STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION (formerly ) Board of Real Estate), )

)

Petitioner, )

)

vs. ) CASE NO. 81-2404

)

RICHARD FLEISCHMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, November 10, 1982, in Coral Gables, Florida.

Petitioner Department of Professional Regulation, Florida Real Estate Commission (formerly Board of Real Estate), was represented by Michael Colodny, Esquire, North Miami, Florida, and Respondent Richard Fleischman was represented by Manuel E. Oliver, Esquire, Hialeah, Florida.

Petitioner filed an Administrative Complaint charging Respondent with failure to account for and deliver a deposit to the person entitled to said deposit, and Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Respondent and of Steven I. Weissman.

Additionally, Petitioner's Exhibits numbered 1 through 4 were admitted in evidence. The Respondent testified on his own behalf, and Respondent's Exhibit numbered 1 was admitted in evidence.

Only Petitioner has submitted posthearing findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. At all times material hereto, Respondent was a registered real estate salesman having been issued license number 0027286 by the State of Florida, which license was registered with Gibraltar Realty and Management, Inc., 407 Lincoln Road, Miami Beach, Florida.

2. On August 2, 1980, Mr. and Mrs. Oscar Rodriguez responded to an advertisement that Respondent had placed in the Miami Herald offering to lease a certain apartment owned by Respondent and known as Unit 5-A, 710 Northeast 29th Street, Miami, Florida.

   
   

3. Respondent had been advertising that apartment either for lease or for sale for a period of time. At the time, the apartment was unoccupied.

   
   

4. Mr. and Mrs. Rodriguez met with the Respondent at the apartment. Respondent informed them that he was willing to lease the property to them for a period of 18 months at a rental of $2,000 per month with a $5,000 security deposit.

   
   

5. No lease was ever prepared or entered into by the parties, although Respondent knew that a written lease was required to rent the unit under the terms discussed.

   
   

6. Respondent requested Rodriguez to give Respondent a $2500 deposit check, and Rodriguez complied with that request.

   
   

7. Respondent deposited the check into his personal checking account.

   
   

8. Respondent never told Rodriguez that the deposit was not refundable.

   
   

9. Respondent and Rodriguez began discussing a possible purchase of Respondent's apartment rather than a rental. As a result of the continuing discussions, Respondent prepared a Deposit Receipt and Sale-Purchase Contract dated August 7, 1980, and mailed it to Mr. and Mrs. Rodriguez. At the same time, he sent a copy of that proposed contract to Rodriguez' attorney, who was out of the office that week.

   
   

10. After various conversations between the attorney for Mr. and Mrs. Rodriguez and the Respondent, and after the Rodriguez' attorney had met with Respondent and viewed the apartment, Mr. and Mrs. Rodriguez declined to execute the Deposit Receipt and further determined that they would not purchase or lease Respondent's property.

    
    

11. Approximately a week later, Rodriguez made demand on Respondent for return of his $2500. Rodriguez' attorney subsequently made demand on Respondent for the return to Rodriguez of that deposit.

    
    

12. Respondent has failed and refused to return to Mr. and Mrs. Rodriguez the $2500 deposit.

    
    

13. The subject apartment was never removed from the market and was continuously advertised by Respondent for sale or lease during the course of the negotiations with Rodriguez.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

15. The Administrative Complaint filed herein charges Respondent with failure to account for and deliver a deposit to the person entitled thereto in violation of Section 475.25(1)(d), Florida Statutes (1979). That statute provides as follows:

    
    

    1. The board . . . may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administrative fine not to exceed $1,000 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:

       * * *

       1. Failed to account or deliver to

          any person, . . . at the time which has been agreed upon or is required by law, or, in the absence of a fixed time, upon demand of the person entitled to such accounting' and delivery, any personal property such as money, fund, deposit, check, draft, . . . which has come into his hands and which is not his property or which he is not in law or equity entitled

          to retain under the circumstances. However, if the licensee, in good faith, entertains doubt as to what person is entitled to the accounting and delivery of the escrowed property, or if conflicting demands have

          been made upon him for the escrowed property, which property he still maintains in

          his escrow or trust account, the licensee shall promptly notify the board of such doubts and shall promptly:

          1. Request that the board issue an escrow disbursement order

             determining who is entitled to the escrowed property; or

          2. With the consent of all parties, submit the matter to arbitration; or

          3. By interpleader or otherwise, seek adjudication of the matter by a court.

       
       

       If the licensee promptly employs one of the escape procedures contained herein, and if he abides by the order or judgment resulting

       therefrom, no administrative complaint may be filed against the licensee for failure to account for, deliver, or maintain the escrowed property;

16. Petitioner has met its burden of proving that the Respondent is guilty of the allegations set forth in the Administrative Complaint filed herein. Respondent admits that neither a lease nor a sale/purchase contract was executed by Respondent or by Mr. and Mrs. Rodriguez. Accordingly, no contract exists which entitles Respondent to retain the $2500 deposit. Even if a verbal agreement were sufficient to entitle Respondent to retain the deposit, no allegation has been made by Respondent that such a verbal agreement existed. Rather, Respondent admits that he never told Rodriguez that the money was nonrefundable.

    
    

17. Respondent's only allegation in defense of his refusal to return Rodriguez' money to him is that the Respondent incurred some expense and, therefore, maybe the money should be liquidated damages. In support of this argument, the Respondent suggests that he removed some plants from his apartment, which he had placed there in order to make the apartment look more attractive, and the condominium association had the parking lot blacktopped for some unspecified sum of money on an unspecified date, which occurred sometime during the month of August, 1980. There is no connection between the apartment building repaving its parking lot and the Rodriguez' consideration of the possibility of either leasing or purchasing one of the units within that apartment building. On cross-examination, Respondent admitted that he continued to advertise the apartment during the time that he was negotiating with the Rodriguezes.

    
    

18. Respondent argues that Petitioner has no jurisdiction to take disciplinary action against him under the facts of this case, since he was not dealing as a licensee but rather was involved in a real estate transaction on his own behalf. Unfortunately for Respondent, Petitioner does have power to discipline its licensees even when the transaction involves the licensee's own property and even when no commission is involved. Sellars v. Florida Real Estate Commission, 380 So.2d 1052 (Fla. 1st DCA 1980) [wherein the court specifically held the Commission could revoke the license of a broker for violating Section 475.25 (1)(d), Florida Statutes, when selling his own property].

    
    

19. At the formal hearing in this cause, the parties stipulated that Respondent holds a license as a real estate salesman. During Respondent's testimony, he stated that he had passed the real estate broker's examination in January of 1982, No evidence was introduced to indicate whether Respondent has been licensed as a broker or as a broker salesman. Accordingly, only Respondent's real estate salesman license will be referred to in the Recommendation section of this Recommended Order.

    
    

20. In spite of a specific request by the undersigned, Petitioner's attorney declined to suggest an appropriate penalty under the circumstances of this case. Further, neither party has presented any evidence in aggravation or in mitigation of any disciplinary action to be imposed by the Commission.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the Respondent guilty of

the allegations contained within the Administrative Complaint and suspending

Respondent's real estate salesman license number 0027286 for 18 months.

DONE and RECOMMENDED this 16th day of March, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1983.

COPIES FURNISHED:

Michael Colodny, Esquire 626 NE 124th Street

North Miami, Florida 33161

William M. Furlow, Esquire Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32082

Manuel E. Oliver, Esquire

39 East Sixth Street Hialeah, Florida 33010

Harold Huff, Executive Director Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002404

Orders for Case No: 81-002404