STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 87-2646

)

CAROLYN L. RAY, ) T/A CAROLYN L. RAY REALTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal public hearing in the above-styled cause on November 2, 1987, in Jacksonville, Florida. The issue for determination is whether the Respondent's real estate license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this cause.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Larry L. Bryan, Esquire

1420 North Third Street Jacksonville, Florida 32250

BACKGROUND

By an Administrative Complaint dated May 27, 1987, filed with the Division of Administrative Hearings on June 22, 1987, and amended at hearing, the Petitioner seeks to revoke, suspend, or otherwise discipline the real estate license of Respondent. As grounds therefor, the Petitioner alleges that Respondent entered into a purchase agreement with certain buyers for the purchase of real property owned by the Respondent, accepting and depositing the binder check, and, upon the transaction failing to close, refusing to return the deposit, in violation of Section 475.25(1)(b), Florida Statutes.

At the time scheduled for the hearing, the Respondent filed a Motion to Dismiss Amended Administrative Complaint. A ruling on the motion was reserved. After reviewing argument of counsel and the record in this cause, the Motion to Dismiss Amended Administrative Complaint is DENIED.

In support of its charges, the Petitioner presented the testimony of Kenneth Pelczar. Petitioner's Exhibits 1 and 2 were received into evidence. Respondent testified on her own behalf but did not offer any documentary evidence.

The parties submitted post-hearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times relevant to this proceeding, Respondent was a licensed real estate broker in the State of Florida having been issued license number 0072124.

   
   

2. On or about September 6, 1986, the Respondent as seller/owner and Kenneth and Alicia Pelczar as purchasers entered into an agreement for the sale and purchase of Lot 10, Bowden Acres Subdivision, located in Duval County, Florida for the total purchase price of $79,000.

   
   

3. Upon execution of the agreement, the purchasers deposited the sum of

   $1,500.00 with the Respondent which was to be part of the down payment, provided the sale of the property was finalized. The check from the Pelczars was cashed by the Respondent on October 24, 1986. The agreement provided remedies to both the seller and the purchasers if either party defaulted. Under the agreement no commission was to be paid on the sale of the property.

   
   

4. The Pelczars were aware that the Respondent owned the property and that they were dealing with her as the owner, not as a real estate broker.

   
   

5. The deposit was not paid to Respondent as a real estate broker to be held in trust but was paid to Respondent as part of a down payment to be applied to the total purchase price, if the transaction closed, and subject to being retained as liquidated damages if the purchasers defaulted under the agreement.

   
   

6. The Respondent suffered financial difficulties, and on November 19, 1986, the bank foreclosed on several parcels of property owned by the Respondent, including the property Respondent had under contract with the Pelczars. However, the bank gave Respondent written authority to go forward with the sale to the Pelczars. The reason for the Pelczars' refusal to close the transaction on November 14, 1986, is not clear but they refused and demanded the return of the deposit.

   
   

7. Respondent retained the deposit under the default clause of the agreement, and has refused to return any portion.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. It is the Respondent's contention that since she was selling her own property and no commission was being charged Section 475.011(2), Florida

   Statutes exempts her from the provisions of Chapter 475, Florida Statutes. If Respondent was not licensed as a real estate broker under Chapter 475, Florida Statutes, her contention may have some merit. However, upon being licensed as a real estate broker under Chapter 475, Florida Statutes, Respondent's license is subject to discipline under Section 475.25, Florida Statutes, notwithstanding that she may be selling her own property without charging a commission. Sellars

   v. Florida Real Estate Commission, 380 So.2d 1052 (2 DCA Fla. 1979).

   
   

10. Section 475.25(1), Florida Statutes empowers the Florida Real Estate Commission (Commission) to revoke, suspend or otherwise discipline the license of a real estate broker if she is found guilty of any one of these enumerated acts listed in Section 475.25(1)(a-p), Florida Statutes.

    
    

11. Section 475.25(1)(b), Florida Statutes provides in pertinent part as follows:

    
    

    (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... has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, expressed, or implied, in a real estate transaction...

    
    

12. In a disciplinary proceeding, the burden is upon the agency to establish facts upon which the allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). The Petition has failed to sustain its burden of proof. While the Pelczars may have cause for civil action in Respondent's refusal to return the deposit, under the facts established in this cause there has been no violation of Section 475.25(1)(b), Florida Statutes.

RECOMMENDATION

Based upon the Findings of Fact, Conclusions of Law the evidence in the record and the demeanor and candor of the witnesses, it is

RECOMMENDED that the Commission enter a Final Order DISMISSING the Amended Administrative Complaint filed herein.

Respectfully submitted and entered this 15th day of December, 1987, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 Decemeber, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2646

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 Petitioner in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 3.

4. Adopted in Finding of Fact 3 but clarified.

5. Adopted in Finding of Fact 6 but clarified.

6. The fact that the closing was to be on November 14, 1986, is adopted in Finding of Fact 6. The balance of paragraph 5 is rejected as not being supported by substantial competent evidence in the record.

7. The fact that the bank authorized the sale of the house after foreclosure is adopted in Finding of Fact 6. The balance of paragraph 7 is rejected as not supported by substantial competent evidence in the record with the exception of the fact that Respondent has not returned the deposit.

8. Rejected since it is a statement of Respondent's testimony rather than a finding of fact.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 3.

4. Adopted in Finding of Fact 3 but clarified. 5.-7. Adopted in Finding of Fact 6.

8.-9. Rejected since it is a statement of Respondent's and Kenneth Pelczar's testimony rather than a finding of fact.

1. Adopted in Finding of Fact 3.

2. Rejected since it is a statement of Respondent's testimony rather than a finding of fact.

COPIES FURNISHED:

Steven W. Johnson, Esquire

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Larry L. Bryan, Esquire 1420 North Third Street

Jacksonville, Florida 32250

Darlene F. Keller, Acting Director Division of Real Estate

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 87-002646

Orders for Case No: 87-002646