vs. ) CASE NO. 82-3337
Respondent. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 28, 1983, in Coral Gables, Florida.
Petitioner Department of Professional Regulation, Florida Real Estate Commission, was represented by Tina Hipple, Esquire, Orlando, Florida; and Respondent Robert Marriott was represented by David I. Schlosberg, Esquire, Miami, Florida.
Petitioner filed an Administrative Complaint seeking to suspend, revoke, or take other disciplinary action against Respondent as licensee and against his license as a real estate broker/salesman 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 Rafael Penalver and Orlando Villacis.
Additionally, Petitioner's Exhibits numbered 1 through 13 were admitted in evidence. The Respondent testified on his own behalf.
Although both parties requested leave to file proposed recommended orders, only Petitioner submitted posthearing proposed findings of fact in the form of a 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 hereto, Respondent Robert Marriott has been a licensed real estate broker/salesman under the laws of the State of Florida, trading as Marriott Realty.
In February of 1980, in his capacity as a real estate broker/salesman, Respondent obtained an offer to purchase commercial property in Miami from Orlando Villacis, a resident of Ecuador, as purchaser, for a total purchase price of $500,000. In conjunction with the offer, Villacis paid a $20,000 earnest money deposit to be held by Marriott Realty in escrow under the terms of the offer.
Villacis' deposit check in the amount of $20,000 was deposited into the Marriott Realty escrow account on February 22, 1980.
By March 11, 1980, Villacis' $20,000 had been withdrawn, leaving an escrow account balance of $40. This fact was never reported to Villacis.
Having heard nothing definite from Respondent with regard to the offer, and because he spent most of his time out of the country, Villacis engaged the services of attorney Rafael Penalver. Prior to July 1980, Penalver contacted the Respondent and inquired as to the status of the offer. Each time, Respondent told him that the seller was still considering the offer. In July of 1980, Respondent told Penalver that the $500,000 offer had been rejected by the seller and recommended that Villacis present an offer for $570,000. Penalver prepared the offer in the amount of $570,000, again calling for a $20,000 earnest money deposit, which Penalver and Villacis assumed was still in the Marriott Realty escrow account.
Receiving no response from Respondent on the second offer, Penalver attempted to contact Respondent by telephone on numerous occasions. When Penalver was successful, Respondent told him that the seller was reviewing the offer. In early September 1980, Respondent advised Penalver that the $570,000 offer had been rejected by the seller. By letter dated September 11, 1980, Penalver raised the offer to $600,000, set a deadline of September 19 for the acceptance of the offer, and directed Respondent to return the $20,000 immediately should the offer not be accepted.
After September 19, having heard nothing from the Respondent, Penalver called him, at which time Respondent advised that the offer was being considered by the seller.
Penalver then wrote a letter dated October 7, 1980, to Respondent demanding that Respondent deposit the $20,000 into Villacis' account. Again hearing nothing from Respondent, Penalver on numerous occasions attempted to contact him by telephone in order to again demand the immediate return of the
$20,000 deposit. Being unsuccessful, Penalver wrote the Respondent on November 20, 1980, and January 22, 1981, both times demanding the return of the $20,000 earnest money deposit.
After the letter of January 22, 1981, Respondent agreed to meet with Penalver in Penalver's office.
On February 2, 1981, the Respondent and his wife met with Penalver. During that meeting, Respondent advised Penalver that the $20,000 was no longer available and that he and his wife had used the money to make mortgage payments and cosmetic improvements on their personal residence. Respondent challenged Penalver to sue him to get the money back.
After discussing Respondent's position with Villacis, Penalver filed a civil action for return of the $20,000. In his Answer to the Complaint filed in that litigation, Respondent admitted that he had used the $20,000 deposit for
mortgage payments and other personal household expenses and for payment of his IRS tax deficiency.
Villacis obtained a Final Judgment in the civil action in the amount of $20,000 plus interest and costs on October 6, 1982.
Respondent testified that he did not return the $20,000 earnest money deposit because, in approximately October 1980, Villacis verbally agreed to loan the $20,000 to Respondent. Villacis strongly denied making any offer of a loan to Respondent. The purported loan agreement would have occurred after Penalver had twice written Respondent regarding immediate return of the $20,000 and seven months after the $20,000 had disappeared from the escrow account. Further, after Penalver sent his November demand letter, Respondent wrote Villacis in December of 1980 asking that Villacis consider loaning Respondent the $20,000 in exchange for an unrecorded mortgage on Respondent's personal residence.
Clearly, Respondent's testimony is not credible.
As of the date of the formal hearing in this cause, the Final Judgment in favor of Villacis and against Respondent remained unpaid and Respondent had still not returned to Villacis the $20,000 earnest money deposit.
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.
The Administrative Complaint filed herein charges that the Respondent has violated three provisions of Section 475.25(1), Florida Statutes (1979), as follows:
* * *
(b) Been guilty of . . . dishonest dealing . . . or breach of trust has violated a duty imposed
upon him by law . . . in a real estate transaction. . . .
(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, abstract of title, mortgage, conveyance, lease, or other document or thing of value, . . . which is not his property or which he is not in law or equity entitled to retain under the circumstances. . .
* * *
(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, . . . wherein the funds shall be kept until disbursement thereof is properly authorized.
The Respondent's position that he was entitled to retain the $20,000 earnest money deposit because Villacis agreed to loan him that money is not credible and has been rejected. Respondent failed to even proffer the terms of this purported verbal agreement. Further, Respondent's position that there was such a verbal agreement is not a defense to the withdrawal of the deposit from his escrow account seven months earlier and his continued failure to return the
$20,000 by the time of the formal hearing, almost four years after he received from Villacis the escrow deposit. Section 21V-14.11, Florida Administrative Code, provides that:
No broker who receives a deposit shall have any right to or lien upon said deposit, except upon the written agreement or order of the depositor so long as the depositor has sole control of said deposit. . .
The record establishes a series of demands upon Respondent for return of the $20,000, including a civil lawsuit. The $20,000 is clearly not Respondent's property, and he was not entitled to it. Thus, Respondent is in violation of Section 475.25(1)(d), Florida Statutes (1979).
By Respondent's own admission, he has failed to maintain the funds in an escrow account until the disbursement was authorized, instead using the deposit to pay the mortgage on his personal residence, renovate his personal residence, and pay an outstanding federal tax deficiency. Thus, Respondent is in violation of Section 475.25(1)(k), Florida Statutes (1979).
During the course of his dealings with Villacis and Villacis' attorney, Penalver, as evidenced by Respondent's testimony at the formal hearing in this matter, the Respondent has failed to appreciate the gravity of the charges against him or the consequences of his actions. Respondent continues to refuse to accept responsibility for converting the earnest money deposit to his own use. Petitioner has clearly proven that Respondent is guilty of dishonest dealing and breach of trust in a real estate transaction in violation of Section 475.25(1)(b), Florida Statutes (1979).
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
allegations contained within the Administrative Complaint filed against him and revoking his license as a real estate broker/salesman.
DONE and RECOMMENDED this 30th day of April, 1984, 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 30th day of April, 1984.
David I. Schlosberg, Esquire
