STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ESTATE )

)

Petitioner, )

)

vs. ) CASE NO. 84-4120

)

MARIA M. DRUMMOND MULGRAVE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on April 23, 1985, in Miami, Florida. The parties requested, and were afforded, 15 days following receipt of the transcript to submit proposed recommended orders to the undersigned for consideration in preparation of this Recommended Order. 1/

APPEARANCES

For Petitioner: Arthur R. Shell, Jr., Esquire

Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

For Respondent: Maria M. Drummond Mulgrave, pro se

Post Office Box 2350 Miami, Florida 33055

ISSUES

The issues presented herein are whether or not the Respondent, Maria M. Drummond Mulgrave, failed to account and deliver monies received in a trust or escrow bank account monies received as a deposit for realty in a real estate transaction in violation of Subsections 475.25(1)(d), Florida Statutes, and by reason thereof, Respondent engaged in acts and/or conduct amounting to fraud, is representation, 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.

INTRODUCTION AND BACKGROUND

By its two-count administrative complaint filed herein, Petitioner, Department of Professional Regulation, Division of Real Estate, seeks to take disciplinary action against

Respondents Oswald S. Welsh and Maria M. Drummond Mulgrave. 2/

Respondent, Maria M. Drummond Mulgrave, executed an election of rights form and requested a formal proceeding pursuant to Section 120.57(1), Florida Statutes.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

   
   

2. During times material herein, Respondent, Maria M. Drummond Mulgrave, was a licensed real estate salesperson and has been issued license number 0396817. Respondent's last issued license was as a salesperson and she worked through the entity, Welsh International Realty, Inc., 4684 NW 183 Street, Miami, Florida 33155.

   
   

3. Respondent, in her capacity as a salesperson, on January 31, 1984, was the selling agent who executed a purchase, sales contract and receipt for deposit for purchasers Michael A. and Marjorie Bucknor for a residence situated at 240 NW 203 Terrace, Miami, Florida. The seller of that property was Equitable Relocation Management Corporation (Equitable). Equitable executed the sales contraction February 7, 1984. On January 31, 1984, Respondent Mulgrave received in trust a $1,000 earnest money deposit which was held in an escrow account by her broker, Welsh International Realty, Inc.

   
   

4. In connection with the January 31, 1984 sales contract, the purchasers were to tender to the Respondent an additional $6,500 deposit within 5 days of acceptance by the seller or, in this case, on February 12, 1984, inasmuch as Equitable approved and executed the sales contract on February 7, 1984. (Petitioner's Exhibits 1 and 2) 3/

   
   

5. Petitioner has alleged that the listing agency, Associates Realty Company (Associates), requested from the Respondent on March 11 and March 19, 1984, an escrow letter verifying that the additional escrow deposits had, in fact, been made. It is also alleged that the Respondent verbally assured Associates that the entire deposit of $7,500 was in escrow and that the sale would close, but Respondent did not then provide Associates the promised escrow letter.

   
   

6. It is also alleged that Associates relied upon Respondent's statements that the deposit was in escrow and that it was not until approximately April 17, 1984 that Respondent admitted to Associates Realty that only $1,000 was in escrow. (Petitioner's Exhibit 3)

   
   

7. As stated, Respondent Oswald S. Welsh entered into a stipulated settlement and is no longer a Respondent in these proceedings. Sometime following the execution of the sales/deposit receipt contract by the Bucknors and the sellers, Equitable Relocation Management Corporation, by its agent Claire Smith, Respondent Mulgrave left the Miami area and gave the pending sales contracts to her sponsoring broker, Oswald S. Welsh.

   
   

8. Marcia Mize was, during times material herein, the processing supervisor for the listing agency, Associates Realty. Once Ms. Mize began processing the Bucknor contract, she commenced making inquiries from Welsh International Realty, Inc. trying to get the needed verifications of income,

   etc. to the mortgage company such that the purchasers could be processed and a commitment letter issued. Ms. Mize made several oral requests of Welsh International Realty for verification of the escrow deposits from approximately February 7, 1984 through March 9, 1984. On March 17, 1984, Ms. Mize learned (from Respondent) that Welsh Realty only had $1,000 in escrow.

