STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2173

)

MARK D. GABISCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Stephen Dean, held a formal hearing in this case on November 15, 1984, in Clearwater, Florida.

APPEARANCES

For Petitioner: James R. Mitchell

Contact Attorney for

Department of Professional Regulation

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

For Respondent: No appearance

ISSUES PRESENTED

Whether Respondent's real estate broker's license should be disciplined for dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction contrary to Subsection 475.25(1)(b), Florida Statutes and for having failed to maintain deposits received in a trust or escrow bank account maintained by the Respondent until disbursement thereof was properly authorized contrary to Subsection 475.75(1)(k), Florida Statutes. Due to the Respondent's failure to receive the Notice of Hearing the Hearing Officer continued the date of final hearing to November 15, 1984, in Clearwater, Florida and notice was provided to the Respondent's last known official address. At the hearing, held November 15, 1984, the Department called Vivian C. Firmin, Sandy MacWatters, Angela Damalos, James Damalos, Rosie Hazealeferiou, Paul Hazealeferiou, Georgia White and Alan E. Shevy as witnesses. Petitioner's Exhibits 1 through 12 were received into evidence. The Respondent failed to appear and no witnesses were called on behalf of the Respondent nor exhibits submitted into evidence on behalf of the Respondent. Proposed findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached or were not supported by competent and substantial evidence.

FINDINGS OF FACT

1. At all times pertinent to the charges, the Respondent, Mark D. Gabisch was a licensed real estate broker in the State of Florida, license number 0189069. (Petitioner's Exhibit #12).

   
   

2. Georgia M. White, a licensed real estate salesman in the State of Florida was employed by the Respondent until September 1, 1983.

   
   

3. On July 27, 1983, Ms. White obtained a written offer for the purchase of real property from James and Angela Damalos and Paul and Rosie Hazealeferiou as purchasers. (Petitioner's Exhibit #7).

   
   

4. The terms of the contract called for a $500.00 earnest money deposit. On July 27, 1983, Mr. and Mrs. Damalos and Mr. and Mrs. Hazealeferiou each issued a check to the Respondent's escrow account in the amount of $250.00 for a total deposit of $500.00. (Petitioner's Exhibits #1 and 9). The $500.00 deposit was placed in the Respondent's escrow bank account (Petitioner's Exhibit #4).

   
   

5. The contract for Sale and Purchase was presented to the sellers by Ms. White and the contract was rejected and no counter-offer was made. This information was passed on to the purchasers by Ms. White and the purchasers requested the return of their deposit.

   
   

6. On August 11, 3.983, the Respondent issued from his escrow bank account Check No. 102 in the amount of $250.00 payable to Mr. and Mrs. Hazealeferiou.

   On the same day the Respondent issued from his escrow bank account Check No. 103 in the amount of $250.00 payable to Mr. and Mrs. Damalos. (Petitioner's Exhibits #2, 3, 8 and 10).

   
   

7. Checks 102 and 103, identified in paragraph 6 above, were deposited by the purchasers, dishonored by the bank upon presentment, and returned stamped "insufficient funds." (Petitioner's Exhibits #2, 3, 5, 8 and 10).

   
   

8. Mrs. Damalos contacted Ms. White and informed her that the escrow checks had been returned for insufficient funds. Ms. White, on her own accord, contacted Respondent and eventually the purchasers received their deposit back in cash.

   
   

9. The Respondent, in a letter to Mr. Alan Shevy, Investigator with the Department of Professional Regulation, admitted that he had misused the escrow funds and acknowledged his guilt in the matter. (Petitioner's Exhibit #11).

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes, (1983).

    
    

11. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes, (1983).

    
    

12. The Petitioners authority is derived from Chapter 475, Florida Statutes, (1983).

13. Section 475.25(1)(b), Florida Statutes, authorizes the Florida Real Estate Commission to suspend or revoke a real estate license, or impose an administrative fine not exceeding $1,000.00 for each separate offense, if it finds that a licensee has been guilty of ". . . dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction . . . "

    
    

14. Section 475.25(1)(k), Florida Statutes, authorizes the Florida Real Estate Commission to impose the same penalties as stated above if it finds that a broker has failed to maintain a deposit received in trust in a trust or escrow bank account until disbursement thereof is properly authorized.

    
    

15. The Administrative Complaint charges the Respondent with violating the above cited Statutes by failing to maintain in escrow a $500.00 deposit received in trust pursuant to a real estate transaction.

    
    

16. It is clear from the evidence that on July 27, 1983, Georgia M. White, a licensed real estate salesman employed by the Respondent, obtained a Contract for Sale and Purchase from prospective purchasers James and Angela Damalos and Paul and Rosie Hazealeferiou. That pursuant to the contract a $500.00 deposit was required to be placed in escrow. That Mr. and Mrs. Damalos and Mr. and Mrs. Hazealeferiou each tendered a $250.00 check to the Respondent and said checks were placed in the Respondent's escrow account. The Contract for Sale and Purchase was presented to the sellers and rejected and no counter-offer was made. The prospective purchasers requested the return of the $500.00 deposit and on August 11, 1983, the Respondent issued two checks from his escrow account, each in the amount of $250.00, made payable to each of the purchasers. The purchasers deposited these checks into their own personal bank accounts and said checks were dishonored for insufficient funds. The Respondent eventually tendered $250.00 in cash to Mr. and Mrs. Damalos and $250.00 in cash to Mr. and Mrs. Hazealeferiou. Finally, the Respondent, in a letter directed to the Investigator, Alan E. Shevy, admitted in his own words that he had misused the escrowed funds and acknowledged his guilt.

    
    

17. The evidence as presented fails to show the Respondent is guilty of dishonest dealing by trick, scheme or device. However, the evidence is clear, based on the Respondent's failure, for whatever reason, to maintain in an escrow account monies entrusted to him, the Respondent is guilty of culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b) Florida Statutes, (1983).

    
    

18. Further, the same conduct constitutes failure to maintain funds given to keep in trust in escrow until disbursement thereof was properly authorized, which is a violation of Subsection 475.25(1)(k), Florida Statutes, (1983).

RECOMMENDATIONS

Based on the foregoing Finds of Fact and Conclusions of Law it is hereby RECOMMENDED:

That the Respondent's Mark D. Gabisch, license as a real estate broker, be suspended for a period of six months and that he pay an administrative fine of

$1,000.00.

DONE and ORDERED this 20th day of December, 1984 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 20th day of December, 1984.

COPIES FURNISHED:

Mr. Mark D. Gabisch 1443 Otten

Clearwater, Florida 33515

James R. Mitchell, Esquire Department of Professional

Regulation

Division of Real Estate

400 West Robinson Street

P.O. Box 1900

Orlando, Florida 32802

Mr. Harold Huff Executive Director

Department of Professional Regulation

Division of Real Estate Post Office Box 1900 Orlando, Florida 32802

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-002173

Orders for Case No: 84-002173