STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Florida Real Estate ) Commission, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2837

) STEVE MISHKIN and RIKEN REALTY, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before SHARYN L. SMITH, Hearing Officer with the Division of Administrative Hearings, at the Broward County Courthouse, Fort Lauderdale, Florida on April 2, 1982. The following appearances were entered:

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

Suite 101 Kristin Building

2715 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306

For Respondent: Brian Hal Leslie, Esquire Steve Mishkin 1795 North East 164th Street

North Miami Beach, Florida 33160

No appearance was made by Respondent Riken Realty, Inc.

The issue for determination at the final hearing was whether Respondents' licenses should be revoked, suspended, or other disciplinary action imposed for the acts as alleged in the Administrative Complaint filed on September 29, 1981.

INTRODUCTION

By an Administrative Complaint filed September 29, 1981, the Petitioner Department of Professional Regulation, Florida Real Estate Commission, charged Riken Realty, Inc. as a real estate corporate broker, and Steve Mishkin as a real estate salesman, with violating Section 475.25(1)(b) and (d), Florida Statutes, in that said Respondents were holding a security deposit of $900 which was not properly refunded to its owner, Victor Rosenbloom.

In support of the allegations of the Complaint, Petitioner presented the testimony of Steve Mishkin and Victor Rosenbloom. Petitioner's Exhibits 1 through 8 were received into evidence. Respondent Steve Mishkin testified on his own behalf and presented no further witnesses or documentary evidence.

A Proposed Recommended Order has been filed by the Petitioner. To the extent that those proposed findings submitted by the Petitioner are not reflected in this Order, they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues determined here.

FINDINGS OF FACT

Based upon the documentary evidence and the testimony taken at the hearing, the following relevant facts are found:

1. At all times material hereto, Respondents were licensed by the Florida Real Estate Commission and subject to the jurisdiction of the Department of Professional Regulation. Their license numbers are 0151878 and 0195386, respectively. By previous order of the Board, the license of Respondent Gerald Rosen has been revoked.

   
   

2. At all times material herein, Riken Realty, Inc., was a licensed corporate broker and doing business at 1742 N.E. 163rd Street, North Miami Beach, Florida 33162. Respondent Mishkin was a salesman associated with Riken Realty, Inc., and was the principal owner of said corporation.

   
   

3. At all times material herein, Riken Realty, Inc., had Its escrow account at the Intercontinental Bank, North Miami branch, bearing escrow account number 401-001039. Respondent Mishkin was an authorized signatory on this account.

   
   

4. On or about February 28, 1980, Victor Rosenbloom of Clifton, New Jersey, entered into an oral sublease agreement for the period commencing March 1, 1980 through April of 1980 for premises known as Apartment C 307, Summerwinds Apartment Complex, 494 N.W. 165th Street, North Miami Beach, Florida, at $900 a month. The total rent of $1,800 was paid by Rosenbloom by Traveler's Checks on February 28, 1980 to Riken Realty, Inc. Further, Rosenbloom gave to Riken Realty on March 1, 1980 his Traveler's Checks in the amount of $900 as security damage deposit on said apartment. The lease was negotiated by an associate of Riken Realty, Inc., which had a rental listing on said premises. At all times material herein, Respondent Mishkin was lessee of said premises, subletting to Rosenbloom.

   
   

5. Rosenbloom vacated said premises on April 29, 1980, on which day Respondent Mishkin inspected the premises and found no damages; as a result, no deductions were to be made on said $900 security damage deposit. Rosenbloom requested Mishkin to refund said deposit in full, Respondent Mishkin agreed to said refund and to this effect issued his written statement that a refund would be made by May 15, 1980.

   
   

6. On or about June 14, 1980, Respondent Mishkin issued a refund check to Rosenbloom in the amount of $811.00 on the escrow account of Riken Realty, Inc., bearing check number 1765 and dated June 14, 1980, to the order of Vic Rosenbloom.

   
   

7. The stated check was not honored upon presentation for the reason that the account had been closed on June 17, 1980.

   
   

8. Further, when Respondent Mishkin issued said check the escrow balance was seventy-six cents, which balance occurred on or about May 21, 1980 and continued until the account was closed on June 17, 1980.

9. The stated check for $811.00 was, in fact, insufficient refund since the refund should have been for the full amount of the deposit, specifically,

   $900. Rosenbloom individually and by and through his attorney, made repeated demands both orally and in writing for a full refund of the deposit. Respondent eventually repaid Rosenbloom $811.00 but failed to pay the service charge incurred by the previously transmitted dishonored check and failed to render an accounting for the deductions made from the $900 security deposit.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute. See Section 120.57(1), Florida Statutes.

    
    

11. The Florida Real Estate Commission, within the Department of Professional Regulation, is empowered to take disciplinary action against a real estate broker or a salesman if he is found guilty of any of the acts specified in Section 475.25, Florida Statutes. Respondents have been charged with violations of Subsections (b) and (d) of Section 475.25(1), Florida Statutes, which read as follows:

    
    

    (b) Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in this state, nation, or territory; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and has committed an overt act in furtherance of such intent, design or scheme. It shall be immaterial to the guilt of the licensee that the victim or intended victim of

    the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or

    that such victim or intended victim was a customer or a person in confidential relation with the licensee, or was an identified member of the general public;

    (d) Failed to account or deliver to any person, including a licensee under this chapter 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,

    abstract of title, mortgage, conveyance, lease, or other document or thing of value, including a share of real estate commission, or any secret or illegal profit, or any divisible

    share or portion thereof, 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.

    
    

12. The facts in this proceeding are essentially uncontested and support violations of the subsections charged. Respondent Mishkin's actions in refusing and delaying to refund security deposit monies which belonged to Rosenbloom, and eventually delivering a trust account check which did not clear are aggravating factors. By failing to refund the security deposit as required by law and as agreed, Respondent Mishkin caused Rosenbloom to retain counsel at his own expense to collect monies which were to be delivered to him on or before May 15, 1980. These actions were the direct responsibility of both of the Respondents named in this proceeding as joint signatories on the account and parties to the agreement made with Rosenbloom.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, It is RECOMMENDED:

That Riken Realty, Inc. and Steve Mishkin be found guilty of violating Section 475.25(1)(b) and (d), Florida Statutes, and their licenses be suspended for a period of six (6) months. Since Respondent Gerald Rosen's license has already been revoked, the charges against him should be dismissed.

DONE and ORDERED this 7th day of October, 1982, in Tallahassee, Florida.

SHARYN L. SMITH, 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 7th day of October, 1982.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101 Kristin Bldg.

2715 East Oakland Park Blvd. Ft. Lauderdale, Florida 33306

Brian Hal Leslie, Esquire 1795 North East 164th Street

North Miami Beach, Florida 33160

Riken Realty, Inc.

1742 North East 163rd Street North Miami Beach, Florida 33162

Carlos B. Stafford, Executive Director Florida Real Estate Commission

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

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002837

Orders for Case No: 81-002837