Opinion
October 9, 1951. On Rehearing December 7, 1951.
Appeal from the Circuit Court, Orange County, Frank A. Smith, J.
Clark W. Jennings and T.P. Warlow, Jr., Orlando, for appellants.
W.H. Poe, Orlando, for appellees.
In its information the Real Estate Commission charged brokers, Edna L. O'Harra and Juanita K. Moore, co-partners under the firm name of O'Harra-Moore, with conduct of a character condemned by Section 475.25(1) (a) and (e), Florida Statutes, 1949, F.S.A. The charges grew out of a sale of real estate in July, 1948, between Mrs. Eisenchiml, vendor, and Charles H. Blake and wife, vendees. At the closing of the sale the Blakes left in Mrs. O'Harra's hands as representative of the partnership the sum of $5,000 of the purchase price to forthwith pay an outstanding mortgage on the property held by one Mrs. Benepe. The conduct complained of concerned the handling of this fund of $5,000 by Mrs. O'Harra which began immediately with the closing of the sale and extended until September, 1949, when the mortgage was paid. Both Mrs. O'Harra and Mrs. Moore were convicted and their licenses suspended. Upon appeal the Circuit Judge confirmed the Board's two years suspension of Mrs. O'Harra's license but reversed for lack of evidence the six months suspension of Mrs. Moore. Mrs. O'Harra brings this decree for review.
Without reproducing a detailed review the record fully supports the order of the Commission and the judgment of the Court. Notwithstanding the financial worth of O'Harra-Moore to pay off the mortgage at all times and Mrs. O'Harra's willingness to account, the commingling of the $5,000 entrusted to her with the funds of the firm and the use of it in their business of improving certain real estate without the knowledge and consent of the grantor and grantees was highly reprehensible and condemned by the Statute. We do not condone her conduct.
It appears, however, that her retention of the fund, instead of paying the mortgage as required, came to the knowledge of the Blakes shortly after the closing of the sale. At that time they had become dissatisfied with their purchase and were undecided whether to keep or sell the property and so advised Mrs. O'Harra. She then suggested that the mortgage be left outstanding until they had definitely decided the matter. They acquiesed in this suggestion. This indecision of the Blakes coupled with their continued acquiescence in the status quo for the several months until Mrs. Benepe's demand for full payment of the mortgage, we think a strong extenuating circumstance in the matter of determining the quantum of the penalty. Furthermore, Mrs. O'Harra for the entire period of more than one year promptly paid the monthly installments due on the mortgage and made final payment to Mrs. Benepe within a reasonable time after demand although not until the information was filed. The delay of some months was, in part, due to the indulgence of the Blakes and, in part, to the necessity of O'Harra-Moore completing a mortgaged loan on their property to secure the money to make the payment to Mrs. Benepe. The record negates any corrupt intent. Mrs. O'Harra first obtained a real estate license in 1917 and has since that time almost continuously held a license and engaged in that occupation. For more than nine years she has had a license under the present law governing real estate agents. There is nothing in the record indicative of any previous conduct which might have actuated the Commission in fixing the penalty imposed. Considered as a whole we do not think her conduct warrants a license suspension of two years but that a penalty of suspension for one year more nearly accords with the justice of the case. See Holland v. Florida Real Estate Commission ex rel. Linesbaugh, 130 Fla. 590, 178 So. 121, and Suttles v. Florida Real Estate Commission ex rel. O'Kelley, 139 Fla. 210, 190 So. 433.
The decree of the Circuit Judge is modified as indicated with directions to enter decree in conformity with this opinion.
SEBRING, C.J., and THOMAS and ADAMS, JJ., concur.
TERRELL, CHAPMAN and ROBERTS, JJ., dissent.
On Rehearing Granted.
On September 22, 1949, an information was filed before the Florida Real Estate Commission against Edna L. O'Harra, a licensed or registered realtor, consisting of two counts, charging a violation of Sections 475.25(1) (a) and 475.25(1) (e), F.S.A. Facts are alleged or set out in each count which show a violation of the above statutes. Edna L. O'Harra filed an answer to each of the counts of the above information, testimony was taken, and on April 18, 1950, the Florida Real Estate Commission entered its order suspending the registration of Edna L. O'Harra for a period of two years.
An appeal therefrom was perfected to the Circuit Court of Orange County, Florida, where the matter was heard and the trial Court, on October 5, 1950, entered an order affirming the order as previously entered by the Florida Real Estate Commission. Edna L. O'Harra has perfected an appeal to this Court.
We have reviewed the evidence, examined the applicable law, heard able oral argument by counsel for the respective parties at the bar of this Court, and it is our considered opinion and conclusion that the evidence adduced is legally insufficient to sustain the material allegations of the two counts of the information upon which the order of suspension rests. For this reason our previous order of affirmance is set aside, vacated and held as naught and upon rehearing granted the order of affirmance as entered by the Circuit Court of Orange County, Florida, is reversed with directions for the entry of an appropriate order by the Florida Real Estate Commission dismissing the information previously filed against appellant.
It is so ordered.
TERRELL, CHAPMAN, ROBERTS and MATHEWS, JJ., concur.
SEBRING, C.J., and THOMAS and HOBSON, JJ., dissent.