STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5414

)

RICHARD A. ANGLICKIS and ) AMERICAN HERITAGE REALTY, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on May 22, 1990, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

DPR - Division of Real Estate

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

For Respondents: Robert P. Henderson, Esquire

1619 Jackson Street Post Office Box 1906

Fort Myers, Florida 33902 STATEMENT OF THE ISSUES

Whether the Respondents' real estate licenses should be disciplined based upon the alleged multiple violations of Chapter 475, Florida Statutes, which are set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

In an Administrative Complaint filed August 17, 1989, the Petitioner, Department of Professional Regulation (the Department), charged the Respondents, Richard A. Anglickis (Anglickis) and American Heritage Realty, Inc. (American) with a series of violations of Chapter 475, Florida Statutes. Essentially, the Respondents are charged with failing to properly maintain a real estate brokerage escrow account. In some instances, personal funds were allegedly comingled with escrow account funds. At other times, interested parties were not notified that their funds had been placed in an interest bearing account.

This alleged misconduct, along with the two prior disciplinary actions imposed by the Commission on Respondent Anglickis, resulted in the charge that

Respondent Anglickis is guilty of a course of conduct or practices which show that he may not be safely entrusted by investors or those with whom he maintains a realtor relationship. Based on these charges, the Department seeks to discipline the Respondent's real estate licenses.

The Respondents contested the factual allegations contained in the Administrative Complaint, and requested a formal administrative hearing to dispute the charges.

During the hearing, the Department presented the testimony of one witness and submitted four exhibits. The Respondents called three witnesses, and Respondent Anglickis testified on his own behalf and on behalf of Respondent American. Five exhibits were filed by Respondents. All exhibits submitted by the parties were accepted into evidence. (Petitioner's Exhibit #3 and Respondents' Exhibit #1 are the same exhibit and should be considered as a joint exhibit).

A transcript of the proceedings was not filed with the Hearing Officer. Pursuant to stipulation, proposed recommended orders were timely filed by the parties on June 8, 1990. Rulings on the proposed findings of fact are in the Appendix of the Recommended Order.

FINDINGS OF FACT

1. The Department is the agency charged with the responsibility to prosecute violations of Chapter 475, Florida Statutes, allegedly committed by real estate brokers who are licensed in Florida.

   
   

2. At all times material to these proceedings, Respondent Anglickis was a licensed real estate broker, having been issued licensed number 00001869 through the Division of Real Estate. Respondent American was a corporation registered as a real estate broker, having been issued license number 0169478. Both licenses were issued to the following address: 102 East Leeland Heights Boulevard, Lehigh Acres, Florida 33936. Respondent Anglickis was the qualifying broker for Respondent American, and held the office of president within the corporation.

   
   

3. On April 19, 1989, the Respondents' accounting records were reviewed in a random, routine audit conducted by an investigator with the Division of Real Estate as part of the agency's regulatory functions.

   
   

4. During the audit, the investigator determined that Sun Bank Account No. 013684, which was maintained by the Respondents in order to hold funds entrusted to them in pending real estate transactions, contained an overage of $9,639.83. According to the real estate company's records that were presented to the investigator, these funds were not being held for the benefit of any parties to any pending real estate transactions.

   
   

5. At hearing, the Respondents' presented evidence to show that the funds in question in this particular trust account had been deposited as part of a number of pending real estate transactions involving installment lot sales from May 1986 through December 1986. During this time period, Respondent Anglickis was handling the bookkeeping matters within the company. He undertook this responsibility until he was able to find a replacement for the previous bookkeeper, who left on short notice. All the disbursements of funds were made

   on behalf of the buyers and sellers in the installment lot sales transactions except for the commissions belonging to the Respondent American. These funds were left in the trust account by Respondent Anglickis.

   
   

6. When the new bookkeeper was hired, she reconciled the accounts every month from the time she came to the real estate company. The $9,639.83 was carried forward every month, and was never discussed again once the bookkeeper learned the money belonged to Respondent American early in her employment. This resulted in the isolation of these funds in the pending sales escrow account even though the sales had been completed and the files were considered as closed files within the office.

   
   

7. By the time the evidence was presented at the administrative hearing, the Respondents had gone through the closed accounts involved in the installment lot sales during the period in question during 1986. The overage was shown to be the amount due to Respondent American for commission from these sales. These funds were then removed from the pending sales escrow account.

   
   

   Interest Bearing Sales Escrow Account

   
   

8. In addition to the sales escrow/trust account at Sun Bank, the Respondents maintained an interest bearing account for the same purpose at the First Federal Savings and Loan Association of Fort Myers, Account No. 101222355.

   
   

9. Unless a real estate client specifically allowed the Respondents to place the funds involved in a pending sale into an interest bearing account, they were required to place the funds in a non-interest bearing escrow account. In order for the Respondents to receive the interest on the money, full disclosure in writing had to be presented to the client, and written consent had to be obtained and documented.

