STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

Anatol Arien, Representative, )

)

Petitioner, )

)

vs. ) CASE NO. 77-783

) JEREMIAH C. CLARKE, HELEN N. ) CLARKE 1/ AND CLARK REAL ESTATE, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this cause on July 18, 1977, in Coral Gables, Florida. Anatol Arien, representative of the Florida Real Estate Commission, filed a three-count administrative complaint on January 18, 1977, alleging that the Respondents have engaged in acts and conduct which will be set forth in detail hereinafter which constitutes violations of subsection 475.25(1)(a)(i)(c), Florida Statutes. Based thereon, the Commission seeks to suspend or revoke the registration of the Respondents.

APPEARANCES

For Petitioner: Bruce I. Kamelhair, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Charles R. Lipcon, Esquire

Suite 2262, 1 Biscayne Tower

Miami, Florida 33131

Based on my observation of the witnesses and their demeanor while testifying, the testimony adduced and the entire record compiled herein, I make the following:

FINDINGS OF FACT

1. Documents introduced into evidence revealed that the Respondent Jeremiah C. Clarke is a registered real estate broker and Clarke Real Estate is an entity registered as a partnership broker and authorized to act as such with the Commission. On or about September 15, 1975, Jerry Kent, a salesman with Respondent, Clark Real Estate, obtained an oral open listing from Esther Braverman on a condominium unit denominated as "Apartment B-804, 1111 Crandon Boulevard, Key Biscayne, Florida." Pursuant thereto, salesman Kent showed the condominium unit to Jacques Benoist and Jeanine Benoist, his wife, who executed a deposit receipt contract to purchase a condominium unit on September 27, 1975. Esther Braverman, the seller, executed the contract during October of 1975. The

   deposit receipt contract provided for a $10,000 earnest money deposit to be held in the escrow account of the law firm of Snider, Young, Barrett, and Tannenbaum, P.A., attorneys for seller Braverman. Said deposit was made on September 27, 1975, by delivering a check to attorney Bruce L. Hollander, a member of the firm, who deposited the deposit in the firm's escrow account. (See Commission's Exhibit No. 9). The deposit receipt contract also obligated the seller, Esther Braverman, to pay Respondent Jeremiah C. Clark a commission of $7,875.

   Specifically, the contract provides that "I, or we, agree to pay to the above assigned broker a commission for finding the above signed purchaser for the above described property, the sum of $7,875 . . . ." Closing took place on January 19, 1976, at the offices of Washington Federal Savings and Loan Association, Miami Beach, Florida, from whom the Benoists had obtained financing for the purchase. At the closing on January 19, 1976, Esther Braverman signed and delivered a warranty deed made out to Jacques Benoist and Janine Benoist, transferring the property to the Bravermans. The warranty deed was recorded with the clerk of the Dade County Circuit Court by the lending institution, Washington Federal Savings and Loan Association. (See Respondent's Exhibits 1 and 2) At the closing, Jeremiah Clark was given a check representing the commission to Clarke Real Estate in the amount of $7,875. Thereafter, Jerry Clarke was requested by the lending institution to hold the funds in escrow until the bank dispursed the mortgage proceeds. He was then told that the mortgage proceeds would be paid within the following week. Respondent Clarke agreed, pursuant to a request from the seller's attorney, Bruce Hollander, to hold the commission check until January 27, 1976, without depositing same. Mr.

   Clarke held the commission check until January 29, 1976, as agree. On that day, he dispursed the proceeds to salesman Jerry Kent and the balance was credited to Clarke Real Estate. The mortgage funds were never disbursed because the lending institution could not obtain a quit-claim deed from the seller, Esther Braverman's former husband and therefore in the lending institution's opinion, the defect was not discovered until after the closing. On May 6, 1976, attorney Hollander acting for his law firm and the seller sent Respondent Jeremiah C. Clarke and Respondent Clarke Real Estate a letter stating that the mortgage proceeds had not been disbursed by the lending institution and requested a demand for the commission check.

