01-002190PL Department Of Business And Professional Regulation, Division Of Real Estate vs. William A. Morrisey Status: Closed Recommended Order on Wednesday, October 17, 2001.

Summary: Real estate salesperson, as purchaser, did not place deposit in escrow.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2190PL

)

WILLIAM A. MORRISEY, )

)

Respondent. )

__________________________________)

RE COMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case on August 24, 2001, by video teleconference at Orlando

and Tallahassee, Florida, before Susan B. Kirkland, a

designated Administrative Law Judge of the Division of

Administrative H earings.

APPEARANCES

For Petitioner: Rania A. Soliman, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, N - 308

Hurston Building, North Tower

Post Office Box 1900

Orlando, Florida 32801

For Respondent: No Appearance.

STATEMENT OF THE ISSUES

Whether Respondent violated Sections 475.25(1)(b),

475.25(1)(d)2, and 475.25(1)(e), Florida Statutes (19 98

Supp.), and 475.42(1)(b), Florida Statutes, and, if so, what

discipline should be imposed.

PRELIMINARY STATEMENT

On August 21, 2000, Petitioner, Department of Business

and Professional Regulation, Division of Real Estate

(Department) filed a three - count Administrative Complaint

against Respondent, William A. Morrisey (Morrisey), alleging

that Morrisey had violated Sections 475.25(1)(b),

475.25(1)(d)2, and 475.25(1)(e), Florida Statutes (Supp.

1998), and 475.42(1)(b) Florida Statutes. Morrisey requested

an administrative hearing, and the case was forwarded to the

Division of Administrative Hearings on June 14, 2001, for

assignment to an administrative law judge.

The final hearing was scheduled to commence at 9:00 a.m.

on August 24, 2001. Morrisey did not appear at the scheduled

time. The undersigned waited until 9:30 a.m. to give Morrisey

an opportunity to appear. Morrisey did not appear for the

final hearing and did not advise the Division of

Administrative Hearings why he did not appear.

At the final hearing, official recognition was taken of

Chapters 120, 455, and 475, Florida Statutes.

At the final hearing the Department called the following

witnesses: William Carlock, Steven M. Wheeler, Alphonse A.

Cheneler, John Penne, Calvin J. Meeks, Linda Joyce Breeding,

David Guerdan, and John Scales. Petitioner's Exhibits 1 - 5

were admitted in evidence.

The one - volume Transcript was filed on September 17,

2001. Petitioner filed its Proposed Recommended Order on

September 27, 2001. Respondent did not file a p roposed

recommended order.

FINDINGS OF FACT

1. At all times material to this proceeding, William A.

Morrisey was a licensed Florida real estate salesperson,

issued license number 0607918 by the Department in accordance

with Chapter 475, Florida Statutes.

2. On June 10, 1999, Morrisey, as a partner of W.M. #1,

executed a contract to purchase real property located at 108

Westwind Court, Sanford, Florida. The sellers were William

and Arlene Carlock. The sellers were represented by Stephen

Wheeler (Wheeler) with Penne Brokers, Inc.

3. Morrisey identified himself in the contract as a

licensed real estate salesperson with Real Estate

Professionals of America. Morrisey was engaged in a personal

real estate transaction and was not operating as a salesperson

for Real Estate Professionals of America. Bill Paisley

(Paisley) of Real Estate Professionals of America was the real

estate agent for Morrisey and made the original offer on

behalf of W.M. #1 to purchase the property. Paisley

represented to Wheeler that the purchase would be a cash

transaction and that Morrisey was buying the property for a

profit.

4. The Carlocks and Morrisey agreed to close on the

property before the end of June 1999. Morrisey was unable to

close before the end of June and asked for an extension of

time until July 5, 1999. Wheeler began to communicate

directly with Morrisey when problems arose about the closing

date. Morrisey explained to Wheeler that he would not be

paying cash for the property because he was going to sell the

prop erty to Keandra Brown.

5. On July 5, Mr. and Mrs. Carlock went to Abstractors

Title Company of Central Florida (Abstractors Title) for the

closing. Mr. Morrisey did not show for the closing because

Ms. Brown did not have the mortgage.

