The Issue The issue is whether Respondents' real estate licenses should be disciplined on the ground that Respondents violated a rule and various provisions within Chapter 475, Florida Statutes, as alleged in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondents, Tracy Anne Hardman and Ruby Joyce Litton, were licensed as a real estate salesperson and broker, respectively, having been issued license numbers 0458811 and 0424762 by Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). Litton served as the qualifying broker/owner of Respondent, Carrabelle Realty, Inc., a corporation registered as a real estate broker and located at 104 West Highway 98, Carrabelle, Florida. The corporation holds license number 1008111, also issued by the Division. On December 14, 1995, Thomas E. Gavers, who resides in East Troy, Wisconsin, executed a contract offering to purchase a vacant lot on U. S. Highway 98 in Franklin County, Florida, from John M. Brannen for the price of $22,000.00. After a counteroffer was made by Brannen raising the price to $25,000.00, the contract was accepted by Gavers on January 6, 1996. It can be inferred from the evidence that Gavers was an experienced investor since he also owned "quite a bit of other property" in the county. The contract called for Gavers to pay $500.00 as an earnest money deposit, to be held in escrow by Respondents. The contract further provided that the transaction "shall be closed on or before Feb. 15, 1996, unless extended by adding an addendum to the contract." A special condition added by Gavers provided that the "contract [is] contingent on [the] lot being buildable and [the buyer] obtaining [a] permit to fill [the] lot and build [a] driveway." Finally, paragraph 17 of the contract provided in part that if the buyer "fails to perform any covenants of this contract within the time specified, all deposits shall be forfeited." Hardman was the seller's agent in the transaction. At some point in the process, but probably when the contract was signed, Gavers sent Hardman a note which asked her to "[c]heck to see if lot is buildable & permit is okayed to fill lot & build driveway before spending monies to [sic] survey & title ins." Although paragraph 16 of the contract clearly provided that this responsibility fell upon the buyer, Hardman undertook the process of assisting Gavers since he was then residing in Wisconsin, and her only means of communicating with him was by telephone or mail. In doing so, Hardman made clear that she would assist the buyer as much as possible, but it was the buyer's responsibility to actually secure the permits. Because of time constraints in attempting to secure the information necessary to satisfy the special condition, it was necessary for Gavers to extend the closing date to March 15, 1996. This was accomplished by an addendum to the contract executed by the parties around February 14, 1996. After expending a considerable amount of time and effort in assisting Gavers, Hardman eventually obtained most of the information pertaining to requirements for filling and building on the lot. She learned, however, that a permit would be required from the U. S. Army Corps of Engineers in order to fill the lot. Before that federal agency would even inspect the lot to see if it was permittable, it was necessary that the lot be surveyed. Based on the foregoing advice, Hardman ordered a survey for a cost of $150.00. The survey was performed on or about February 7, 1996. Although Respondents paid for the survey when it was performed, they were ultimately reimbursed for this expense from Gavers' deposit. Hardman did not advise Gavers in writing that a survey was being ordered; however, Litton believed that Gavers was notified of such action by telephone, and this assertion has been accepted. This testimony is especially credible since Gavers had just authorized Hardman to spend $85.00 to file a septic tank permit application with the County. In addition, notwithstanding the instructions in his note that Hardman was not to spend any money until a permit was actually obtained, Gavers subsequently told Hardman to "proceed" and "keep going" in her efforts to help him obtain a permit. Therefore, Hardman was not culpably negligent in ordering the survey, and she did not breach her trust in the transaction by doing so. After the property was inspected by the federal agency, Hardman learned that it would be necessary for Gavers to personally fill out a portion of the application for a permit showing the type of filling and construction he desired and to return it with a filing fee to the agency's Jacksonville office. Gavers obtained the necessary documentation for Gavers to complete, and she filled in a portion of the form. The packet was then mailed to Gavers on a date not of record, but probably before March 15, 1996, with instructions that he needed to complete the application in order to obtain a permit. Gavers claims that he "wasn't aware