STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0650

)

DAWN MICHELLE MICHAELS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Lauderdale, Florida, on April 27, 1989 before the Division of Administrative Hearings by its designated Hearing Officer, Claude B. Arrington. The parties are represented as follows:

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

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

For Respondent: Neil F. Garfield, Esquire Suite 200

Envirwood Executive Plaza

5950 West Oakland Park Boulevard Lauderhill, Florida 33313

PRELIMINARY MATTERS

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of the allegations contained in an Administrative Complaint. Count I of the Administrative Complaint charges that Respondent engaged in fraud, misrepresentation, and other misconduct proscribed by Section 475.25(1)(b), Florida Statutes. Count II of the Administrative Complaint charges that Respondent failed to account for and deliver a deposit in violation of Section 475.25(1)(d), Florida Statutes.

At the hearing, Petitioner called one witness and introduced three documentary exhibits, all of which were received into evidence. Respondent testified on her own behalf and introduced two documentary exhibits, both of which were received into evidence. Petitioner filed no post-hearing documents. Respondent filed her proposed recommended order after the deadline given for the submission of post-hearing documents. Accordingly, Respondent's proposed recommended order was not considered.

FINDINGS OF FACT

1. Respondent is a licensed real estate salesman in the State of Florida, holding license 0443159. Respondent voluntarily placed her real estate salesman's license on inactive status on September 15, 1986. Her license was in inactive status at all times material hereto.

   
   

2. Respondent, as owner, advertised for sale a house she owned at 3201

   N.W. 100th Street, Miami, Florida. Gary Cooper visited the Respondent's property on November 11, 1987, in response to the Respondent's advertisement. Mr. Cooper agreed to buy the property during this visit.

   
   

3. On November 11, 1987, Mr. Cooper and Respondent entered into a contract whereby Mr. Cooper agreed to buy the house owned by Respondent for $68,000.00. As required by the terms of their agreement, Mr. Cooper paid to Respondent the sum of $1,000.00 upon executing the contract. Respondent deposited these funds in her personal bank account. Respondent took the house off the market when she entered into the contract with Mr. Cooper.

   
   

4. The contract signed by the parties on November 11, 1987, was a form contract, the terms of which were completed by Respondent. Respondent did not attempt to mislead or trick Mr. Cooper when she completed the terms of the contract. Respondent did not offer Mr. Cooper any advice and she did not try to pressure Mr. Cooper into signing the contract. Mr. Cooper read the contract before he signed it.

   
   

5. Mr. Cooper had difficulty obtaining the financing he required to close on the transaction. As a result, Mr. Cooper could not close on December 15, 1987, the date set by the contract as the closing date. Respondent extended the closing date in an attempt to assist Mr. Cooper by giving him more time to obtain his financing.

   
   

6. Toward the end of January of 1988, Respondent told Mr. Cooper that the deposit he had given was at risk if he could not get financing. Mr. Cooper did not respond to Respondent's telephone inquiries and did not get the financing he needed to close the transaction. Respondent was not responsible for Mr. Cooper's inability to get financing. In February of 1988, Respondent put her house back on the market. Respondent refused Mr. Cooper's subsequent demands for a refund of the deposit.

   
   

7. Mr. Cooper brought a civil action against Respondent in Dade County Court seeking damages, costs and attorney's fees based on Respondent's refusal to refund the deposit. Following default by Respondent, a judgment was entered against Respondent and in favor of Mr. Cooper for damages, costs and attorney's fees in the total amount of $4,282.50. This judgment has been paid in full by Respondent. Respondent is attempting to set aside the default and the judgment entered as a consequence of the default.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 475.25(1), Florida Statutes authorizes the Florida Real Estate Commission to take disciplinary action against a licensed real estate salesman when the licensee is found guilty of various specified acts, including the following:

   
   

   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 in this state or any other state, nation, or territory; has

   violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design, or scheme. It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public.

   (d) Has failed to account or deliver to any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value, including a share of a real estate commission, or any secret or illegal profit, or any divisible share or portion thereof, 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. ...

   
   

10. Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged in the administrative complaint, See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

11. Petitioner has failed to prove by clear and convincing evidence that Respondent is guilty of "fraud", "misrepresentation", "concealment", "false promises", "false pretenses", "dishonest dealing by trick, scheme, or device", "culpable negligence", or "breach of trust" as proscribed by Section 475.25(1)(b), Florida Statutes, and as charged by the Administrative Complaint. Instead, the greater weight of the evidence is that Respondent assisted Mr. Cooper in his efforts to obtain financing and did not mislead him in any way.

    
    

12. Section 475.25(1)(d), Florida Statutes, the other provision under which Respondent is charged, only applies when escrowed property is involved. The term "escrowed property", as used in the statute governing the discipline of real estate licensees, refers to property placed in the hands of a third party not involved in the transaction itself. Fleischman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983). The $1,000.00 deposit was never escrowed property. The check was given to Respondent as the owner of the property, not as a real estate salesman. Respondent, therefore, is not subject to discipline under Section 475.25(1)(d), Florida Statutes.

    
    

13. The legitimate contractual dispute presented by this case is not a proper subject of disciplinary action by a regulatory agency such as Petitioner. Such disputes are properly left for the Courts to resolve. Fleischman, supra.

    
    

14. The fact that Mr. Cooper secured a default judgment does not change the foregoing conclusion since there was no trial on the merits.

RECOMMENDATION

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

RECOMMENDED that the Administrative Complaint filed against Respondent, Dawn Michelle Michaels, be dismissed.

DONE and ENTERED this 22nd day of May, 1989, at Tallahassee, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1989.

COPIES FURNISHED:

Arthur R. Shell, Jr., Esquire Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Neil F. Garfield, Esquire Suite 200

Envirwood Executive Plaza

5950 West Oakland Park Boulevard Lauderhill, Florida 33313

Kenneth E. Easley, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate

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

Docket for Case No: 89-000650

Orders for Case No: 89-000650