   
   

2. The Commission takes the position that the closing which occurred on January 19, was an escrow closing and that the Respondent Jeremiah Clarke was not authorized to disburse the proceeds from the commission check until notification that the mortgage proceeds were disbursed by the lending Institution. The Respondents, on the other hand, took the position that their only obligation was to find a purchaser who was ready, willing and able to complete the transaction, which acts were consummated by their salesman, Jerry Kent.

   
   

3. Based on my examination of the document introduced herein, and the testimony adduced during the hearing, the undersigned concludes that the Respondent's position that it was entitled to receive the commission monies here in dispute has merit. Although the Commission takes the position that an escrow closing occurred, an escrow has been defined as a written instrument which by its term imports a legal obligation and which is deposited by the grantor, promisor, or obligor, or his agent with a stranger or third party to be kept by the depository until the performance of a condition or a happening of a certain event and then to be delivered over to the grantee, promisee, or obligee. It cannot be seriously contended herein that the Respondent Clarke was acting as an escrow for himself when consideration is given to the above definition of an escrow. See Love v. Brown Development Company, 131 So. 144. It is further essential to an escrow that delivery of the instrument be to a stranger or to a

   third person, that is, to one who is not a party to the instrument, or a person so free from any personal or legal identity with the parties to the instrument as to leave them free to discharge his duty as a depository to both parties without involving a breach of duty to either. For example, a deed delivered to a grantee cannot be regarded as held in escrow. Here, Respondent Clarke was in no way acting for anyone other than himself or as agent for his salesman, Jerry Kent, both of whom had a direct stake in the commission proceeds. Additionally, upon examination of the deposit receipt contract, the broker became entitled to the commission proceeds when the buyer (purchaser) was found. Additionally, and as an aside, it was noted that the lending institution in fact recorded its mortgage the day following the closing This would lead any examiner of the public records to believe that the lending institution was satisfied with the title as conveyed on the closing date. It was further noted that the Respondents had no indication that there was a problem with the title until approximately five months following the closing. Finally, the undersigned received a letter from attorney Lipcon dated August 1, 1975, advising that the civil case which was pending before the Dade County Circuit Court involving similar issues as posed herein before the commission had been fully and finally settled. There was a stipulation for dismissal signed by attorneys for each of the parties including the attorney for the firm that made the complaint against the Respondents stating in essence that the monies paid to Respondent Clarke and which was retained by him as full and final settlement of his brokerage commission were to be retained by Respondent Clarke as final payment of his commission in connection of the sale of the subject condominium. For all of these reasons, I shall recommend that the complaint filed herein be dismissed in its entirety.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57 (1), Florida Statutes.

   
   

5. The authority of the Commission is derived from Chapter 475, Florida Statutes.

   
   

6. Insufficient evidence was offered to establish that the Respondents Jeremiah C. Clarke and Clarke Real Estate had violated Chapter 475.25(1)(a),(c),(i), Florida Statutes, as alleged.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law as found above, it is hereby recommended that the complaints filed herein be dismissed in their entirety.

Recommended this 23rd day of August, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

ENDNOTE

1/ The complaint allegations with respect to Helen N. Clarke were dismissed based on a certificate of death introduced into evidence indicating that she died on May 11, 1977. (See Petitioner's Exhibit No. 3)

COPIES FURNISHED:

Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Charles R. Lipcon, Esquire Suite 2262, 1 Biscayne Tower

Miami, Florida 33131

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

AGENCY FINAL ORDER

================================================================= FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION,

An Agency of the State of Florida, Petitioner,

vs. PROGRESS DOCKET NO. 3136

DADE COUNTY

JEREMIAH C. CLARKE and CLARK REAL ESTATE,

Respondents.

/

FINAL ORDER

At a regular fleeting of tile Florida Real Estate Commission held at its Executive Headquarters in Winter Park, Florida, on October 20, 1977,

PRESENT: Maggie S. Lassetter, Chairman

Levie D. Smith, Jr., Vice Chairman Arthur N. Hamel, Member (absent)

APPEARANCES:

Attorney for Petitioner: Bruce I. Kamelhair Attorney for Respondents: Charles R. Lipcon Respondent: Jeremiah C. Clark

This matter came on for Final Order upon the Hearing Officer's Recommended Order, Exceptions entered by the Petitioner, oral argument thereon and the record herein, and the Commission, after reviewing this cause and being fully informed thereof, finds:

1.