of" receiving it, but his testimony is not found to be credible. He declined to complete the application, which would have satisfied his contingency request and allowed the contract to close. From that point on, he also stopped communicating with Respondents. The time for closing the contract expired on March 15, 1996. Although Gavers had probably breached the contract by that date by failing to make any reasonable effort to satisfy the contingency, as required by paragraph 16 of the contract, he telephoned Hardman on an undisclosed date and asked that she obtain another extension of time. The seller agreed to a second extension, and a second addendum to the contract was eventually prepared and executed by the seller on April 29, 1996, which extended the closing date to May 31, 1996. The addendum was then faxed to Gavers for his signature. Although Gavers acknowledged receiving the document, he says he did not receive it "until it was about ran [sic] out," he did not want to make a decision on purchasing the property "that quick," and in any event, it was the realtors' responsibility, and not his, to obtain the permits. He declined to respond in any fashion to Respondents. During this same time period, Litton and Hardman repeatedly attempted to contact Gavers by telephone and mail, and in March, April, and May they left "numerous" telephone messages with Gavers' daughter at his Wisconsin home. Although Gavers says he returned every telephone call, his testimony is not deemed to be credible, and it is found that he failed to return any calls. He also claimed that he visited Florida sometime that spring and spoke to Hardman, and that she was pressuring him into making a decision. However, Respondents established that Gavers never returned to Florida to speak with them after the process began, and their testimony has been accepted on this issue. By this time, the seller's property had been tied up for many months, and Brannen had another buyer ready to purchase the property for $10,000.00 more than Gavers had offered. After hearing nothing from Gavers for months, despite continued efforts to contact him, in August 1996 Litton mailed Gavers a Release From Sales Contract, which provided that Gavers would "be released from Contract For Sale, dated 12-14-95," and that he understood that he would "forfeit any earnest money deposit [he] had given." Gavers acknowledged receiving this document, but like the other messages and packets of documents, he declined to respond in any fashion. According to Gavers, he had been "patiently" waiting for a return of his deposit, and that after receiving the release, he immediately filed a complaint with the Real Estate Commission (Commission) seeking a return of his money. However, it was established that his complaint was not filed until almost two years later. In addition, the evidence shows that Gavers never once requested that Respondents return his money or even hinted to them that he thought he was entitled to a refund. Gavers insisted that he "cooperated" with Respondents and "did everything [he] could" to assist Hardman in securing the information necessary to satisfy the contingency in the contract. This assertion has been rejected as not being credible. To the contrary, Gavers refused to even communicate with Respondents, and he failed to take even minimal action to satisfy his responsibility under the contract. On the reasonable belief that Gavers was not making a claim on his deposit, and that he had failed to fulfill his obligation under the contract, on September 13, 1998, Litton issued checks in the amount of $172.73 to Hardman and herself from Gavers' deposit. A part of that was used to reimburse Respondents for the expenses incurred in having a survey performed. The remaining part of the deposit, $172.74, was issued to the seller on October 21, 1996. In making this disbursement, there was no intent on the part of Litton and Carrabelle Realty, Inc. to trick or deceive the buyer, breach their trust in the transaction, or otherwise commit an unlawful act. Gavers never made a demand for his deposit at any point in the process, and he had failed to make a reasonable effort to satisfy the contingency. Under these circumstances, there was no reasonable doubt in Litton's mind, nor should she have had one, as to who was entitled to the $500.00 deposit, and she was not confronted with conflicting demands for the money. Therefore, she was under no obligation to send Gavers a letter by certified mail requesting that he respond within a date certain or that his deposit would be forfeited. Likewise, there was no responsibility on Litton to request a disbursement order from the Commission. After Gavers defaulted on the contract, Brannen sold his lot to another buyer. The new owner satisfied all requirements necessary to build on the lot, and he thereafter built a driveway on the lot and constructed a new dwelling. It is clear, then, that the lot was "buildable," and a permit could be obtained "to fill [the] lot and build [a] driveway," which would have satisfied the contingencies in Gavers' contract. Respondents have never been the subject of prior disciplinary action. In addition, Hardman and Litton are associated with a small real estate firm in a small community, and the imposition of an administrative fine would create a financial hardship. Finally, throughout this process, Respondents acted in good faith; they cooperated with the Division; and they expended considerable time and effort in attempting to assist a buyer who refused to return calls, acknowledge mail, or fill out the necessary documentation that was required to obtain a permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order dismissing the administrative complaint, with prejudice. DONE AND ENTERED this 31st day of December, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1998. COPIES FURNISHED: James Kimbler, Acting Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Ghunise Coaxum, Esquire 400 West Robinson Street Suite N-308 Orlando, Florida 32801-1772 Tracy Ann Hardman 865 CC Land Road Eastpoint, Florida 32328 Ruby J. Litton Post Office Box 490 Carrabelle, Florida 32322 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto James E. Black and Jim Black and Associates, Inc. were registered as real estate brokers as alleged. Various parties, as alleged in the Administrative Complaint, entered into contracts with Lawrence Edwin Construction (Edwin) to have houses built on the buyers lots. All of these individuals (and couples) saw ads in a Tampa paper listing a price for a house to be built on buyer's lot with floor plan shown in the ad with a price below prevailing prices. These people contacted Edwin and entered into contracts negotiated by H. H. Howard, who was hired by the construction company to sell these houses to be built. James E. Black was general manager at Edwin, and apparently made all final decisions affecting the company, although he claimed no ownership in the company. No evidence was presented to rebut Black's testimony that he owned no stock in Edwin. Floyd B. Long held a general contractor's license and associated himself with Black and the construction company as the qualifying contractor for the company. Permits for these houses started was obtained under the authority of Long's license. These contracts entered into were standard form contracts between the buyer and Lawrence Edwin Construction Company, the builder, whereby the latter agreed to build a house pursuant to a given plan on the buyer's lot for a specified sum. The contract provided for the buyer to make a 10% down payment when the contract was executed, 20% of the total price on the pouring of the slab, 40% of total price when the roof is dried in, 25% of total price when kitchen cabinets are installed, and the balance upon substantial completion and acceptance. All payments were payable to Lawrence Edwin Construction Company and generally delivered to Howard who gave them to Black for deposit. No separate bank accounts were established for each house to be built, and no funds received were placed in escrow. Bruce Carter entered into a contract with Edwin to build a house on Carter's lot for $39,000 (Exhibit 1). Carter made a $500 down payment and a $2500 payment to cover items not on standard plan, arranged financing, and one draw in the amount of $1942.75 was also paid. At this time, the house was at the drying in stage and considerably later in progress than Carter had been led to expect. About this time, Carter became dissatisfied, Black was unhappy with the draw made payable to Carter and the construction company, both parties breached the contract, and no further work was done by the builder. Carter was unsuccessful in getting any refund of payments made to the builder. Robert Bowes entered into a contract with Edwin on September 24, 1984, to have a house constructed on his lot at Crystal River to use as a vacation home. The contract was negotiated by Howard, who was given a $200 deposit by Bowes. A few days later, Bowes made a down payment of $1974 expecting construction to start in January 1985. Although Bowes testified he was told by Howard that his down payment would be refunded if the house wasn't built, the standard contract makes no such provision. Construction on this house was never started, and Bowes' request for a refund was not honored. Roberta Puttie contracted to have Edwin construct a house on her lot, made $200 down payment when the contract was signed on August 24, 1984, and, after being told by Howard the construction would be expedited if additional money was paid, gave Howard an additional $3300 on October 3, 1984. When construction still did not commence, Mrs. Puttie went to the Edwin office where she met Black and told him she wanted construction started or her money back. Black visited Puttie's home adjacent to the site for the construction, had fill