vs. ) CASE NO. 78-1164
) JAMES C. VINSON and VINDER, INC., )
Respondents. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, in Courtroom B, Pinellas County Judicial Building, St. Petersburg, Florida, on September 20, 1978, commencing at 10:00 A.M.
For Petitioner: Joseph A. Doherty
For Respondent: James C. Vinson
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
By a six-count administrative complaint filed on January 18, 1978, petitioner charged respondents with violating certain provisions of Chapter 475, Florida Statutes. The complaint was amended at the hearing to delete the name of Henry G. Lawrence, Jr. as a defendent and to add the following language to Count I, paragraph 7:
. . . and further that defendant has failed to maintain the said $3,000.00 earnest money deposit in violation of Section 475.25(1)(i), Florida Statutes.
In general, the complaint charges that respondents violated a lawful order of the petitioner (Count One), and that respondents failed to maintain monies entrusted to them in escrow until disbursement was properly authorized (Counts Two through Five). It is further charged that by reason of the above charges, respondents have been guilty of a course of conduct and practices which show that money may not be safely entrusted to them. (County Six).
At all times pertinent to this proceeding and the charges contained in the administrative complaint, the respondent Vinson was a registered real estate broker and respondent Vinder, Inc. was a registered real estate broker corporation.
In June of 1976, Arthur J. and Claire A. Bittman, as sellers, and Ian
F. and Louise T. MacIntosh, as buyers, entered into a contract for the sale of real property located in Clearwater, Florida. A total earnest money deposit of
$3,000.00 was given to respondent Vinder, Inc. to be placed in escrow. The contract for sale contained a contingency relating to the buyers' ability to obtain an eighty percent mortgage loan. The Bittman-MacIntosh contract did not close because the buyers were unable to obtain financing. Both the buyers and the sellers made demand upon respondent for the $3,000.00 previously placed in escrow.
By letter dated August 26, 1976, respondent Vinson requested an advisory opinion from the petitioner as to the proper disposition of the escrowed monies. On December 7, 1976, the petitioner issued its advisory opinion advising respondents to dispurse the $3,000.00 earnest money deposit to the buyers as a refund under the terms of the contract for sale, and to immediately notify all parties of the advisory opinion.
A check dated December 28, 1976, on the escrow account of Vinder, Inc. with the Sun First National Bank of Dunedin, was received by Mrs. MacIntosh in early January, 1977. Payment on this check was stopped for insufficient funds. Thereafter, respondent Vinson and his wife signed a promissory note to pay
$3,000.00 to Ian and Louise MacIntosh within ninety days from February 15, 1977. On June 20, 1977, a complaint was filed against the Vinsons in the Pinellas County Circuit Court to enforce the promissory note and collect damages. This Court entered its final default judgment on August 16, 1977, against the Vinsons and ordered them to pay the $3,000.00, plus interest, costs and attorney's fees, for a total amount of $3,596.00. As of the date of this administrative hearing, Ian and Louise MacIntosh had not recovered any of this money from the respondent Vinson.
The petitioner introduced into evidence four sets of sales contracts and closing statements which illustrate that earnest money deposits were made to respondent Vinder, Inc. on real estate transactions during the months of March, June and July of 1976, and that said four transactions closed in August and September of 1976. Petitioner also introduced into evidence copies of the "statements of checking account" for the escrow account of Vinder, Inc. with the Bank of Clearwater for the period of July 30, 1976, through November 30, 1976. These statements show that there were overdrafts on August 11, 1976, and September 1, 1976, and that the account was overdrawn on October 29, 1976, and on November 16, 1976.
It appears from the testimony of William Creighton, a former associate and office manager of Vinder, Inc., that an escrow account was also maintained with the Sun Bank of Dunedin. This testimony is also supported by Exhibit 8, the December 28, 1976, check for $3,000.00 drawn on the escrow account of Vinder, Inc. with the Sun Bank.
CONCLUSIONS OF LAW
Florida Statutes, Section 475.25(1)(c), makes it a violation for a registrant to fail to account or deliver monies or deposits which are not his
property or which he is not entitled to retain. Said section further provides, in relevant part, that if the registrant has doubts as to what person is entitled to the accounting and delivery, or if conflicting demands have been made, the registrant may notify and ask for the advice of the Real Estate Commission. Here, the evidence illustrates that respondents did seek the advice of the Commission, such advice was given by the Commission and respondents failed to abide by that advice. Respondent Vinson has further failed to honor the terms of his promissory note and to comply with the final judgment entered by the Circuit Court of Pinellas County with respect to this same $3,000.00 deposit entrusted to him by the MacIntoshes. Having repeatedly failed to deliver monies which respondents were not entitled to retain constitutes a violation of Section 475.25(1)(c) and (d) and provides grounds for suspending the respondents' registrations for a period not exceeding two years. The facts surrounding the MacIntosh transaction do not conclusively illustrate a violation of Florida Statutes, Section 475.25(1)(i), nor does the undersigned find the "advisory opinion" rendered by the Commission to be an "order, rule or regulation" as set forth in Section 475.42(1)(e), Florida Statutes.
Petitioner has failed to demonstrate that respondents have violated the terms of Florida Statutes, Section 475.25(1)(i) with respect to other transactions set forth in Counts Two through Five of the administrative complaint. This section makes it a violation for a real estate broker to fail to immediately place into escrow any money or deposit entrusted to him and to fail to retain the same in escrow until disbursement is properly authorized. While the monthly statements from the Bank of Clearwater to illustrate that that account was overdrawn on certain dates, there was no attempt to prove that respondent maintained only one escrow account. Indeed, the evidence illustrates that Vinder, Inc. maintained an escrow account at another bank, the Sun Bank, at least as of December, 1976. Absent a showing that all monies entrusted to respondent should have been placed and retained only in the Bank of Clearwater escrow account, the monthly statements from the bank, by themselves, prove nothing. Petitioner has failed to demonstrate that respondents did not place deposits into an escrow account or did not retain deposits in escrow pending an authorized disbursement.
Finally, respondents are charged with being guilty of a course of conduct and practices which show that they are so incompetent and negligent, dishonest or untruthful, that monies may not be safely entrusted to them, thus requiring the revocation of their registrations pursuant to Florida Statutes, Section 475.25(3). Petitioner has failed to demonstrate that respondents have been guilty of a "course of conduct or practices" which illustrate incompetence, negligence, dishonesty or untruthfulness. While a violation of Section 474.25(1)(c), and therefore (i)(d), have been proven with respect to the MacIntosh transaction, this event by itself does not demonstrate the "course of conduct or practices" referred to in Section 475.25(3), nor does it adequately demonstrate incompetence, negligence, dishonesty or untruthfulness.
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that:
(2) years.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of October, 1978, in Tallahassee, Florida.
DIANE D. TREMOR
Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1978.
James C. Vinson Route 547
Joseph A. Doherty
