STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )
DIVISION OF REAL ESTATE, )
)
Petitioner, )
)
vs. )
) SHARON WILF AND SHARON L. WILF ) PARADISE PROPERTIES, INC., )
)
Respondents. )
Case No. 03-3312
)
RECOMMENDED ORDER
Notice was provided, and a formal hearing was held on October 28, 2003, in Destin, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: James Harwood, Esquire
Department of Business and Professional Regulation
Division of Real Estate
Hurston Building, North Tower, Suite N802
400 West Robinson Street Orlando, Florida 32801-1900
For Respondents: Sharon L. Wilf, pro se
9535 Highway 98, East
Destin, Florida 32550
STATEMENT OF THE ISSUE
Whether Respondents violated provisions of Part 1 of Chapter 475, Florida Statutes, and Florida Administrative Code, Subpart 61J2.
PRELIMINARY STATEMENT
An eighteen-count Administrative Complaint was filed in this case by Petitioner Department of Business and Professional Regulation (Department), on November 20, 2002. Respondent Sharon L. Wilf (Ms. Wilf) disputed the facts alleged in the Administrative Complaint on her own behalf and on behalf of Respondent Sharon L. Wilf Paradise Properties, Inc. (Paradise), and requested a hearing on an Election of Rights form that was sworn to by Ms. Wilf on January 17, 2003.
The matter was filed with the Division of Administrative Hearings (Division) on March 24, 2003, and assigned Case No. 03-0986. The case was set for hearing on May 14, 2003. In a letter dated May 6, 2003, Ms. Wilf requested a continuance. A
continuance was granted which directed the parties to notify the then assigned judge, Administrative Law Judge Ruff, by May 21, 2003, of the status of the case. The case was then set for hearing on August 20, 2003. Thereafter, on August 5, 2003, the Department, asserting that a settlement had been attained, requested that the Division relinquish jurisdiction. This was done in an Order Closing File dated August 7, 2003.
The case was resurrected with a new case number when the Administrative Complaint was again filed with the Division on September 15, 2003. The case was set for hearing on October 28, 2003, in Destin, Florida. Ms. Wilf thereafter requested a continuance and on October 23, 2003, the request was denied in an Order Denying Motion for Continuance. On October 24, 2003, Ms. Wilf again attempted to obtain a continuance. A continuance was not permitted and the hearing commenced as scheduled.
The Department offered Exhibits 1 through 20 and called one witness, Ms. Diana L. Woods, an Investigative Specialist II with the Division of Real Estate. Ms. Wilf testified on her own behalf, and on behalf of Paradise, and offered no exhibits.
However, Ms. Wilf requested that she be allowed to file exhibits subsequent to the hearing. Petitioner agreed that she could file exhibits. Therefore, late filing was allowed, and Ms. Wilf did file relevant documents. These included a telephone bill for part of March and April 2002, indicating that Ms. Wilf was not in the Destin area on April 4, 2002, and a document representing a bank debit in the amount of $10,000 accomplished, arguably by "Tracy," and dated April 4, 2002. She also filed an Internal Revenue Service 1099-MISC indicating that the funds she received from Brockstedt, mentioned herein, represented rental income. These filings were considered by the Administrative Law Judge.
A Transcript was filed on December 1, 2003. The Department requested additional time to file a proposed recommended order. In an Order on Motion for Additional Time to File Petitioner's Proposed Recommended Order, the parties time for filing was enlarged to December 18, 2003. Both parties timely filed Proposed Recommended Orders that were considered in the preparation of this Recommended Order.
References to statutes are to Florida Statutes (2002) unless otherwise noted. References to rules are to rules in the Florida Administrative Code in effect on the date of this order.
FINDINGS OF FACT
The Florida Department of Business and Professional Regulation, Division of Real Estate, and the Florida Real Estate Commission, regulate the sale of real estate in the State of Florida. The Department issues licenses to applicants certified to be qualified by the Florida Real Estate Commission.
Ms. Wilf is currently licensed with the Department as a qualifying broker with Sharon L. Wilf Paradise Properties, Inc. She holds Broker License No. 0547485. Sharon L. Wilf Paradise Properties, Inc., is a licensed brokerage corporation located at 9535 Highway 98 East, Destin, Florida 32550. At all times relevant Ms. Wilf had substantial if not exclusive control over Sharon L. Wilf Paradise Properties, Inc.
Pursuant to a complaint on September 7, 2000, the Department detailed Diana Woods to conduct an office inspection of Ms. Wilf's real estate practice. Ms. Woods contacted
Ms. Wilf telephonically in December of 2000.
