Judges: W. MATTHEW STEVENSON
Agency: Department of Business and Professional Regulation
Latest Update: Jan. 29, 1986
Summary: Complaints of refusal to return deposit or close transaction, and misrepresentation, was dismissed for lack of competent substantial evidence.
85-3157.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, FLORIDA REAL )
ESTATE COMMISSION, )
)
Petitioner, )
)
vs. ) Case No. 85-3157
)
HARRY G. GORMAN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this case on December 9, 1985 in Ft.
Myers, Florida. The following appearances were entered:
For Petitioner: Arthur R. Shell, Jr.
Department of Professional Regulation
400 West Robinson Street Orlando, Florida 32801
For Respondent: Jack P. Pankow, Esquire
Post Office Box 580
Fort Myers, Florida 33902
The issue for determination at the final hearing was whether the Respondent violated the real estate licensing law by fraud, misrepresentation, concealment, false promises, dishonest dealing by trick, scheme or device, culpable negligence and/or breach of trust in a business transaction as alleged in the Administrative Complaint.
PROCEDURAL BACKGROUND
Petitioner served the Administrative Complaint on Respondent by certified mail on August 22, 1985. Respondent,
Harry G. Gorman, by letter dated September 5, 1985, disputed the allegations of fact contained-in the Administrative Complaint and requested a formal hearing, pursuant to Section 120.57(1), Florida Statutes (1983), before a hearing officer appointed by the Division of Administrative Hearings. This cause came on for
final hearing on December 9, 1985. At the formal hearing, Petitioner presented the testimony of three (3) witnesses and submitted Petitioner's Exhibits 1-6 for consideration.
Respondent, Harry Gorman, testified in his own behalf and submitted no documentary evidence. The Respondent submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the documentary evidence received, my observation of the witnesses while testifying and the entire record compiled herein, I hereby-make the following findings of fact:
Respondent, Harry Gorman, is presently, and has been since September 1982, a licensed real estate salesman in the State of Florida (license number 0229673).
Respondent is the owner of Lee County Property Exchange, Inc. Lee County Property Exchange, Inc. is organized for the primary purpose of buying and selling real estate lots. The company customarily buys a group of unimproved residential lots and sells them to "wholesalers".
Ms. Mary A. Bosley responded to a mass mail advertisement provided by Lee County Property Exchange. Thereafter, on March 31, 1983, Respondent, acting for Lee County Property Exchange as purchaser,, entered into two sales contracts for the purpose of buying two unimproved residential lots with Mary A. Bosley, as seller. Ms. Bosley was represented by counsel at the signing of the contracts.
The contracts provided that the purchase price for each lot would be $1,000. The transaction was to close on or before August 1, 1983. The transaction did not close as anticipated on August 1, 1983. From approximately August 22, 1983 to March 15, 1985, Respondent requested and was granted four six month extensions of the closing date. Ms. Bosley granted each extension because she wanted to sell the lots.
In accordance with the terms of the contracts between Ms. Bosley and Lee County Property Exchange, two $25.00 earnest money deposits (EMD) were to be held in escrow by Lehigh Title Company, Inc.
On April 21, 1983, Ms. Barbara Mast, president of Lehigh Title Company, received the two contracts with the accompanying
$25.00 EMD's and "opened a file". Ms. Mast was later informed that the Bosley contracts were "on hold".
on March 19, 1985, after the expiration of the final extension of closing date granted by Ms. Bosley, Mr. Burney J. Carter, Esquire, attorney for Ms. Bosley, mailed a letter to Mr. Gorman demanding return of the two $25.00 EMD's.
Lehigh Title Company did not receive a request from Ms. Bosley nor Respondent that the two EMD's be taken out of escrow. Neither Respondent nor Ms. Bosley received the two $25.00 EMD's back from Lehigh Title Company.
Respondent, upon speaking with a DPR investigator, did not agree to personally mail a check to Ms. Bosley, for the two
$25.00 EMD's, but stated that, in his view, Ms. Bosley was entitled to return of the money and that Lehigh Title Company was responsible for sending it to her.
Respondent failed to close the two transactions as purchases for economic reasons.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes (1983).
Because a significant number of real property transactions are facilitated by real estate brokers and salesmen, the legislature has found that it is necessary, in the interest of the public welfare, to assure the minimal competence of real estate practitioners in order to protect the public from potential economic loss. In furtherance thereof, the Department of Professional Regulation, Division of Real Estate is charged with the responsibility of regulating real estate brokers, salesmen and schools in the State of Florida. Chapter 475, Florida Statutes (1983)
Section 475.25, Florida Statutes (1983), provides in part that:
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
The Petitioner has alleged in the Administrative Complaint that Respondent has violated the above-cited provisions of law.