6. Mr. Carlock le ft the keys to the house with

Abstractors Title so that Morrisey could use the keys to do a

final inspection on the house to make sure that the agreed -

upon repairs were completed. Abstractors Title gave the key

to Morrisey to do the final inspection.

7. The closing was rescheduled for August 4, 1999.

Mr. and Mrs. Carlock came to the closing as well as Morrisey.

The parties signed the closing papers, but Morrisey did not

have the funds to close the transaction. He asked Alphonse

Cheneler with Abstract ors Title to disburse the proceeds from

a transaction that had not transpired (Morrisey's sale of the

Carlocks' house to Ms. Brown) so that Morrisey could use those

funds to complete his purchase of the property from Mr. and

Mrs. Carlock. Mr. Cheneler adv ised Morrisey that he could not

do that.

8. Morrisey also wanted Mr. Cheneler to disburse the

funds from the Morrisey - Brown closing so that Morrisey could

deposit some money in Ms. Brown's banking account to fulfill a

lender requirement that she have a c ertain amount of money in

her bank account. Mr. Cheneler told Morrisey that he felt

that would be bank fraud and he would not do it. Morrisey

offered Cheneler $1,000 and a watch if Cheneler would disburse

the funds. Cheneler refused.

9. Morrisey advis ed Wheeler on August 4, 1999, that he

would have the funds within a couple of days, but Morrisey

never brought the funds and the closing was never completed.

10. On August 4, 1999, Wheeler went to the property that

was for sale, and found that Keandra Bro wn had moved into the

house without the knowledge or consent of the owners. Wheeler

told Ms. Brown that she would have to leave the property

because Morrisey had not closed on the property. Morrisey

came to the property while Wheeler was there and verbal ly

threatened Wheeler, saying he would remove Wheeler from the

property if Wheeler did not leave.

11. Mr. Carlock hired an attorney and started eviction

proceedings to have Ms. Brown evicted from the premises.

Ms. Brown moved out of the house on Augus t 18, 1999.

12. The contract required Morrisey to place a $1,000

deposit with the law firm of Swann, Hadley, & Alvarez.

Morrisey did not place the $1,000 in an escrow account with

Swann, Hadley, & Alvarez. By letter dated August 11, 1999, a

representati ve of Swann, Hadley, & Alvarez advised Wheeler

that Morrisey had never placed the money in an escrow account

with Swann, Hadley, & Alvarez. Morrisey never placed the

$1,000 with either Penne Brokers, Inc., or Real Estate

Professionals of America.

13. A complaint was filed with the Department concerning

Morrisey's actions in the real estate transaction at issue.

An investigator for the Department sent a letter to Morrisey

on September 20, 1999, notifying Morrisey that a complaint had

been filed against him. Morrisey contacted the investigator

and told the investigator that he would send the investigator

some documents by facsimile transmission. Morrisey never sent

the documents. Morrisey again called the investigator and

scheduled an appointment for N ovember 16, 1999, but Morrisey

never appeared for the appointment. The investigator left a

voice mail message for Morrisey, but Morrisey never replied.

A second notification letter was sent to Morrisey, and

Morrisey called and scheduled another appointme nt. Morrisey

met with the investigator on December 13, 1999.

14. Morrisey advised the investigator that he did ask

Abstractors Title to close on the Morrisey - Brown transaction

prior to closing on the Carlock - Morrisey transaction so that

Morrisey could us e the proceeds from the Morrisey - Brown

transaction to close on the Carlock - Morrisey transaction.

Morrisey also advised that he did not make the $1,000 deposit

at Swann, Hadley, & Alvarez.

15. Mr. and Mrs. Carlock sold the property to another

buyer on Feb ruary 1, 2000.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

this proceeding. Sections 120.569 and 120.57, Florida

Statutes.