Ms. Wilf said that she would be available in February 22, 2001, for an audit and inspection of Respondents'
records. At the appointed time, however, Ms. Wilf was in Texas. On April 5, 2001, Ms. Wilf told Ms. Woods she was still in Texas. A visit was then scheduled for April 12, 2001, but at the appointed time Ms. Wilf was not there. Ms. Woods tried for April 18, 2001, but Ms. Wilf said that she was really busy and that her books were off-site and in the custody of her bookkeeper on that date. Ms. Wilf also asserted that her mother had suffered a stroke and asked for another date.
Ms. Wilf agreed that Ms. Woods could inspect on May 8, 2001. On Sunday, May 6, 2001, Ms. Wilf called Ms. Woods to tell her that she was leaving for Texas and Louisiana on May 7, 2001. Ms. Woods went to Ms. Wilf's office on May 8, 2001, and no one was there.
In a letter dated May 11, 2001, Ms. Woods gave Ms. Wilf three dates to be available for an inspection and demanded that she choose one. Ms. Wilf agreed to May 24, 2001. Ms. Wilf was present on that date when Ms. Woods arrived. However,
Ms. Wilf's books and records were disorganized and incomplete.
Ms. Woods returned on May 29, 2001, and examined Ms. Wilf's books and records.
As a result of the inspection it was determined that as of May 29, 2001, Ms. Wilf's trust account showed a liability of
$57,000 but there was $58,164.63 present in the account. This meant that she had an overage in the account of $1,164.63.
Ms. Wilf could not provide an explanation as to why the account was out of balance.
A review of Ms. Wilf's Monthly Reconciliation Statement Real Estate Trust Account (Reconciliation Statement) for the period February 1, 2000, to February 29, 2000, indicated that her trust account was short $14,096.40. Ms. Wilf explained this by saying she had mistakenly written two commission checks on that account. No corrective action was indicated.
The Reconciliation Statement for the period April 1, 2000, to April 28, 2000, revealed a shortage of $26,381.20, in her trust account. There was no explanation for the shortage provided on the Reconciliation Statement. No corrective action was indicated.
The Reconciliation Statement for the period April 29, 2000, to May 31, 2000, revealed a shortage of $137.28. There was no explanation for the shortage provided on the Reconciliation Statement. No corrective action was indicated.
The Reconciliation Statement for the period July 1, 2000, to July 31, 2000, revealed a shortage of $8,492.58. There was no explanation for the shortage provided on the Reconciliation Statement. No corrective action was indicated.
The Reconciliation Statement for the period
September 1, 2000, to September 30, 2000, revealed a shortage of
$5,443.05. There was no explanation for the shortage provided on the Reconciliation Statement. No corrective action was indicated.
The Reconciliation Statement for the period October 1, 2000, to October 31, 2000, revealed a shortage of $2,407.71. There was no explanation for the shortage provided on the Reconciliation Statement. No corrective action was indicated.
The Reconciliation Statement for the period November 1, 2000, to November 30, 2000, revealed a shortage of
$1,828.96. There was no explanation for the shortage provided on the Reconciliation Statement. No corrective action was indicated.
The Reconciliation Statement for the period March 1, 2001, to March 31, 2001, revealed an overage of $7,827.74. There was no explanation for the overage provided on the Reconciliation Statement. No corrective action was indicated.
The Reconciliation Statement for the period March 1, 2000, to March 31, 2000, reflected a total shortage of
$19,150.16, on the second page. This figure had a line drawn through it. On the third page, the document indicates an overage in an amount that cannot be determined due to handwriting that is indecipherable. It may be $1,847, or $1,849 and some cents. There was no explanation for the figures provided on the Reconciliation Statement. No corrective action was indicated.
The Reconciliation Statement for the period June 1, 2000, to June 30, 2000, revealed an overage of $19,712.72. There was no explanation for the overage provided on the Reconciliation Statement. No corrective action was indicated.
The Reconciliation Statement for the period December 31, 2000, to January 31, 2001, revealed an overage of
$3,452.13. The reason for the overage was, "? overpaid commission." No corrective action was indicated.
The Reconciliation Statement for the period February 1, 2001, to February 28, 2001, revealed an overage of
$9,556.31. There was no explanation for the overage provided on the Reconciliation Statement. No corrective action was indicated.
The Reconciliation Statement for the period May 1, 2001, to May 31, 2001, revealed an overage of $1,161.62. There was no explanation for the overage provided on the Reconciliation Statement. No corrective action was indicated.
The Reconciliation Statement for the period June 1, 2001, to June 30, 2001, revealed an overage of $1,158.63. On the explanation page Ms. Wilf cited as a reason, "Overage from May 25, 2001 audit," and for corrective action taken, stated, "Plan to make correction July."