   
   

9. Oswald S. Welsh, the broker for Welsh International Realty, Inc., by letter dated January 31, 1984, advised Associates Realty that Welsh was holding

   $1,000 in escrow from the Bucknors toward the purchase of the subject property.

   
   

10. Marcia Mize was unsure if Respondent Mulgrave advised her that she had the additional $6,500 in deposits. Ms. Mize testified that she spoke with several secretaries employed by Welsh International Realty but she was unable to verify that she determined that it was Respondent Mulgrave who advised that the additional $6,500 deposit was in escrow with Welsh International Realty, Inc.

    
    

11. Respondent Mulgrave later determined that the Bucknors were having marital and financial problems and, as a result, were unable to close on the transaction as agreed in the purchase/sales contract.

    
    

12. Respondent Mulgrave denies that she, at any time, advised Marcia Mize of Associates Realty that she had the $6,500 which represented the balance of the remainder of the downpayment by the Bucknors in the purchase of the residence from Equitable. Respondent Mulgrave turned this transaction over to her sponsoring broker, Oswald S. Welsh when she had to leave the Miami area to attend to some pending family business. The Bucknors did not give Welsh International Realty, Inc. the remaining $6,500 escrow deposit which represented the remainder of their downpayment toward the purchase of the subject residence.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

14. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

15. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

    
    

16. Respondent, a licensed real estate salesperson, is subject to the disciplinary guides of Chapter 475, Florida Statutes. Section 475.25(1)(d), Florida Statutes, authorizes the Petitioner to take disciplinary action against a licensee who has:

    
    

    ". . . failed to account or deliver to any person, . . . any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value . . . which has come into his hands and which is not his property or which he is not in law or equity entitled to retain under the circumstances.

    . . ."

17. As stated hereinabove, the Bucknors did not tender to the Respondent the additional $6,500 escrow deposit which is the source of the allegations of this controversy. Since there is no evidence of a failure to account or deliver monies received, insufficient evidence was offered herein to establish that the Respondent, Maria M. Drummond Mulgrave, failed to "account and deliver" monies received in violation of Subsection 475.25(1)(d), Florida Statutes, as alleged in the administrative complaint.

    
    

18. Insufficient evidence was offered herein to establish that the Respondent, Maria M. Drummond Mulgrave, is 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 Subsection 475.25(1)(b), Florida Statutes, as alleged in Count II of the complaint filed herein.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the administrative complaint filed herein against Respondent, Maria M. Drummond Mulgrave, be DISMISSED.

RECOMMENDED this 18th day of September, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL

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 September, 1985.

ENDNOTES

1/ The parties waived the time requirement that are commended order be entered herein within thirty days following the close of the hearing or after receipt of the transcript. (TR page 158) The parties' proposed findings were considered pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

2/ Respondent, Oswald S. Welsh, was the licensed real estate broker who worked with Respondent, Maria M. Drummond Mulgrave as the sponsoring broker.

Respondent Welsh entered into a stipulated settlement, voluntary relinquishment of license with the Petitioner, and was therefore dismissed as a Respondent in this cause based on a notice to the undersigned Hearing Officer filed by Petitioner's counsel.

3/ Contrary to the allegation in paragraph 6 of the Administrative Complaint filed herein, a review of the sales and deposit receipt contract reveals that the additional $6,500 deposit was to be tendered within 35 days after acceptance of the contract by the seller as opposed to the 5 day allegation as alleged in the complaint filed herein. (Petitioner's Exhibit 2 and paragraph 6 of the administrative complaint filed herein.)

COPIES FURNISHED:

Arthur Shell, Jr., Esquire Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

Maria M. Drummond Mulgrave Post Office Box 2350 Miami, Florida 33055

Harold Huff Executive Director

Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-004120

Orders for Case No: 84-004120