) DPR CASE NO. 0035590
ROBERT W. BROWNING, )
Respondent. )
Notice was provided and a formal Section 120.57(1), Florida Statutes, hearing was held in Ocala, Florida, on December 11, 1984. Charles C. Adams presided as the hearing officer. This Recommended Order is being entered following receipt and review of the transcript proceedings which was filed with the Division of Administrative Hearings on December 28, 1984. Although the opportunity was presented, neither party submitted a proposed Recommended Order.
For Respondent: Steven R. Scott, Esquire
MAXWELL & SCOTT, P.A.
The issues in this case are those promoted by an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Robert W. Browning, licensed real estate broker. In the Administrative Complaint, Browning is accused of having committed various offenses in a real estate transaction involving Salvatore and Minnie Dellaria, in violation of various provisions within Section 475.25, Florida Statutes. The details of those allegations are more specifically discussed in the Conclusions of Law.
Robert W. Browning is the holder of a real estate broker's license issued by the Florida Real Estate Commission, and at all times pertinent to this case, held that license. The number of the license is 0112998.
Browning, during the relevant time period contemplated by the Administrative Complaint, which is the subject of this dispute, was optioning to buy certain property from Rutland Ranch Partnership, Sumter County, Florida.
The property at issue was known as Rutland Ranch Subdivision, Phase I. In effect, Respondent was selling the property within the subdivision. J. W. Morton Real Estate, Inc., of Inverness, Florida, served as exclusive listing agent of the property.
In March, 1982, a Mr. Dellaria looked at the property in the Rutland Ranch Subdivision, and an agreement was entered into, and which Salvatore Dellaria, and his wife, Minnie Dellaria, would purchase Lot 37 from R. W. Browning, the Respondent, as Seller. The transaction was to close on or before June 13, 1982. The property had been seen in March, 1982, and the Buyer executed the contract for sale and purchase on March 12, 1982. A copy of this contract for sale and purchase may be found as Respondent's Exhibit 1 admitted into evidence. A deposit of $1,000 was placed in the escrow account of J. W. Morton Real Estate. Dellaria hoped to use the property as a horse farm.
Subsequently, after discussion with Morton Real Estate, it was determined that a purchase would be made of two lots in substitution for Lot 37. Dellaria asked that someone within the Morton group choose the two lets, and Lots 33 and 34 were chosen. Again these lots were in the Rutland Ranch Subdivision, Phase I. Copies of the contract for sale and purchase related to Lots 33 and 34 may be found as Petitioner's Exhibit Nos. 2 and 3 respectively. Those lots are No. 33 as related to a contract between Respondent and Charles Dellaria, and Jennie Dellaria, his wife, and Lot 34, to the benefit of Salvatore Dellaria and Minnie Dellaria, his wife, with Browning being the Seller. The Buyer execution on Lot No. 33 was April 24, 1982, and the execution by the Buyer in Lot 34 was July 16, 182. The contemplated closing date for Lot 33 was on or before June 13, 1984, as had been the arrangement for Lot 37. The contemplated closing date for Lot 34 was October 1, 1982. Browning had acquiesced in the idea of the cancellation of the sale of Lot 37, and the substitution of Lots 33 and 34. From the point of view of the Morton real estate firm, the $1,000 security deposit for Lot 37 found in the escrow account of that firm would serve to secure the sale of both lots 33 and 34. This security is only shown on the contract for sale and purchase pertaining to Lot 33. There is an indication on the contract for sale and purchase pertaining to Lot 34 to the effect that 56,000 was held in R. W. Browning's escrow. No explanation was made in the course of the final hearing on the subject of whether this $6,000 was in fact placed in an escrow account with Browning. It was indicated that Dellaria received a refund of money invested in the purchase of the property in question. That evidence being unrefuted is accepted. More specifically, Morton, the principal within J. W. Morton Real Estate, Inc., established that the $1,000 amount which his firm held in escrow was refunded to Dellaria by Browning following a return of the money from the Morton Real Estate to Browning.
The refund circumstance occurred because Dellaria refused to close the transactions envisioned in the purchase of Lots 33 and 34. At the point of refusal, the elder Dellaria and his wife were going to close on both Lots 33 and 34, whereas initially, the elder Dellaria and his wife were to purchase one of the two lots and Dellaria's son and wife were to purchase the second lot. (Having reviewed the testimony and examined the documents, it is unclear whether Salvatore or Charles is the father, so no specific reference is made to the father or son by name.)
Dellaria, the father, asked that the closing dates for the two parcels be extended, and Browning accepted that extension. The father also desired the ability to either examine the property or have a member of his family look at the property before closing. In November, 1982, his daughter, inspected the two lots in question. In February, 1983, Dellaria indicated his intention to go forward to closing on the two lots and on February 3, 1983, arrangements were made for the closing. On April 19, 1983, Dellaria advised Morton that he did not wish to close the purchase of the two parcels because they were not suitable for his intended use, in the sense of not being "buildable" or "habitable". Dellaria was acting on information supplied ay another realtor who also had a building contracting business. This advice was erroneous in that the two parcels were suitable for habitation. Nonetheless, as stated before, the closing was not held as related to the two parcels, and earnest money or deposit money was returned to Dellaria. Browning did not attempt to avail himself of any of the default rights that might be pursued in keeping with the contract terms which allow the Seller to keep the escrow deposit as liquidated damages in the instance where the Buyer fails to perform the contract within the time specified.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action, pursuant to Section 120.57(1), Florida Statutes.
By the first count of the Administrative Complaint, Respondent is accused of acting as Seller and receiving from Salvatore and Minnie Dellaria, as Purchasers, $20,600 representing the balance of the total purchase price, in connection with the sale of two lets, Lots 33 and 34, and further, that the Dellarias have made numerous attempts to recoup that money beginning with June 15, 1983, and Browning refused to return the money. Having failed to return the money, Respondent is said to be guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, and breach of trust in a business transaction, in violation of Subsection 475.25(1)(b), Florida Statutes. The proof offered in this case does net establish a violation of that provision.
Count II accuses the Respondent under the same factual depiction as related to in Count I with having failed to account and deliver money in violation of Subsection 475.25(1)(d), Florida Statutes. Again, there is a failure of proof and no showing has been made that the Respondent violated that provision of law.
Finally, Count III makes reference to the matters pertaining to the failure to return $20,600, further refers to an order of suspension for six months, effective March 4, 1983, and states that in view of the facts related to the $20,600 circumstance and the existence of the suspension, that Respondent is guilty for a second time of a course of conduct on practices, which show that he is so incompetent, negligent, dishonest or untruthful, that money, property, transactions and rights of investors, are those with whom he may sustain a confidential relationship may net be safety entrusted to him, and he is thereby in violation of Subsection 475.25(1)(o), Florida Statutes. This allegation is net proven, given the failure of proof related to the contention that Respondent did not return the $20,600.
Upon consideration of the facts found and the conclusions of law reached, it is, recommended
