STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-6219

)

1. DANE STREETS, )

   t/a DANE STREETS REALTY, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on January 8, 1992, at Lakeland, Florida

   
   

   APPEARANCES

   
   

   For Petitioner: Steven N. Johnson, Esquire

   400 W. Robinson Street Orlando, FL 32801-1900

   
   

   For Respondent: O. Dane Streets, pro se

   Post Office Box 6852 Lakeland, FL 33807

   
   

   STATEMENT OF THE ISSUES

   
   

   Whether Respondent violated Section 475.025(1)(b), Florida Statutes, and, if so, what the appropriate penalty is.

   
   

   PRELIMINARY STATEMENT

   
   

   By Administrative Complaint dated August 22, 1991 the Department of Professional Regulation, Division of Real Estate, Petitioner, seeks to discipline the license of O. Dane Streets, as a real estate broker. As grounds therefor, it is alleged that Respondent prepared an offer to purchase real property which reflected that a $1000 earnest money deposit had been made when, in fact, no such deposit had been made. This is alleged to constitute fraud, misrepresentation, concealment, false premises, false pretenses, dishonest dealing and culpable negligence or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes.

   
   

   At the hearing, Petitioner called five witnesses, Respondent testified in his own behalf and five exhibits were admitted into evidence. There is no real dispute regarding the operative facts here involved. Accordingly, proposed findings submitted by Petitioner are accepted, except for the latter part of the second sentence of proposed finding #4 which is inconsistent with HO finding #4.

   Insofar as this proposed finding is inconsistent with finding #4 below, it is rejected.

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant hereto, O. Dane Streets was licensed by the Florida Real Estate Commission as a real estate broker having been issued License No. 0085710-1 for an address in Lakeland, Florida.

      
      

   2. In the Spring or early Summer of 1991, Nathan Price, a minister in Orlando, Florida, contacted Respondent to solicit Respondent's participation in representing Price's daughter, Melissa Howard, in purchasing real estate in Orlando. Price and Respondent have been business and social acquaintances for more than 10 years, and Price was helping his daughter and son-in-law in purchasing a home.

      
      

   3. The Howard's found a house they liked, Respondent obtained the listing information from the listing broker and prepared a contract for sale and purchase (Exhibit 1). As modified and accepted by all parties, this contract provided for a $1000 earnest money deposit to be held in escrow by Respondent's real estate company.

      
      

   4. In lieu of obtaining the deposit from Price or Howard, Respondent told Howard to give the earnest money deposit to the selling broker as all of the transactions were to be conducted in Orlando. The $1000 earnest money deposit was given to neither Respondent nor the listing broker, ReMax Southwest in Orlando. The failure of Respondent to follow up to insure that the earnest money deposit had been given to the listing broker in this transaction does not reach the status of fraud or dishonest dealing as Respondent had no such intent.

      
      

   5. Shortly before the August 21, 1991 closing date, Price advised Respondent that the mortgage lender was asking about the earnest money deposit. Respondent immediately obtained a cashier's check dated August 8, 1991 (Exhibit

      2) in the amount of $1000 which Price presented at the closing on August 21, 1991.

      
      

   6. In his testimony, Respondent acknowledged that he erred in not obtaining the earnest money deposit or failing to check to be sure the deposit had been made with the listing broker. Since Respondent is located in Lakeland and the property being purchased is in Orlando when the closing was held, Respondent thought everything would be simplified if the deposit was held by the listing broker.

      
      

   7. When the listing broker learned that the deposit of $1000 had never been received by Respondent and placed in escrow, a complaint was made to the Florida Real Estate Commission, and these proceedings followed.

      
      

   8. Respondent has held licenses from the Florida Real Estate Commission for some 20 years, and this is the first time any charges have been brought against his license.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   10. In these proceedings, Petitioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1977).