   
   

10. During the review of the Respondents' files and records relating to funds within the interest bearing sales account during the audit, the investigator was unable to locate the necessary disclosure forms for three clients whose funds were placed in the interest bearing account.

    
    

11. When the investigator informed Respondent Anglickis of the real estate company's failure to comply with the disclosure requirements on the three pending contracts, the Respondent Anglickis indulged in a verbal tirade. It appeared from the evidence that this tantrum was unsuccessfully staged in order to either dominate or intimidate the young female investigator.

    
    

12. During his harangue, the Respondent Anglickis said he would have his friend Harry Powell sign and backdate the required disclosure that was missing from Mr. Powell's file. The Respondent planned to then conveniently "find" the document misfiled in another file. Once he proposed this course of misconduct, the Respondent taunted the investigator concerning her inability to do anything about it if he chose to solve the problem in this manner.

    
    

13. On her return visit to the offices on May 3, 1989, the investigator was presented with a copy of the required disclosure form for Harry Powell. The Respondent Anglickis informed the investigator that the agreement had been misfiled and was located in another file belonging to Mr. Powell.

14. Mr. Harry Powell signed the disclosure statement during the actual sales transaction, as set forth on the form. In spite of his ongoing business relationship with Respondent Anglickis, he never backdated this disclosure, nor was he asked to do so by anyone at anytime.

    
    

15. Charles Tucker, the real estate salesman with Respondent American who handled Mr. Powell's real estate purchase, had the client sign the disclosure statement during the sales transaction. This is a required sales procedure within the company.

    
    

16. The bookkeeper located the disclosure in another closed file belonging to Mr. Powell within the real estate company. Mr. Powell purchased distressed properties within Lehigh Acres on a routine basis and had a number of closed files within the office.

    
    

17. One of the other disclosure forms for a different client was sent to the title insurance company along with other documents. It was returned to Respondent American after the audit and was placed in the proper location. This form had been timely signed by the clients and allowed the Respondents to place the funds in the interest bearing account.

    
    

18. The third and final missing disclosure form was in the possession of the real estate salesman who had it signed by the client before the escrow funds were placed in the interest bearing account. While the sales personnel are required to maintain a duplicate file, the office file in this case had not yet received the disclosure form from the salesman when the audit occurred.

    
    

19. The Respondent Anglickis did not participate in any misconduct in order to advance the scheme he had proposed to the investigator during his tantrum.

    
    

20. The Department's decision to prosecute the Respondents in this proceeding was proper due to the way in which the Respondent Anglickis' proposed scheme to circumvent the findings of the audit coincided with the later presentation of the missing disclosure statements.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

    
    

22. Section 475.25, Florida Statutes, empowers the Florida Real Estate Commission to suspend, revoke, or otherwise discipline the licenses of the Respondents if they are found guilty of any of the acts enumerated in Section 475.25, Florida Statutes.

    
    

23. A proceeding to discipline a license is penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). The Department has the burden of proof and must prove by clear and convincing evidence that the Respondents committed the violations set forth in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

24. In this case, a real estate broker and a corporation registered as a real estate broker have been charged with seven violations of Florida law. Four of the violations relate to the alleged misconduct of Respondent Anglickis while the remaining three relate to the alleged misconduct of the corporation. Count I of the Administrative Complaint charges Respondent Anglickis with having

    committed culpable negligence and breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes. Count II charges Respondent American with the same violation and involves the same transaction which gave rise to the allegations.

    
    

25. Specifically, the first two counts allege that the Respondents told the investigator through Respondent Anglickis of a scheme to circumvent the findings of the investigator during the audit by entering into a conspiracy with a client to backdate a disclosure form and to pretend the form had been misfiled during the audit.

    
    

26. The evidence adduced at hearing demonstrated the disclosure form had in fact been misfiled, and that no action had been undertaken by Respondents to commit the misconduct devised by Respondent Anglickis during his tantrum in front of the investigator. Without proof of any attempt by the Respondents to act upon the imprudent statements, the facts are resolved in the Respondents' favor. Additional witnesses presented by the Respondents clearly demonstrate the documents are genuine and were signed at the time the sales transactions occurred. Accordingly, the Respondent Anglickis is not guilty of the acts alleged in Count I, and Respondent American is not guilty of the acts alleged in Count II.

    
    

27. Count III of the complaint charges Respondent Anglickis with having placed personal funds with trust funds being held in the escrow account in violation of Rule 21V-14.08(1)(c) and Rule 21V-14.010, Florida Administrative Code, in violation of Section 475.25(1)(e), Florida Statutes. Count IV charges Respondent American with the same violation for the same activity.