dirt brought in, and the crew came out to prepare the foundation, but they had the wrong blue print, and Mrs. Puttie called the county building inspector and had the work stopped before all the footing was dug. By this time, word was spreading that Edwin was not completing homes, and Mrs. Puttie attempted to get her payments returned, but was unsuccessful. No further work was done under this contract. Peter Rodriguez entered into a contract with Edwin to build a house on his lot, made a $500 down payment and arranged for financing, but work was never commenced under this contract. Inquiry by Rodriguez revealed that no building permit was ever pulled for this house. Ultimately, Rodriguez obtained a general contractor's license and built the house under his license. He released Edwin under the contract, and the company released its subcontractors so they could be used by Rodriguez. Wilburt and Juanita Hall entered into a contract with Edwin to build a house on their lot in November 1984 for $57,500. They paid $500 down and made subsequent payments of $34,120 before the builder stopped work. The Halls called in another contractor to complete the house at a total cost of some $15,000 more than the original contract price. John and Eleanor Crews entered into a contract on November 27, 1984, with Edwin to build two houses on their lots for $74,200 and a second contract on December 6, 1984, to build one house on their lot for $37,500. Construction was commenced on both houses, and the Crews paid a total of $7500 to the builder before Mr. Crews fired the builder because of mistakes in preparing the footing on one lot, and because the foundation was not true on the lot for the second house. No demand for refund was made by the Crews, but they offered to pay Edwin for work performed. Dr. Fernandez and wife entered into a contract with Edwin on October 31, 1984 (Exhibit 12) to construct a house on their lot. At the time the contract was signed, Fernandez paid $3610, and, pursuant to the contract provisions, made additional payments of $7220 and $14,440 in January 1985. By supplemental agreement dated June 28, 1985 (Exhibit 13), the builder agreed to complete construction and provide the buyer with an affidavit that all subcontractors had been paid. After nothing further was done on the construction, Fernandez fired the builder and had the house completed by another contractor. Ernest F. Street entered into a contract with Edwin on May 27, 1984 (Exhibit 15) to construct a house on the buyer's lot for $41,000. Street made a down payment of $4012.50 and two additional draws when due under the contract. Construction on the house was abandoned by the builder before completion. Phyllis Lopeman entered into a contract with Edwin on May 30, 1984, to build a house on her lot. When the house was more than one half completed, she became dissatisfied with the construction, released the builder from responsibility to complete the house and hired the builder's subcontractors to complete the project. Henrietta Hagenschneider entered into a contract with Edwin to build a house on her lot and paid 10% down when the contract was signed. No permit was ever pulled for this construction, and work was never started. A letter to Black from her attorney (Exhibit 18) demanding return of her down payment was never answered. Floyd B. Long, the qualifying contractor for Edwin is an elderly builder who lives in Williston, Florida, and apparently did not supervise any of the construction for which permits were pulled under the authority of Long's license. After receiving numerous complaints from buyers, Hillsborough County revoked Long's general contractor's license. At all times relevant to the charges herein considered, Respondents made no real estate sales and maintained no escrow account. Although Howard sold some 50 houses in 1984, these contracts were not timely completed by the builder, and Howard stopped selling. This resulted in a cash flow problem and exacerbated the inability to complete houses for which contracts had been executed. About the time Long's license was revoked, Black was arrested by the local police authorities, and all work by Lawrence Edwin Construction Company stopped. Charges preferred against Black were subsequently dismissed.