       
       

   11. Section 475.25(1)(b), Florida Statutes, which Respondent is charged with violating, involves fraud, misrepresentation, etc., all of which require a finding of wrongful intent or scienter. Morris v. Department of Professional Regulation, 474 So.2d 841, 843 (Fla. 5th DCA 1985)

       
       

   12. Although it can be said that Respondent was guilty of ordinary negligence in failing to ascertain that the earnest money deposit had been made, this is not gross negligence which is required to prove a violation of Section 475.25(1)(b).

       
       

   13. Accordingly, absent evidence to establish that Respondent intended to defraud or misrepresent the status of the earnest money deposit, Petitioner has failed to sustain its burden.

RECOMMENDATION

It is Recommended that a Final Order be entered finding O. Dane Streets not guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged.

ENTERED this 21st day of January, 1992, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1992.

Copies furnished to:

Steven N. Johnson, Esquire Darlene F. Keller Division of Real Estate Division Director

400 W. Robinson Street Division of Real Estate

Post Office Box 1900 400 W. Robinson Street

Orlando, FL 32801-1900 Post Office Box 1900 Orlando, FL 32801-1900

O. Dane Streets

Post Office Box 6852 Jack McRay, Esquire

Lakeland, FL 33807 Department of Professional Regulation

1940 N. Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE

Petitioner

vs. CASE NO. 0170763

DOAH NO. 91-6219

O. DANE STREETS t/a

O. DANE STREETS REALTY

Respondent

/

FINAL ORDER

On March 17, 1992, the Florida Real Estate Commission heard this case to issue a Final Order.

Hearing Officer K. N. Ayers of the Division of Administrative Hearings presided over a formal hearing on January 8, 1992. On January 22, 1992, the Hearing Officer issued a Recommended Order. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

The Petitioner filed Exceptions to the Recommended Order. A copy of said Exceptions is attached hereto as Exhibit B and made a part hereof. The Petitioner took exception to the Hearing Officer's Conclusion of Law, Paragraphs

4 and 5, pertaining to Respondent's guilt of culpable negligence. The Petitioner took exception to the Hearing Officer's Findings of Fact, Paragraphs

3 and 4, which state that a $1000 earned money deposit was to be held by the Respondent's real estate company, but was not given to either the Respondent or the listing broker.

After hearing arguments of counsel and upon a complete review of the record, the Commission adopts the Petitioner's Exceptions to the Hearing Officer's Recommended Order. The Commission cites specifically to the record (T32 - lines 14-16), in which the Respondent freely admitted to his errors and that the seller's broker was misled. The Commission concludes from this admission by the Respondent that negligence and breach of trust did occur. The Commission therefore adopts the Hearing Officer's findings of fact and conclusions of law, except as contained in the Petitioner's exceptions, and finds the Respondent guilty of culpable negligence and breach of trust, as charged in Count I of the Administrative Complaint.

Accordingly, the Florida Real Estate Commission ORDERS that O. Dane Streets pay an administrative fine of $500. The Commission further ORDERS that O. Dane Streets be placed on probation for a period of one (1) year, subject to the following terms and conditions:

1. The licensee shall notify the Division of Real Estate of any changes in address or employment.

   
   

2. The licensee shall not violate any provisions of Chapter 475, Florida Statutes, or Rules adopted by the Commission.

   
   

3. The licensee shall not be convicted or found guilty of a crime in any jurisdiction.

   
   

4. The licensee shall enroll in and satisfactorily complete a 30-hour broker management course within one (1) year of the filing date of this Order.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s.120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 17th day of March 1992 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: O. Dane Streets, t/a O. Dane Streets Realty, Post Office Box 6852, Lakeland, FL 33807; to Hearing Officer K. N. Ayers, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and to Steven W. Johnson, Esq., DPR, Post Office Box 1900, Orlando, FL 32802, this 3rd day of April 1992.

Darlene F. Keller Director

Docket for Case No: 91-006219

Orders for Case No: 91-006219