The Reconciliation Statement for the period January 1, 2002, to January 31, 2002, revealed a shortage of $1,551.88. On the explanation page Ms. Wilf cited as a reason, "Force debit from Nov. 19-$6541.63-11-45 acct maint," and for corrective action taken, stated, "The force debit should have come from GOA acct. maint shouldn't be deducted bank to correct."
The Reconciliation Statement for the period March 1, 2002, to March 29, 2002, revealed a shortage of $2,544.43. On the explanation page Ms. Wilf cited as a reason, "Debit from bank still not done," and for corrective action taken, stated, "Bank to correc-had Tracy call. The $10,000 from Embry-issued stop payment-see bank statement."
The Reconciliation Statement for the period March 30, 2002, to April 30, 2002, revealed a shortage of $4,331.43. On the explanation page Ms. Wilf cited as a reason, "Same force debit-unauthorized debit of 10,000 on 4/4/02." No corrective action was indicated.
The Reconciliation Statement for the period May 1, 2002, to May 31, 2002, revealed a shortage of $1,553.43. The
reason given for the shortage was, "same." No corrective action was indicated.
The Reconciliation Statement for the period June 1, 2002, to June 30, 2002, revealed a shortage of $1,555.43. The reason given for the shortage was, "Same. Should not have $2.00 fee." No corrective action was indicated.
The Reconciliation Statement for the period June 29, 2002, to July 31, 2002, revealed a shortage of $1,553.43. The reason given for the shortage was, "Same."
A Final Default Judgment in Favor of Plaintiff Anchors, Foster, McInnis & Keeff, P.A., and Against Sharon L. Wilf, Paradise Properties, Inc., in the amount of $12,951.33 was filed with the Clerk of Court of Okaloosa County on
September 21, 2001. On November 19, 2001, a Writ of Garnishment was entered by the clerk for the identical amount, indicating that the judgment was unsatisfied at that time. Compass Bank debit memos indicate that some of the debt, in the amounts of
$25, $75, and $6,591.63, on November 19, 2001, was extracted from Ms. Wilf's account pursuant to the garnishment.
In a document entitled "vacant land contract," the sellers listed on the contract, Morris Lou Sobh and Georgia Sobh, sold property to Montana Land Company. James E. Clausel was the person who was authorized to sign for Montana Land Company. The signatures of the two sellers were cut from
another document and pasted onto the "vacant land contract." Mr. Clausel was unaware that the signatures were not actual signatures.
Ms. Woods contacted the Sobhs' on November 2, 2002, and they related to her that Ms. Wilf was not authorized to supply their signatures. Ms. Woods' testimony is hearsay which is insufficient to prove that the signatures supplied were not authorized. Moreover, Ms. Wilf stated under oath that she talked to the Sobhs' at or about the time the signatures were supplied, and she stated that they authorized her to supply the signatures. The evidence presented by the Department is insufficient to overcome Ms. Wilf's first-hand testimony.
The Department provided Ms. Wilf's check no. 2459, in the amount of $17,400, payable to Lutz Brockstadt, and asserted that this represented the payment of a commission to a person not having a real estate license. However, Ms. Wilf testified that this represented rental revenue. Moreover, an Internal Revenue Service 1099-MISC indicates that the funds represented rental income. The evidence presented by the Department fails to meet the required burden of proof by clear and convincing evidence. Accordingly, it is not found that Ms. Wilf paid a commission to a person not holding a real estate license.
The Department alleged that Ms. Wilf transferred
$10,000 from her escrow account to her operating account on
April 4, 2002. The evidence tending to prove this included a bank document dated April 4, 2002, reflecting the charge. The word "Tracy" is on the document, which indicates that it was accomplished by Tracy, whose full name is Tracy Tubb, and who was Ms. Wilf's bookkeeper. Whether or not Ms. Wilf authorized the act is unknown, although telephone records indicate long distance telephone calls were made to Ft. Walton on April 3 and 4, 2002, by Ms. Wilf. Ms. Tubb told Ms. Woods that she effected the transfer on Ms. Wilf's instructions. The evidence, on the whole, is insufficient to demonstrate that $10,000 was actually transferred by or at the direction of Ms. Wilf.