Findings Of Fact Curtis Ketchup is black and worked for Standard Container Company at its Tampa, Florida, warehouse from 1968 until his employment was terminated on April 8, 1981. Ketchup was employed as warehouseman and truck driver whose primary duties consisted of loading and unloading trucks and delivering products to Respondent's customers in the area served by the Tampa warehouse. At all times here relevant Ruby Jellico was the manager of Respondent's Tampa operation. She ran both the office and warehouse and supervised two warehousemen and one clerk/secretary. In 1980 business had slowed down in the Tampa Operation and Jellico's function was changed to have her call on customers more than before to solicit additional business. During her absence V. J. Marria, whose title was sales assistant/secretary, took most of the telephone orders and prepared the necessary papers to accomplish the delivery of the product. With a total of only four employees at the Tampa operation, all of these employees sometimes took orders and dealt with customers. Petitioner was the second highest in seniority and pay with the company in Tampa. Although Petitioner contends he was warehouse manager until April 1, 1981, at which time he was demoted, the evidence is clear that Petitioner was never designated warehouse manager; that neither his authority nor his pay was cut on or about April 1, 1951; and whether or not he was, in fact, acting as warehouse manager is irrelevant since no evidence of discrimination in this regard was presented. Petitioner served part-time as a Holiness Pentecostal minister and had discussed with his fellow employees and Jellico his desire to give up his job with Respondent and devote his full time to the ministry. He inquired of Jellico if he could withdraw the funds he had accrued in the company's profit- sharing plan and was told the only way these funds could be withdrawn was by a plan member leaving the company either by dying, retiring, or resigning. Respondent has an employee profit-sharing plan to which employees become members after working with the company for a specified period of time. Contributions to this plan are made by the company and the funds are invested by the manager of the plan. The plan is intended to provide additional benefits to an employee after he retires from the company or to his survivors if he dies before retirement. Petitioner's decision to leave the company if he could withdraw his funds from the profit-sharing plan was communicated to Jellico, who relayed the information that Petitioner wanted to retire and withdraw his funds from the profit-sharing plan to Harry Peyton, the company treasurer, at the home office in Fairfield, New Jersey. Peyton told Jellico that he would have an advance on the funds due Petitioner sent to the Tampa office and that it was necessary for Petitioner to submit his resignation in writing and to agree to endorse back to the company the check he would later receive when the exact amount due him was disbursed at the end of the calendar year. As a further result of these conversations between Jellico and Petitioner, Ken Sessions was employed on April 7, 1981, as Petitioner's replacement. On April 9, 1981, Petitioner talked to Peyton by telephone and Peyton told Petitioner that it was necessary for him to terminate his employment with the company in order to withdraw his funds from the company profit-sharing plan. When the advance on Petitioner's share in the company's profit-sharing plan was received in Tampa on April 14, 1981, Jellico called Petitioner and told him he could come in and pick up the check for $4,834.33. Upon his arrival in the office, Petitioner gave Jellico his resignation letter (Exhibit 7) dated April 8, 1981, the last day worked by Petitioner. Petitioner also signed Exhibit 8 in which he acknowledged discussing the termination of his employment with Respondent as soon as a replacement could be found for him and agreed to repay the amount of the advance at the end of 1981 when the exact amount due him under the profit-sharing plan was determined. In early 1982 an additional check in the amount of some $800 was forwarded to Petitioner to close out all funds due him. Petitioner contends that on April 8, 1981, while lifting a pallet from a shelf above his head he felt a sharp pain in his neck. The following morning, April 9, Petitioner's wife called Jellico to tell her Petitioner had net slept well the night before, was tense, and did not feel well. Jellico suggested he see a doctor. On April 9, 1981, Petitioner went to St. Joseph's Hospital, Tampa, where he was seen by a Dr. Mooney. Notations taken and treatment rendered on this visit are contained in Exhibit 6. Although Petitioner testified he believes he told Dr. Mooney about the pain he experienced while lifting the pallet on April 8, 1981, no mention is made of this in Exhibit (Nor did Petitioner tell any of Respondent's employees of this pain experienced on April The first notice received by Respondent of this alleged incident was a call from a State Worker's Compensation official some months later inquiring why no accident report had been filed. In addition to filing a claim for Worker's Compensation for the injury allegedly occurred on April 8, 1981, petitioner filed suit in the Circuit Court of Hillsborough County against Respondent alleging discrimination. This latter action was dismissed before going to trial and Petitioner was also unsuccessful in his Worker's Compensation claim.
