Realty, Inc., 605 Northlake Boulevard, No. 82, Altamonte Springs, Florida 32701. Respondent 3-D Realty, Inc., is now, and was at all times alleged in the Department's Administrative Complaint, a corporate real estate broker, having been issued license No. 0208114. At all times alleged in the Department's Administrative Complaint, Plocki was licensed and operating as the qualifying broker and officer of 3-D Realty.

   
   

2. On or about July 28, 1982, respondents, in their capacity as real estate brokers, presented to J. B. Steelman, Inc., as listing real estate broker via Alice DeVries, salesman, a sales contract for the purchase by respondents' client, Frances Valentine, of certain real property owned by Malcolm Barber and

   Phyllis Barber, the clients of J. B. Steelman, Inc. Valentine is a personal friend for whom Plocki has handled various business transactions over the years. Because Valentine was in New York and the Barbers were anxious to get a contract, Plocki agreed to negotiate the sales contract for Valentine under a power of attorney.

   
   

3. During negotiation of the sales contract by Plocki, DeVries, and the Barbers, Plocki made clear and had reflected in the sales contract that the sales contract was contingent upon Valentine obtaining financing for part of the purchase price. Plocki also indicated that Valentine had not yet paid him the

   $500 deposit required under the sales contract, but that he would request the deposit when he mailed Valentine a fully executed copy of the sales contract.

   
   

4. Either on the day of the negotiations or a few days later, the sales contract was executed by the Barbers. Plocki telephoned Valentine the next day to advise her that she had a contract that required her to pay a $500 deposit and attempt to obtain the necessary financing. He agreed to pick up the necessary paperwork to apply for the financing at Flagship Bank and send the loan application papers and a copy of the sales contract to Valentine.

   
   

5. Valentine never sent the deposit, and Plocki did not follow up on the deposit. Instead, both he and the sellers primarily were concerned with the loan application. Around September 17, 1982, on the last of several telephone calls to the bank to check the status of the loan application, Plocki was advised that Valentine's application had been denied. The loan officer advised Plocki that Valentine already had been sent a copy of the denial and that Plocki should advise J. B. Steelman, Inc., of the denial of the loan application.

   
   

6. When Plocki telephoned J. B. Steelman, Inc., he learned that Alice DeVries had taken ill and that the transaction now was being handled by a new salesman, Charlyne Becker. Becker rejected Plocki's offer to contact the sellers to try to salvage the sale, saying it was her sale and that Plocki should stay out of it.

   
   

7. Approximately one week later, Becker began demanding release of the

   $500 deposit to the Barbers. Plocki refused, reasoning that Valentine was entitled to the deposit under the terms of the sales contract. Later, by the time Plocki was again asked about the deposit in the course of a Department investigation, Plocki believed that the deposit had been paid into 3-D Realty's escrow account and later paid back out to Valentine after she was unable to obtain financing. However, further inquiry revealed to Plocki and reminded him that the deposit never had been delivered to him or 3-D Realty at all.

   
   

8. Meanwhile, in late 1982, respondents' landlord required them to vacate their offices at 701 East Altamonte Drive, Altamonte Springs. Initially, the move was to be temporary, and respondents left their office equipment and signs in storage at the 701 East Altamonte Drive building. Later, respondents decided permanently to move their offices to Plocki's residence at 605 Northlake Boulevard, No. 82, Altamonte Springs. For approximately one month, respondents operated out of the 605 Northlake Boulevard office while their sign remained on the door of their old office in the 701 Altamonte Drive building. Then, for two to three weeks after respondents' official change of address to 605 Northlake Boulevard on or about February 1, 1983, respondents had no sign either at the 701 Altamonte Drive building or the 605 Northlake Boulevard office. Since then, respondents have had a sign in the front window of Plocki's residence at 605 Northlake Boulevard, but the sign is not affixed to the window and has fallen

   out of the window on occasion. Plocki indicates an intention to affix the sign to the window so that this will no longer happen.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 475.25(1)(b), Florida Statutes (1983), provides:

   
   

   1. The commission may deny an application for licensure, registration, or permit, or renewal thereof; may suspend a license or permit for a period not exceeding 10 years; may revoke a license or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and

      may issue a reprimand, or any or all of

      the foregoing, if it finds that the licensee, permittee, or applicant:

      * * *

      (b) 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 in this state or any other state, nation, or territory; 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; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct

      and committed an overt act in furtherance of such intent, design, or scheme.

      It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public.

      
      

      The evidence in this case does not establish a violation of any part of 475.25(1)(b).

      
      

10. Plocki and 3-D Realty acted as broker for the buyer. Later, Plocki acted as attorney-in-fact for the buyer in signing the sales contract under a power of attorney. Neither Plocki nor 3-D Realty was in a position of trust as to the sellers.

    
    

11. There was no fraud or misrepresentation on Plocki's part to induce the sellers to sign the sales contract before the buyer paid the $500 deposit. Plocki fully explained the circumstances to the sellers and advised the buyer of

    her obligations with respect to the deposit. (There was no culpable negligence, either.) Under the contract, it was the buyer's obligation to pay the deposit, not Plocki's.

    
    

12. Although 475.25(1)(b) makes the absence of damage or loss immaterial, it is noted that eventually the buyer probably would have been entitled to return of the deposit. The sales contract was contingent upon buyer's financing. After using due diligence under the circumstances, buyer was unable to obtain financing. Even if Plocki were bound by the deposit clause of the sales contract along with the buyer, failure to pay the deposit probably will result in no harm or damage to the sellers.

    
    

13. The Department also charges a violation of Sections 475.22 and 475.25(1)(c), Florida Statutes (1983), for failure to maintain a sign on or about the entrance of the principal office. The evidence shows that respondents temporarily were in violation of those statutes, but that the violation has been corrected.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order reprimanding respondents and assessing a $25 fine against each of them for violating Sections 475.22 and 475.25(1)(c), Florida Statutes (1983). 83-1809

RECOMMENDED this 15th day of June, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1984.

COPIES FURNISHED:

John Huskins, Esquire Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Kenneth J. Cotter, Esquire

119 Pasadena Place Orlando, Florida 32803

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Harold Huff Director

Division of Real Estate Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 83-001809

Orders for Case No: 83-001809