vs. ) CASE NO. 82-2934
Respondent. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings on May 18, 1983, in Coral Gables, Florida.
Petitioner Department of Professional Regulation, Florida Real Estate Commission was represented by Bruce D. Lamb, Esquire, Tallahassee, Florida, and Respondent Robert Jimenez was represented by Martin I. Carlin, Esquire, Miami, Florida.
Petitioner filed an Administrative Complaint seeking to suspend, revoke or take other disciplinary action against the Respondent as licensee and against his license to practice real estate under the laws of the State of Florida.
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 Lewis F. Gonzalez, Doris D. Colon, Alvin Katzif, and Cornelius L. Reagan. Additionally, Petitioner's Exhibits numbered 1 through 12 were admitted in evidence. The Respondent testified on his own behalf. The Petitioner submitted post hearing proposed findings of fact in the form of a proposed recommended order, and the Respondent submitted an answer to proposed recommended order. To the extent that any proposed findings 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.
At all times material here to, Respondent has been a licensed real estate broker under the laws of the State of Florida, having been issued license number 0044295.
On or about June 4, 1981, Respondent, representing himself to Doris Colon as the duly appointed, qualified and acting broker for Alvin Katz if, and
representing that Alvin Katzif was the owner of certain real property located at 636-638 Southwest Eighth Avenue, Miami, Florida, accepted from Colon a written offer to purchase said property.
Colon's offer was accompanied by a deposit of $5,000, receipt of which was acknowledged by Respondent on or about June 6, 1981.
That deposit was delivered to the Respondent, as broker, to be held by him in escrow under the terms of the Deposit Receipt.
The vendor named in the Deposit Receipt Agreement Alvin Katzif, was unable to sell the property in accordance with the terms expressed in that Deposit Receipt Agreement. Therefore, the sale was never consummated.
Approximately one month after signing the Deposit Receipt Agreement, Alvin Katzif advised Respondent that he did not hold title to the property and that there were numerous and diverse claims to the property.
Respondent never placed Colon's $5,000 deposit in an escrow account but rather placed the deposit in a personal account.
Colon, through counsel, made a demand for the $5,000 earnest money deposit.
Respondent failed to provide Colon with an accounting or delivery of her deposit until such time as she obtained a civil judgment against him. At no time did Respondent request an escrow disbursement order or submit the matter to arbitration or seek interpleader.
Respondent converted Colon's $5,000 earnest money deposit to his own
use.
On or about the same day that Colon gave Respondent her $5,000 deposit
made payable to him, Respondent gave Colon a check for $10,000 made payable to her. The $10,000 paid to Colon was not a loan to her and had no relation to the Katzif/Colon transaction. Rather, the $10,000 was a deposit toward the purchase of a duplex owned by Colon in which Respondent was then living as a tenant and which he desired to purchase from Colon. That transaction was completed, and the closing took place on August 12, 1981. The closing statement reflects credit given to Respondent of $10,000 toward the purchase price of the duplex he bought from Colon. The duplex Colon sold to Respondent is located at 2931-41 Southwest Sixth Street, Miami, Florida.
When Respondent gave Colon his $10,000 deposit toward the purchase price of the duplex which he bought from her, he took her to friends of his at Intercontinental Bank, where she opened an account. She then wrote the $5,000 check out of that account, which check was the deposit which accompanied her offer on the property she wished to purchase from Katzif. In other words, the only relationship between the $10,000 check given to Colon by Respondent and the
$5,000 check given to Respondent by Colon is that the fact that Respondent gave Colon a $10,000 down payment on the duplex he was purchasing from her gave Colon the opportunity to make an offer on the Katzif property using $5,000 of the
$10,000 as a deposit on the offer to Katzif.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).