Findings Of Fact At all times pertinent to the issues herein the Respondent, Linda H. Abraham, was licensed by the State of Florida as a real estate broker under license number 0323486. During the months of February and March 1983 Martha L. Tew owned a parcel of waterfront property located in Panama City Beach which was identified as being for sale by a sign on the property reflecting her husband's real estate company. Her husband was Ronald Eugene Tew and Mrs. Tew also held a salesman's license. Mr. Tew was contacted by Gregory A. Peaden, a contractor and developer in the Panama City Beach area on several occasions prior to March 1983 with offers to purchase the Tew property. The contacts with Mr. Peaden subsequently culminated in a contract dated March 8, 1983, between Greg Peaden, Inc., and the Tews in the amount of, initially, $180,000.00. During the negotiations for the property, Mr. Peaden had introduced the Respondent to the Tews as his broker. When, at the time of Use contract, Mr. Peaden advised the Tews he wanted Respondent to get a commission for the sale, Mr. Tew refused to pay any commission indicating that Respondent had performed no service for him; that he, Tew, was a broker himself; and that he had no intention of paying any commission to the Respondent or to anyone, for that matter. After some further negotiation, a second contract was prepared and agreed upon wherein the contract price was raised to $189,000.00 and the Respondent's commission was to be paid with the additional money from Mr. Peaden. The contract in question executed by the parties on March 8, 1983, reflected that the sum of $5,000.00 deposit was paid to Linda Abraham, Inc., by check. Mr. Tew contends that at this point he was led to believe that Respondent had the $5,000.00 check and, he contends, he would not have signed the contract if he had known that the check had not been delivered and placed in Respondent's escrow account. The actual signing of the contract took place in Respondent's office, a mobile home which she shared with Mr. Peaden's business. This trailer home was described as having Mr. Peaden's office on one end, and Respondent's on the other, with the living-kitchen area in the middle used as a reception area for both businesses. Mr. Peaden contends that once the contract was signed by the Tews, he gave a check drawn on one of his business accounts, that of Peaden and Guerino, a property management company he owned, to his secretary, Judy White, to deposit in Respondent's escrow account and thereafter promptly forgot about the matter until the date scheduled for closing, two months in the future. Ms. white, on the other hand, contends that Mr. Peaden at no time gave her a check for $5,000.00 to deposit to Respondent's escrow account. It is her contention that when she received the contract after it was signed, she, on her own, inserted the receipt portion on the bottom of the second page and signed as having received it merely to complete the contract. At the time, she contends, she did not know if the deposit was received from Peaden or not. She has never signed a contract like this before without a deposit and cannot give any other reason why she did it on this occasion. She is certain, however, that at no time did Mr. Peaden ever give her a $5,000.00 check or tell her to draw one for his signature on March 8, 1983, or, for that matter, at any time thereafter. What is more, neither Mr. Peaden nor the Respondent, at any time after the signing of the contract and prior to her departure under less than friendly circumstances approximately a week or so later, ever asked her whether she had made the escrow deposit or discussed it with her at all. Ms. white contends that she left Mr. Peaden's employ because he expected her to perform certain functions she was unwilling to do. When she left his employ, she did not feel there was any unfinished business that needed her immediate attention. To the best of her recollection, there were no sales contracts or deposits left in or on her desk - only bills. According to Respondent, the $5,000.00 deposit by Mr. Peaden was to stay in her escrow account. She understood Mr. Peaden was going to arrange with the bank to borrow the entire cash payment called for under the contract, including the deposit, and when that was done, it was her intention to give him back his $5,000.00 check. Under these circumstances, the amount in escrow would never be paid to the sellers but would be returned to Mr. Peaden and the Tews would receive the entire cash amount called for by the contract from the proceeds of the bank loan. Respondent also indicated that this procedure had been followed at least once, in a prior transaction. Under the circumstances, it is clear that no deposit was ever received from Mr. Peaden nor was it placed in Respondent's escrow account. Therefore, the contract, dated on March 8, 1983, was false in that it represented a $5,000.00 deposit had been received. The check for $5,000.00 dated March 8, 1983, payable to Linda Abraham, Inc. and drawn by Mr. Peaden on the Peaden and Guerino