This proceeding is penal in nature and the burden of proof is on the Petitioner, Bach v. Florida Board of Dentistry,
378 So. 2d 34 (Fla. 1st DCA 1980); Balino v. Department of Health and Rehabilitative Services, 398 So. 2d 349 (Fla. 1st DCA 1977). Because the Respondent's license is at stake, the evidence to support the charges must be more substantial than that required to support conventional forms of regulatory action. Under these circumstances, Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA (1981) requires the evidence weigh as substantially on a scale suitable for evidence as the penalty does on the scale of penalties.
The Petitioner has failed to establish, by evidence compelling enough to satisfy the requirements of Bowling v. Department of Insurance, that Respondent is guilty of any of the allegations contained in the Administrative Complaint. The gravaman of the Administrative Complaint is Respondent's: (1) alleged refusal to return to Ms. Bosley the two $25.00 EMD's; (2) Respondent's alleged refusal to close without good reason; and
(3) his treatment of the sales contracts as listing agreements contrary to the intent and purpose of Ms. Bosley. The evidence established plainly and clearly that the two $25.00 EMD's were being held by Lehigh Title Company. The Respondent as purchaser had no independent duty to assure that the seller receive the escrow funds back from the escrow agent. The Petitioner did not show that the Respondent received the funds out of escrow or that he did any acts for the purpose of preventing Ms. Bosley from receiving the funds from Lehigh Title Company. Further, the Respondent presented sound business reasons for refusing to close the real estate transaction as purchaser. As with any contract, upon Respondent's failure to perform, Ms. Bosley was left with full Legal recourse for any breach of the conditions.
Lastly, the Petitioner failed to show by competent and substantial evidence, that Respondent treated the sales contracts as listing agreements contrary to the intent and purpose of Ms. Bosley. The Respondent and Ms. Bosley negotiated at all times at "arms length" as purchaser and seller, respectively. The
Respondent never entered into a fiduciary relationship with Ms. Bosley, and Ms. Bosley did not believe him to be acting in such capacity.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that a final order be issued finding the Respondent Harry G. Gorman, not guilty of the allegations contained in the Administrative Complaint.
DONE and ORDERED this 29th day of January, 1986 in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings This 29th day of January, 1986.
COPIES FURNISHED:
Arthur R. Shell, Jr., Esquire; Department of Professional
Regulation
400 West Robinson Street Orlando, Florida 32801
Jack J. Pankow, Esquire
P. O. Box 580
Ft. Myers, Florida 33902
Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Harold Huff Executive Director
Department of Professional Regulation
Division of Real Estate
400 West Robinson Street
O. Box 1900
Orlando, Florida 32802
APPENDIX
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
The parties were given 20 days from the date the original transcript was filed with the Division of Administrative Hearings in which to file their proposed findings. Petitioner failed to submit any proposed findings of fact within the specified time limits.
Rulings on Proposed Findings of Fact Submitted by the Respondent
Adopted in Findings of Fact 2, 3 and 4.
Adopted in Finding of Fact 10.
Partially adopted in Finding of Fact 8. The evidence was unclear as to whether the two $25.00 EMD's were in the escrow account up to the date of hearing.
Adopted in Finding of Fact 7.
Adopted in Finding of Fact 8.
Adopted in Finding of Fact 8, (noting the obvious typographical error in Respondent's failure to include the word "not" between "has" and "made").
Partially accepted in Findings of Fact 2, 3 and 4. Respondent's assertion that "Harry Gorman was not acting in his professional capacity as a licensed real estate salesman "is rejected as a conclusion of law and as unnecessary to a resolution of this case. The Respondent, as a licensed real estate salesman, could be subject to discipline for fraud, misrepresentation and/or breach of trust in a business transaction whether or not the fraud, misrepresentation or breach of trust occurred during the course of his "real estate activities".
Docket for Case No: 85-003157
Orders for Case No: 85-003157
| Issue Date |
Document |
Summary |
|
Apr. 15, 1986 |
Agency Final Order
|
|
|
Jan. 29, 1986 |
Recommended Order
|
Complaints of refusal to return deposit or close transaction, and misrepresentation, was dismissed for lack of competent substantial evidence.
|
