STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Petitioners, )

)

v. ) CASE NO. 85-0389

)

CAROL WHEELER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 24, 1985, in Orlando, Florida.

APPEARANCES

For Petitioner: James R. Mitchell, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: No appearance.

BACKGROUND

By administrative complaint filed on December 17, 1984, petitioner, Department of Professional Regulation, Division of Real Estate, has charged that respondent, Carol Wheeler, a licensed real estate salesman, had solicited and obtained a purchaser who entered into a sales contract in May, 1983 for the purchase of certain real property, that the purchaser gave respondent a check in the amount of $1,000 to pay for closing costs, that the space for the name of the payee in the check was left blank, that respondent thereafter inserted her own name as payee, and converted the check to cash for her own use and benefit, that the sales transaction never closed, and that respondent has failed to return the $1000 to the purchaser

despite repeated demands to do so. According to the complaint, this conduct violates Subsection 475.25(1)(b) and (k), Florida Statutes.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by petitioner on February 4, 1985, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated March 7, 1985, the final hearing was scheduled for May 9, 1985 in Orlando, Florida. At the request of respondent, it was rescheduled to June 24, 1985 at the same location.

At final hearing petitioner presented the testimony of Cornelia C. Whitaker, Donald G. Gallagher, Frank Fernandez, Hazel N. Young, Doris L. McCuen, Rosalyn R. Beabers, Evelyn Carper and Jewell Danner and offered petitioner's exhibits 1-8. All were received in evidence. Respondent did not appear at final hearing.

The transcript of hearing was filed on July 10, 1985.

Proposed findings of fact and conclusions of law were filed by petitioner on July 12, 1985. 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.

At issue herein is whether respondent's license as a real estate salesman should be disciplined for the alleged violations set forth in the administrative complaint.

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Carol Wheeler, held real estate salesman license number 0095135 issued by petitioner, Department of Professional Regulation, Division of Real Estate. When the events herein occurred, respondent was using her license with various real estate firms in Orlando, Florida.

   
   

2. On or about May 30, 1983, while employed as a salesman for Ralph Associates, Inc., respondent solicited and obtained a contract for sales and purchase from Evelyn B. Carper to purchase a mobile home in Ocoee, Florida, from Robert and Buelah Black. In accordance with the contract, Carper gave Wheeler a

   $1,000 cash deposit to be held in escrow pending the sale. The deposit was placed in the escrow account of Ralph Associates, Inc. The contract called for a closing date of May 23, 1984, or almost one year after the contract was executed, so that Carper would have time to "accumulate funds" necessary for the closing and to arrange suitable financing on the property.

   
   

3. On November 12, 1983, Wheeler visited Carper's place of employment and requested an additional $1,000 in cash. She said this was necessary because she was taxing the money to an attorney's office to get the transaction "moving," and because the closing would be held within a few weeks. She also instructed Carper to leave the payee blank on the check since she did not know to whom the check would be tendered. Carper obliged and gave Wheeler a check in the amount of $1,000.

   
   

4. Wheeler took the check, inserted her name as payee, and converted the same to cash. The proceeds were never deposited in any broker's escrow account, and were never used in - connection with the Carper transaction.

   
   

5. The transaction never closed since Carper was unable to obtain the necessary financing. Carper's original $1,000 deposit was returned by Ralph Associates, Inc., but despite repeated demands, Wheeler has never returned the $1,000 given to her by Carper in November, 1983.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. By converting to her own use the $1000 given to her by Carper, respondent is charged with violating two statutes. First, she is charged with 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. Secondly, she is charged with having failed to place with her registered employer the $1000 received in trust as required by Subsection 475.25(1)(k), Florida Statutes.

   
   

8. The evidence is clear and convincing that Wheeler has violated the foregoing statutes by causing the prospective buyer (Carper) to give her a check for $1000 for the purported purpose

of closing the sale, and then converting those funds to her own use. Despite repeated demands she has never returned those funds to the buyer. Given these circumstances, revocation of respondent's license is appropriate, and she should pay a 5500 administrative fine.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that respondent be found guilty of violating Subsections 475.25(1)(b and (k), Florida Statutes. It is further recommended that respondent's real estate salesman license be REVOKED and that a $500 administrative fine be imposed pursuant to Subsection 475.25(1), Florida Statutes.

DONE and ORDERED this 2nd day of August, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1985.

COPIES FURNISHED:

Ms. Carol Wheeler c/o Sterling Wheeler

309 Lawsona Drive Orlando, FL 32803

James R. Mitchell, Esq.

P. O. Box 1900 Orlando, FL 32802

Docket for Case No: 85-000389

Orders for Case No: 85-000389