account with the stub admitted to show the date of issuance, does not establish that it was written on March 8, 1983, as contended. This check, number 1349, comes after two other checks, 1347 and 1348, which bear dates of April 4 and September 7, 1983 respectively. Mr. Peaden's explanation that the checks were drafted out of sequence is non-persuasive. Of greater probative value is the fact that neither Mr. Peaden nor Respondent bothered to review their bank statements on a regular basis. The check in question was drawn on an account not related to the construction and development business of Greg Peaden, Inc. Further, examination of Respondent's escrow account reflects that there were approximately eleven transactions over a three year period even though, according to her, she handled numerous other closings as well as this. Her explanation is that in most cases the attorney handling the closing served as escrow agent even though she was the sales broker. Her explanation is not credible. This appears to be a classic situation of movement of accounts to satisfy a particular end. The contract called for closing of the sale to be held on or before May 8, 1983, in the office of Panama Title Company. May 8, 1983, fell on a Sunday. As a result, the closing would not have been held that day, but it was not held the following day, Monday, May 9, 1983 either. Mr. Peaden admits that he had not checked with Panama Title prior to May 9 to see if everything was prepared for the closing. Instead, he contacted the title company for the first time at approximately noon on May 9. Apparently he received disquieting information because he thereafter called his attorney, Mr. Hutto, and asked him to check with the title company to see if and when the closing would be held. Mr. Hutto's inquiry reflected that the title insurance binder was ready but the closing statement and the package were not because the title company required a copy of the contract. At this point Mr. Peaden immediately had a copy of the contract delivered to the title company but later that day was advised that the closing still could not be held because of the failure to provide a survey. Mr. Hutto indicates that the reason given was that the release clauses called for in the contract required the survey to be furnished though he did not necessarily agree with that. In any event, closing was not held on May 9. At this time both Mr. Peaden and Respondent allegedly became concerned about the $5,000.00 deposit. Admittedly, neither had concerned themselves with it from the time of the signing of the contract. At this point, Mr. Peaden indicates that he examined his bank records which failed to show the deposit being made and his subsequent search of Ms. White's desk finally revealed the check, undeposited, still there. On May 11, 1983, a $5,000.00 deposit was made to the account on which the deposit check was drawn and on the same day, May 11, 1983 check number 1349, in the amount of $5,000.00 was presented against the account. When on May 10, 1983, Mr. Peaden and Respondent went to Mr. Hutto's office the primary reason for the visit was because Mr. Peaden had heard that the Tews were planning to sell the property in question to someone else at a price much higher than that agreed upon for the sale to Peaden. At this point Mr. Hutto indicated that if Peaden so desired, Hutto could "fix up the contract to jam up the works" until he could do something about it. His examination of the contract revealed that it was not recorded or acknowledged and under the laws of Florida, acknowledgment is required in order for a contract to be recorded. Hutto asked the Respondent if she had seen the parties sign the contract and when she said that she had, he had his secretary prepare a jurat. Unfortunately, his secretary prepared an affidavit type notary jurat rather than an acknowledgment and Hutto quickly admits that he did not look at it when it was given back to him. He says that if he had, he would have had it changed but in any event, without looking at what was given him, he gave it to the Respondent with the implication, at least, that she should notarize it and have the contract recorded. According to Hutto, Peaden, and the Respondent, the sole purpose for notarization and recordation was to preserve the status quo to protect Mr. Peaden's interest in the property so that the matter could be adjudicated in a lawsuit which was soon to be filed. Respondent contends she never intended any misconduct throughout this transaction nor did she do any of the things alleged in the Administrative Complaint. She contends she never saw the check which Mr. Peaden allegedly gave to his secretary for deposit to her escrow account. She merely assumed that it was given and never checked to insure that it had been placed in her account. She does not know why Mr. Peaden did not give her the check. When she took the contract to the Tews, she was operating under the