The Administrative Complaint filed herein charges Respondent with violating Sections 475.25(1)(b), (d) and (k), Florida Statutes, which read as follow:
475.25 Discipline.--
(1) The board may deny an application for licensure or renewal, 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:
* * *
(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 or any other 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, . . . 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:
Request that the board issue an escrow disbursement order determining who is entitled to the escrowed property; or
With the consent of all
parties, submit the matter to arbitration; or
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 there from, no administrative
complaint may be filed against the licensee for failure to account for, deliver, or maintain the escrowed property;
* * *
(k) Failed, if a broker, to
immediately place, upon receipt, any money, fund, deposit, check, or draft entrusted
to him by any person dealing with him as a broker in escrow with a title company, banking institution, or savings and loan association located and doing business in Florida, or to deposit such funds in a trust or escrow account maintained by him with some bank or savings and loan association located and doing business in Florida, wherein the funds shall be kept until disbursement thereof is properly authorized;
Petitioner has clearly met its burden of proving that Respondent failed to immediately place in escrow, upon receipt, any money, deposit, check or draft entrusted to him by any person dealing with him as a broker, and has failed to maintain said funds in escrow until disbursement thereof has been properly authorized, in violation of Section 475.25(1)(k), Florida Statutes, as alleged in Count One of the Administrative Complaint filed herein. Even Respondent admitted he did not deposit Colon's $5,000 check into an escrow or trust account but rather deposited that check into his personal account and spent it.
Petitioner has clearly met its burden of proving that Respondent failed to account or deliver to any person entitled to such accounting and delivery any personal property such as money, fund, deposit, check or draft which has come into his hands and which is not his property and which he is not entitled to retain, in violation of Section 475.25(1)(d), Florida Statutes, as alleged in Count Two of the Administrative Complaint. Respondent was not
entitled in law or equity to retain Colon's $5,000 deposit. When the seller of the property was unable to comply with the terms of the agreement and so advised Respondent one month after the Deposit Receipt Agreement was entered into, Colon became entitled to an accounting and to delivery of her money from Respondent.
Petitioner has clearly met its burden of proving that Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing and breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes, as alleged in Count Three of the Administrative Complaint. Respondent's actions throughout this matter evidence intentional and gross misconduct on his part. He took a purchaser's deposit money and placed that $5,000 in his personal checking account and spent it. He failed to acknowledge demands made on him by Colon, through her attorney, for the return of her money. He required that Colon file litigation against him and proceed to final judgment against him before he would pay back to her that deposit. At the formal hearing in this cause, Respondent testified to a "loan made by him to Colon. Under Respondent's theory, he gave Colon
$10,000, and she immediately--on the same day--gave him back $5,000. Not only does Respondent's contention fall short of any test of common sense, his "loan" theory is contrary to the testimony of every witness and every exhibit admitted into evidence in this cause. For example, the $10,000 check Respondent gave to Colon states on its face that it is a part-payment on the purchase of the duplex at 2931-41 Southwest Sixth Street, the address of the duplex owned by Colon. On the date that his check was written to Colon, Colon gave Respondent a receipt for that check, which receipt recites that the $10,000 is a deposit toward the purchase of her duplex and which receipt is written on Respondent's business stationery. Two months later, the transaction whereby Respondent purchased Colon's duplex was closed, and the closing statement recites credit given for the $10,000 deposit paid by Respondent. Thus, the transaction forming the basis for the Administrative Complaint filed in this cause does not reveal a single incidence of fraud and dishonest dealing but rather reveals a continuing series of fraudulent and false actions.
In its proposed recommended order, Petitioner has recommended that Respondent's license be revoked. No evidence has been offered in mitigation of such a severe penalty; rather, Respondent's continuing conduct in this matter gives strong support to the fairness of that recommendation, which appears necessary in order to protect members of the public.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the
estate broker license number 0044295.
DONE and RECOMMENDED this 10th day of August, 1983, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1983.
Bruce D. Lamb, Esquire Department of Professional
Martin I. Carlin, Esquire 3000 Biscayne Boulevard,
William M. Furlow, Esquire Department of Professional