    
    

28. The funds in the non-interest bearing sales escrow/trust account were real estate commissions which had not been charged against the trust funds even though the commissions were earned years prior to the audit. Until the commission charges were entered onto the ledger cards of the individual escrows and removed from the trust account, the funds were still being held in trust for the original owners. Because the funds were not personal funds comingled with trust funds by either Respondent, they are not guilty of Count III and Count IV as alleged in the complaint. The trust funds were properly maintained in the proper depository while they maintained their trust account status, contrary to the allegations set forth in these counts within the complaint.

    
    

29. Counts V and VI charge Respondent Anglickis and Respondent American with having failed to obtain permission of all interested parties before placing escrow money in an interest bearing account, in violation of Rule 21V-014, Florida Administrative Code in violation of Section 475.25(1)(e), Florida Statutes. Facts presented at hearing demonstrate that the Respondents did timely comply with the rule requirement and obtained permission before escrow money was placed in an interest bearing account. As a result, the Respondents are not guilty of the charges set forth in Counts V and VI.

    
    

30. While the allegation in Count VII which charges Respondent Anglickis with having been previously disciplined by the Florida Real Estate Commission was proved at hearing, the additional allegation that a course of conduct or practices has been established that shows the Respondent cannot safely be entrusted with money, property, transactions, and rights of investors, was not demonstrated. The Respondent Anglickis is not guilty of the alleged violations of Section 475.25(1)(o), Florida Statutes, as charged in Count VII.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent Anglickis and Respondent American be found not guilty of Counts I-VII as set forth in the Administrative Complaint, and that the charges be dismissed.

RECOMMENDED this 26th day of June, 1990, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5414

Petitioner's Proposed Findings of Fact are addressed as follows:

1. Accepted. See HO #1.

2. Accepted. See HO #2.

3. Accepted. See HO #2.

4. Accepted. See HO #2.

5. Accepted. See HO #3.

6. Accept that during the audit, the records pur- portedly revealed an overage in the escrow account. See HO #4. The bookkeeper's statements are rejected as uncorroborated hearsay.

7. Accepted. See HO #8 - #10.

8. Accepted. See HO #11 and #12.

9. Accepted. See HO #13. However, the investigator is not the ultimate trier of fact and did not have all of the evidence presented to the Hearing Officer which refuted that the proposed misconduct by Respondent Anglickis had occurred. See HO #19.

Respondent's Proposed Findings of Fact are addressed as follows:

1. Accepted. See HO #15 - #18.

2. Accepted. See HO #4 - #7.

COPIES FURNISHED:

Steven W. Johnson, Esquire DPR - Division of Real Estate

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

Robert P. Henderson, Esquire 1619 Jackson Street

Post Office Box 1906

Fort Myers, Florida 33902

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Darlene F. Keller, Executive Director DPR - Division of Real Estate

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

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE,

Petitioner,

vs. CASE NO. 0163310 0164515

DOAH NO. 89-5414

RICHARD A. ANGLICKIS and AMERICAN HERITAGE REALTY INC.

Respondents

/

FINAL ORDER

On August 21, 1990, the Florida Real Estate Commission heard this case to issue a Final Order. Hearing Officer Veronica E. Donnelly of the Division of Administrative Hearings presided over a formal hearing on May 22, 1990. On June 26, 1990, she issued a Recommended Order, a copy of which is attached hereto as Exhibit A and made a part hereof.

Petitioner filed Exceptions to the Recommended Order, stating that the Hearing Officer's Conclusions of Law pertaining to Counts I, II, III and IV of the Administrative Complaint were inconsistent with the Hearing Officer's Findings of Fact in Paragraphs 4, 5, 6 and 7. A copy of said Exceptions is attached hereto as Exhibit B and made a part hereof.

After hearing argument of counsel and upon a complete review of the record, the Commission adopts the Hearing Officer's Findings of Fact and rejects the Hearing Officer's Conclusions of Law and Recommendation. The Commission adopts the Petitioner's Exceptions as the Conclusions of Law and finds the Respondents guilty of Counts I, II, III, IV and VII, as set forth in the Administrative Complaint. Further, after a complete review of the record, the Commission cites said Exceptions as justification to increase the recommended penalty.

Accordingly, the Florida Real Estate Commission ORDERS that the Respondents pay an administrative fine of $1000 for each of Counts I, II, III, IV and VII, as set forth in the Administrative Complaint, for a total fine of $5000. The Commission further ORDERS that the license of Respondent Richard A. Anglickis and the registration of American Heritage Realty Inc. be suspended for a period of five (5) years.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s.120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 21st day of August 1990 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to Robert P. Henderson, Esq., P 0 Box 1906, Ft. Myers, FL 33902; to Hearing Officer Veronica E. Donnelly, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and to Steven Johnson, Esq., DPR, P 0 Box 1900, Orlando, FL 32802, this 31 day of 1990.

Docket for Case No: 89-005414

Orders for Case No: 89-005414