That according to the records of the Commission, Jeremiah C. Clarke, a registered real estate broker, lists his address with the Florida Real Estate Commission as 85 W. Enid Drive, Key Biscayne, Florida 33149.

2.

That Clarke Real Estate, a registered real estate broker, is doing business at 85 W. Enid Drive, Key Biscayne, Florida 33149.

3.

That the Petitioner's Exceptions to the Findings of Fact as set forth in the Recommended Order of the Hearing Officer are well taken and should be sustained.

4.

That the Petitioner's Exceptions to the Conclusions of Law as set forth in the Recommended Order of the Hearing Officer "that insufficient evidence was offered to establish that Respondents Jeremiah C. Clarke and Clarke Real Estate had violated Chapter 475.25(1)(a), (c) and (i), Florida Statutes, as alleged" should be sustained.

5.

That the Petitioner's Exceptions to the recommendation of the Hearing Officer as set forth in his Recommended Order are well taken and should be sustained.

6.

The remaining Findings of Fact and Conclusions of Law as set forth in the Recommended Order of the Hearing Officer are supported by competent and substantial evidence in the record and should be adopted as the Findings of Fact and Conclusions of Law of the Commission as modified by the Exceptions of the Petitioner.

IT IS THEREUPON ORDERED that the Findings of Fact and Conclusions of Law of the Hearing Officer with the Exceptions noted above be, and are hereby, adopted as the Findings of Fact and Conclusions of Law of the Commission.

IT IS FURTHER ORDERED that Respondent Jeremiah C. Clarke be, and is hereby, adjudged guilty of violating Subsection 475. 25(1)(a), Florida Statutes, as charged in the Administrative Complaint.

IT IS FURTHER ORDERED that Respondent Jeremiah C. Clarke be, and is hereby, adjudged guilty of violating Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint.

IT IS FURTHER ORDERED that Respondent Jeremiah C. Clarke be, and is hereby, adjudged guilty of violating Subsection 475.25(1)(i), Florida Statutes, as charged in the Administrative Complaint.

IT IS FURTHER ORDERED that Respondent Clarke Real Estate be, and is hereby, adjudged guilty of violating Subsection 475. 25(1)(a), Florida Statutes, as charged in the Administrative Complaint.

IT IS FURTHER ORDERED that Respondent Clarke Real Estate be, and is hereby, adjudged guilty of violating Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint.

IT IS FURTHER ORDERED that Respondent Clarke Real Estate be, and is hereby, adjudged guilty of violating Subsection 475.25(1)(i), Florida Statutes, as charged in the Administrative Complaint.

IT IS FURTHER ORDERED that for the violations, the registration of Respondent Jeremiah C. Clarke be, and the same is hereby, suspended for a period of 90 days, said suspension to be suspended for a like period of time, said Order to be effective on the effective date of this Order as provided by law.

IT IS FURTHER ORDERED that for the violations, the registration of Respondent Clarke Real Estate he, and the same is hereby, suspended for a period of 90 days, said suspension to be suspended for a like period of time, said Order to be effective on the effective date of this Order, as provided by law.

DONE and ORDERED at Winter Park, Florida, this 31st day of October, 1977.

MAGGIE S. LASSETTER

Chairman

P. Smith, Jr. Vice Chairman

I HEREBY CERTIFY that I mailed a copy of the foregoing Final Order to Jeremiah C. Clarke, 85 W. Enid Drive, Key Biscayne, Florida 33149 and to Clarke Real Estate, 85 W. Enid Drive, Key Biscayne, Florida 33149, by United States registered mail this 31st day of October, 1977.

Executive Director

NOTICE TO RESPONDENTS:

This Order shall become effective upon the 30th day of November, 1977. You have a right of review by Appellate Court.

Please comply with this Order.

Docket for Case No: 77-000783

Orders for Case No: 77-000783