00-002422 Department Of Business And Professional Regulation, Division Of Real Estate vs. Jean Prol Status: Closed Recommended Order on Wednesday, November 1, 2000.

Summary: Salesperson who represented sellers and buyers in same transaction but represented that she was each party`s exclusive agent should be fined $1,000 and have her license suspended for one year.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 00-2422

)

JEAN PROL, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Administrative Law Judge Daniel Manry conducted the

administrative hearing in this proceeding on September 12, 2000,

in Orlando, Florida.

APPEARANCES

For Petitioner: Ghunise L. Coaxum, Esquire

D epartment of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N-308

Orlando, Florida 32801

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated

Section 475.25(1)(b), Florida Statutes (1999), by committing a

breach of trust in a business transaction. (All Chapter and

Section references are to Florida Statutes (1999) unless

otherwise stated.)

PRELIMINARY STATEMENT

On October 26, 1999, Petitioner filed an administrative

complaint against Respondent alleging that Respondent committed a

breach of trust in a real estate transaction. Respondent timely

requested an administrative hearing.

At the hearing, Petitioner presented the testimony of three

witnesses and submitted eight exhibits for admission in evidence.

Respondent did not appear and did not otherwise submit any

documents or testimony for admission in evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are set forth in the Transcript of the hearing

filed on October 18, 2000. Petitioner timely filed its Proposed

Recommended Order ("PRO") on October 30, 2000. Respondent did

not submit a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for the

regulation and discipline of real estate licensees in the state.

Respondent is licensed in the state as a real estate sales person

pursuant to license number 0349967. Petitioner issued the last

license to Respondent in care of 100% Real Estate, Inc., 1810 Lee

Road, Orlando, Florida 32810.

2. On August 6, 1998, Dr. and Mrs. Richard M. Cowins (the

"Cowins") entered into a Contract for Sale and Purchase (the

"Contract") of their residence located at 9151 Cypress Point

Drive. The Contract listed Respondent as the agent for J.C.

Services Ltd., or Assigns ( the "Buyer"). The Contract

established the date of closing as September 8, 1998.

3. On August 7, 1998, Respondent executed an Addendum to

the Contract for Sale and Purchase. The Addendum, in relevant

part, stated that Respondent was the agent for the Buyer,

required a home inspection, and gave the Buyer the right to

cancel the contract and obtain a refund of the $5,000 escrow

deposit if the home inspection report was not satisfactory to the

Buyer.

4. On August 7, 1998, Respondent executed a single agency

disclosure form stating that Respondent was the agent for the

Cowins as sellers. Respondent delivered the single agent

disclosure form to the Cowins on August 7, 1998. The record does

not disclose why Respondent executed a single agency disclosure

form for the Cowins and signed the Contract and Addendum as the

agent for the Buyer.

5. The Cowins entered into a contract for the purchase of a

replacement residence. The Cowins placed $10,000 in escrow for

the purchase of the replacement residence.

6. Two inspection reports were completed for the Cowins'

residence. Both inspection reports required repairs to windows

and the roof. The Cowins made the repairs.

7. Respondent requested an extension of the closing on

behalf of the Buyer but did not give the Cowins a reason for the

requested extension. The Cowins refused to extend the closing

without a reason and demanded the funds in escrow. Respondent

attempted to place the escrow funds into an interpleader

proceeding but was unable to do so because Respondent refused to

disclose the identity of the Buyer.

8. Respondent refunded the escrow of $5,000 to the Buyer.

The Cowins forfeited the $10,000 they had placed in escrow on the

replacement residence because they were unable to close without

the sale proceeds for the sale of their residence.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the subject matter and parties in this proceeding. The

parties were duly noticed for the administrative hearing.

10. The burden of proof is on Petitioner. Petitioner must

show by clear and convincing evidence that Respondent committed

the acts alleged in the administrative complaint and the

reasonableness of any proposed penalty. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

11. Petitioner satisfied its burden of proof. Petitioner

showed by clear and convincing evidence that Respondent committed

a breach of trust in violation of Section 475.25(1)(b) by falsely

representing to the Cowins that Respondent was a single agent for

them when Respondent in fact represented the Buyer in a real

estate transaction.

12. Florida Administrative Code Rule 61J2-24.001 prescribes

the discipline to be imposed against Respondent's license. The

discipline includes fines and suspension of license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Commission enter a Final Order finding

Respondent guilty of violating Section 475.25(1)(b), imposing a

fine of $1,000, and suspending Respondent's license for one year.

DONE AND ENTERED this 1st day of November, 2000, in

Tallahassee, Leon County, Florida.

__________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed wi th the Clerk of the

Division of Administrative Hearings

this 1st day of November, 2000.

COPIES FURNISHED:

Herbert S. Fecker, Division Director

Division of Real Estate

Department of Business and

Professional Regulation

Post Office Box 1900

Orlando, Florida 32802-1900

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ghunise L. Coaxum, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N-308

Orlando, Florida 32801

Jean Prol

4630 South Kirkman Road

Orlando, Florida 32811

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.