STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD ) OR REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-0945

)

WILLIAM O'BRIEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held public hearings in this case on December 17, 1980, and June 3, 1981, in Fort Lauderdale, Florida. 1/

APPEARANCES

For Petitioner: John Huskins, Esquire

Department of Professional Regulation

130 North Monroe Tallahassee, Florida 32301

For Respondent: Dewey A. F. Ries, Esquire

215 Northeast 3rd Street

Ft. Lauderdale, Florida 32301 PROCEDURAL BACKGROUND

The issue posed for decision herein is whether or not the Respondent failed to deliver, upon demand, a security deposit and thereafter tendered a check which was returned due to insufficient funds when presented for payment and therefore engaged in acts and/or conduct violative of Chapter 475.25(1)(d), Florida Statutes (1979).

FINDINGS OF FACT

Based upon my observations of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

1. By its one-count Administrative Complaint filed herein on April 3, 1980, the Petitioner, Department of Professional Regulation, Board of Real Estate, alleged that the Respondent, William O'Brien, violated Section 475.25(1)(d), Florida Statutes (1979), due to his failure to deliver a security deposit to a property owner and that Respondent thereafter tendered a protion of the deposit in the form of a check which, when presented for payment, was not honored due to insufficient funds.

2. During times material, Respondent was licensed by Petitioner and is the holder of Florida Real Estate License No. 168869.

   
   

3. Gary ;Heide is the owner of the duplex apartment situated at 2407 Northeast 33rd avenue, Fort Lauderdale, Florida.

   
   

4. The pertinent facts surrounding the allegations herein are, for the most part, simple and undisputed. The subject premises had been leased by owner Heide to Maurice L. LaReau.

   
   

5. LaReau had leased the premises for approximately eleven (11) months when he found a residence that he intended to purchase and was therefore desirous of subletting the subject property with the owner's permission in an acceptable manner such that he would not incur any losses due to his vacating the premises prior to the expiration of the lease term. He, therefore, approached owner Heide and advised him of his intentions. According to LaReau, Heide gave him "carte blanche" authority to find a tenant to sublease the apartment but that he would appreciate it if he would "screen" the sub-lessee. Heide suggested that LaReau place an ad in the newspaper to secure a tenant and he also made known to LaReau his overall objective of not sustaining any loss of rents due to a vacancy in the apartment. During that conversation Heide also advised LaReau that he would be leaving for a vacation in Germany shortly.

   
   

6. When LaReau leased the subject premises from Heide he entered a twelve

   (12) month lease and paid a $900.00 fee which included the first and last month's rent plus a security deposit.

   
   

7. During times material, Respondent was the registered corporate broker for Exclusively Rentals and Management Company (Exclusively). Through the efforts of Respondent and Exclusively, Gregory A. Costa, III, was secured as a tenant to sublet the subject property from Maurice LaReau on or about October 8, 1977. Respondent had been approached by owner Heide to manage the subject property while Respondent was visiting an apartment complex adjacent to the Heide property on which Exclusively had the managing contract.

   
   

8. According to the agreed terms for the subletting of the Heide property from LaReau to Costa, Costa agreed upon an occupancy date of October 15, 1977, for a total rental of $150.00 plus payment for the twelfth month rent for a fee of $300.00; a security deposit of $300.00 and a $150.00 commission to Exclusively for a total of $900.00. This amount was paid to tenant Maurice LaRaeau. Exclusively retained the agreed upon commission which represented on- half the monthly rental, or a fee of $150.00 See Respondent's Exhibit 1. Additionally, Messer. LaReau signed an agreement representing that the subletting was done with owner Heide's knowledge and was in accordance with his instructions. (Respondent's Exhibit 2).

   
   

9. Upon returning from Germany, owner Heide became upset that LaReau had sublet the premises to Costa and contended that the subletting was only to have been done through the aid and assistance of another rental management firm know as Home Finders Real Estate Brokers. Heide contended that Audrey Lester was the only agent connected with that firm who had the authority to accept tenants or sub-lessees in his absence. Heide, therefore, contended that he was entitled to recoup from Respondent, through its corporate entity, Exclusively Rentals and Management Company, the entire $900.00 in addition to a continued retention of the $900.00 deposit which had been paid by the tenant, LaReau.

10. Although Heide contended that he never used Exclusively to rent or otherwise secure tenants for any of his apartments, he acknowledged that he signed a new lease and accepted Costa as a tenant for the subject property.

    
    

11. Heide's other complaint with Respondent is that a check dated November 10, 1977, in the amount of $150.00 and signed by Michael J. Cochran was not honored when presented for payment due to insufficient funds. An examination of that check does not reveal that it was returned by the bank upon which it was drawn or that it was even presented for payment as testified to by Messer. Heide (see Petitioner's Exhibit D).

    
    

12. Respondent was approached by owner Heide to act as an agent to secure tenants for his property as vacancies occurred while Respondent was visiting an adjoining rental property through which Respondent's agency represented, the Ocean Gardens Apartment building. Heide also visited Respondent's office building prior to the subject incident (TR. 37 of the June 3, 1981, hearing). Respondent did not sustain any loss of rents due to the subletting of the subject property from LaReau to Costa through the efforts of Respondent and/or Exclusively Rentals and Management.

    
    

13. Respondent credibly testified that there were ample monies in the account of Exclusively to pay the $150.00 check drawn by that firm to owner Heide in November of 1977, had it, in fact, been presented for payment. Respondent severed his relations with Exclusively and advised all of the associates of that severance during December of 1977. 2/

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. The parties were duly noticed pursuant to the notice provision of Chapter 120, Florida Statutes.

    
    

16. The authority of the Petitioner, Board of Real Estate, is derived from Chapters 455 and 475, Florida Statutes.

    
    

17. During times material, Respondent was a licensed real estate broker and was the holder of license No. 168869. As such, Respondent was subject to the disciplinary sanctions contained in Chapters 455.227 and 475.25, Florida Statutes (1979).

    
    

18. Insufficient evidence was offered to establish that the Respondent failed to deliver, upon demand, a security deposit or that Respondent tendered a check representing a return of a security deposit which, when presented for payment, was returned due to insufficient funds, in violation of Chapter 475.25(1)(d), Florida Statutes (1979)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby,

RECOMMENDED:

1. That the Administrative Complaint filed herein be DISMISSED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of July, 1981.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1981.

ENDNOTES

1/ The hearing was bifurcated at the conclusion of the Petitioner's case in chief, due to the unavailability of a witness necessary to Respondent's defense of the allegations herein. Thereafter, the hearing was continued, on two occasions for good cause shown to the Hearing Officer. The hearing officially closed June 23, 1981 the date on which the Division received a final transcript.

2/ Although the testimony of Heide and Respondent is in conflict on several matters, including the fact that the Respondent and/or Exclusively Rentals had no authority to accept tenants or otherwise sublease his property and the fact that the subject deposit check was not honored when presented for payment, Respondent's testimony plus the corroborative testimony of Messrs. LaReau, Petitioner's Investigator, James Allen Burns, and the documentary evidence received, reveal that Respondent's testimony is more trustworthy and worthy of belief than the version of the events as testified to by owner Heide.

Therefore, to the extent that Respondent's testimony differs from the version as testified to by Heide, Respondent's testimony is credited.

COPIES FURNISHED:

John Huskins, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dewey A. F. Ries, Esquire

215 N. E. 3rd Street

Ft. Lauderdale, Florida 33301

Docket for Case No: 80-000945

Orders for Case No: 80-000945