assumption that the check had been received but did not verify this to insure that it had. She contends that since she represented the buyer, her duties were limited to insuring that he performed and this made it simple. She did not check on him because she had had so much experience with him, him being by far her largest account, if he said something, she believed him and when the contract was executed, she merely instructed the secretary, Judy White, to make the file and did not check on it again. As to the recordation and the notarization after the fact, she acted upon the advice of counsel, she states, and did what was suggested to her by Mr. Hutto. It should be noted, however, that Mr. Hutto did not represent her but instead represented Mr. Peaden and while because of her long-standing relationship with him and Mr. Hutto, she may have felt safe in relying on his advice, the fact remains that Hutto was not her attorney.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered real estate broker in Florida be suspended for six months and that she pay an administrative fine of $2,000.00. RECOMMENDED this 6th day of June, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1985. COPIES FURNISHED: Arthur Shell, Esquire Department of Professional Regulation Division of Real Estate 400 W. Robinson Street Orlando, Florida 32801 John D. O'Brien, Esquire P. O. Box 1218 Panama City, Florida 32402 Harold Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is the state agency charged in conjunction with the Construction Industry Licensing Board with the responsibility for prosecuting the Administrative Complaint in this proceeding pursuant to chapters 455 and 489 and the rules promulgated thereunder. At all times material to this proceeding, Respondent was licensed as a certified pool contractor in the State of Florida pursuant to license number CP C009588. Respondent was the licensed qualifying agent for Pools by L.S. Rule, Inc. ("Pools"). Respondent contracted with Andre Olson on January 29, 1987, to construct a swimming pool for $15,000.00 at Mr. Olson's residence in Lighthouse Point, Florida. Respondent completed one half to two thirds of the work required under the terms of the contract. Respondent was paid approximately $14,250.00, or 95 percent of the contract price. Construction began sometime in April, 1987, and proceeded over the next month and a half. Respondent abandoned construction before completing all of the contracted work due to personal problems unrelated to the conduct of his business. Respondent informed Mr. Olson approximately six months after construction had stopped that Respondent was closing his business and would be unable to complete construction of Mr. Olson's pool. Mr. Olson paid subcontractors approximately $3,000.00 in addition to the amount paid Respondent to complete his pool. Some of the subcontractors had been subcontractors for Respondent. Mr. Olson eventually obtained a final inspection. Respondent failed to properly install the pool drain plumbing on Mr. Olson' pool. The improperly installed drain caused the pool to leak excessively. It would cost approximately $4,800.00 to repair the faulty drain. Respondent failed to properly supervise Pools. Respondent failed to properly supervise construction performed by Pools with respect to the construction of Mr. Olson's pool. Respondent failed to properly supervise the financial operations of Pools with respect to the construction of Mr. Olson's pool. Respondent has a history of disciplinary proceedings. Respondent was disciplined by the Construction Industry Licensing Board (the "Board") on March 14, 1989, in connection with an unrelated matter, for violating Subsections 489.129(1)(h) and (k), Florida Statutes. Respondent was issued a Letter of Guidance in Department of Professional Regulation Case NO. 062214. Respondent's personal problems were caused in part by a divorce proceeding which has been resolved. Respondent has resumed business and is beginning to recover from his financial losses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsections 489.129(1)(h), (k), and (m), Florida Statutes. Respondent's violations of Subsections 489.129(1)(h) and (k) are repeat offenses. Respondent, therefore, is subject to suspension and revocation of his license. In view of the fact that Respondent has resolved his former personal problems and is attempting to return to a self supporting business, it is recommended that Respondent be placed on probation for a period of three years from the date of the final order in this proceeding, subject to reasonable conditions imposed by Petitioner, and pay an administrative fine of $5,000.00. If Respondent fails to comply with the terms of the preceding sentence, it is recommended that Respondent's license be revoked. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of September, 1990. DANIEL MANRY 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 5th day of September, 1990.