17. The Department has the burden to establish t he

allegations by clear and convincing evidence. Department of

Banking and Finance v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

18. In Count I of the Administrative Complaint, the

Department alle ges that Morrisey was in violation of Section

475.42(1)(b), Florida Statutes, by having operated as a

salesperson for any person not registered as his employer in

violation of Section 475.25(1)(e), Florida Statutes (1998

Supp.), which provides that a licen see may be disciplined for

violating any of the provisions of Chapter 475, Florida

Statutes.

19. In its Proposed Recommended Order, the Department

concedes that in the transaction to purchase the Carlocks'

property that Morrisey was not operating as a sal esperson for

Real Estate Professionals of America, and, thus, was not in

violation of Section 475.42(1)(b), Florida Statutes. The

Department has failed to establish the allegations in Count I

of the Administrative Complaint.

20. In Count II of the Admini strative Complaint, the

Department alleges that Morrisey violated Section

475.25(1)(d)2, Florida Statutes (Supp. 1998), which provides

that the Department may discipline a licensee if the

Department finds that the licensee has done the following:

Has fa iled to deposit money in an escrow

account when the licensee is the purchaser

of real estate under a contract where the

contract requires the purchaser to place

deposit money in an escrow account to be

applied to the purchase price if the sale

is consummat ed.

21. The Department has established by clear and

convincing evidence that Morrisey violated Section

475.25(1)(d)2, Florida Statutes (1998 Supp.). Morrisey was

the purchaser in the Morrisey - Carlock transaction and was

required by the purchase contract to place a $1,000 in an

escrow account with the law firm of Swann, Hadley, & Alavarez.

Morrisey failed to place the money with Swann, Hadley, &

Alvarez.

22. In Count III of the Administrative Complaint, the

Department alleges that Morrisey violated Sect ion

475.25(1)(b), Florida Statutes (Supp. 1998), which provides

that a licensee may be disciplined if the Department finds

that the licensee has done the following:

Has been guilty of fraud,

misrepresentation, concealment, false

promises, false pretens es, dishonest

dealing by trick, scheme, or device,

culpable negligence, or breach of trust in

any business transaction in this state . .

. .

23. The Department has established by clear and

convincing evidence that Morrisey has violated Section

475.25(1)( b), Florida Statutes (Supp. 1998). Morrisey was

guilty of dishonest dealings when he attempted to induce

Mr. Cheneler to release the funds from the Morrisey - Brown

transaction prior to the closing of the Morrisey - Carlock

transaction in order for Morrise y to have funds to close the

Morrisey - Carlock transaction and to place funds in Ms. Brown's

account to satisfy her lender requirement. Morrisey was

guilty of concealment when he allowed Ms. Brown to occupy the

Carlocks' property prior to the closing of th e Morrisey -

Carlock transaction and without the consent and knowledge of

Mr. and Mrs. Carlock.

24. For violations of Section 475.25(1), Florida

Statutes (Supp. 1998), the Department has the authority to

place a licensee on probation, suspend or revoke a li censee,

impose an administrative fine, and issue a reprimand.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that a Final Order be entered

dismissing Count I of the Administrative Complaint, finding

that Wi lliam A. Morrisey violated Sections 475.25(1)(b) and

475.25(1)(d)2, Florida Statutes (Supp. 1998), suspending his

license for five years, imposing a $1,000 administrative fine

for the violation of Section 475.25(1)(b), Florida Statutes

(Supp. 1998), and im posing a $1,000 administrative fine for

the violation of Section 475.25(1)(d)2, Florida Statutes

(Supp. 1998).

DONE AND ENTERED this 17th day of October, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRK LAND

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

www.doah.state.fl.us

Filed with th e Clerk of the

Division of Administrative Hearings

this 17th day of October, 2001.

COPIES FURNISHED:

William A. Morrisey

1014 Fox Den Court

Winter Springs, Florida 32708

Rania A. Soliman, Esquire

Department of Business and

Professional Regulatio n

400 West Robinson Street, Suite N - 308

Hurston Building, North Tower

Post Office Box 1900

Orlando, Florida 32801

Jack Hisey, Deputy Division Director

Division of Real Estate

Department of Business and

Professional Regulation

Hurston Building, North T ower

Post Office Box 1900

Orlando, Florida 32801

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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.