CONCLUSIONS OF LAW
The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, Inc.,
396 So. 2d 778 (Fla. 1st DCA 1981). Therefore, the Department has the burden of proof in this proceeding. The standard to be met by the Department in this case is proof by clear and convincing evidence. Being penal in nature, Section 475.25, “must be construed strictly, in favor of the one against whom the penalty would be imposed.” See Munch v. Department of Professional Regulation, Div. of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992). This is true also of Section 475.42. See Department of Banking and Finance v. Osborne Stern and
Company, Inc., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Section 475.25(1), provides as follows:
(1) The commission may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, registrant, permittee, or applicant:
* * *
(b) Has 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 her or 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 committed an overt act in furtherance of such intent, design, or scheme. It is 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.
* * *
(e) Has violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.
* * *
(k) Has failed, if a broker, to immediately place, upon receipt, any money, fund, deposit, check, or draft entrusted to her or him by any person dealing with her or him as a broker in escrow with a title company, banking institution, credit union, or savings and loan association located and doing business in this state, or to deposit such funds in a trust or escrow account maintained by her or him with some bank, credit union, or savings and loan association located and doing business in this state, wherein the funds shall be kept until disbursement thereof is properly authorized; or has failed, if a sales associate, to immediately place with her or his registered employer any money, fund, deposit, check, or draft entrusted to her or him by any person dealing with her or him as agent of the registered employer. The commission shall establish rules to provide for records to be maintained by the broker and the manner in which such deposits shall be made. A broker may place and maintain up to $5,000 of personal or brokerage funds in the broker's property management escrow account and up to $1,000 of personal or brokerage funds in the broker's sales escrow account. A broker shall be provided a reasonable amount of time to correct escrow errors if there is no shortage of funds and such errors pose no significant threat to economically harm the public. It is the intent of the Legislature that, in the event
of legal proceedings concerning a broker's escrow account, the disbursement of escrowed funds not be delayed due to any dispute over the personal or brokerage funds that may be present in the escrow account.
* * *
Section 475.42(1)(i), provides as follows:
* * *
(e) A person may not violate any lawful order or rule of the commission, which is binding upon her or him.
* * *
(i) A person may not obstruct or hinder in any manner the enforcement of this chapter or the performance of any lawful duty by any person acting under the authority of this chapter or interfere with, intimidate, or offer any bribe to any member of the commission or any of its employees or any person who is, or is expected to be, a witness in any investigation or proceeding relating to a violation of this chapter.
* * *
Rule 61J2-14.012 provides as follows.
61J2-14.012. Broker's Records.
A broker who receives a deposit as previously defined shall preserve and make available to the BPR, or its authorized representative, all deposit slips and statements of account rendered by the depository in which said deposit is placed, together with all agreements between the parties to the transaction. In addition, the broker shall keep an accurate account of
each deposit transaction and each separate bank account wherein such funds have been deposited. All such books and accounts shall be subject to inspection by the BPR or its authorized representatives at all reasonable times during regular business hours.
Once monthly, a broker shall cause to be made a written statement comparing the broker's total liability with the reconciled bank balance(s) of all trust accounts. The broker's trust liability is defined as the sum total of all deposits received, pending and being held by the broker at any point in time. The minimum information to be included in the monthly statement- reconciliation shall be the date the reconciliation was undertaken, the date used to reconcile the balances, the name of the bank(s), the name(s) of the account(s), the account number(s), the account balance(s) and date(s), deposits in transit, outstanding checks identified by date and check number, an itemized list of the broker's trust liability, and any other items necessary to reconcile the bank account balance(s) with the balance per the broker's checkbook(s) and other trust account books and records disclosing the date of receipt and the source of the funds. The broker shall review, sign and date the monthly statement-reconciliation.
Whenever the trust liability and the bank balances do not agree, the reconciliation shall contain a description or explanation for the difference(s) and any corrective action taken in reference to shortages or overages of funds in the account(s). Whenever a trust bank account record reflects a service charge or fee for a non-sufficient check being returned or whenever an account has a negative balance, the reconciliation shall disclose the cause(s) of the returned check or negative balance and the corrective action taken.
Ms. Wilf failed to make her books and accounts available to the Department by engaging in a policy of dissembling and delay for a period of about six months and thus violated Section 475.42(1)(i) and Rule 61J2-14.012(1).
Ms. Wilf's chaotic record-keeping, discovered in the course of Ms. Woods' inspection, provided the motive for her attempts to avoid the inspection. Count I was proven.
Paradise, through its agent Ms. Wilf, also violated Section 475.42(1)(i) and Rule 61J2-14.012(1), as alleged in Count II.
Count III of the Administrative Complaint alleged that Ms. Wilf was guilty of fraud, culpable negligence or breach of trust in any business transaction as condemned by Section 475.25(1)(b). As recited in the Findings of Fact, she failed to properly complete her Monthly Reconciliation Statement Real Estate Trust Account form on 15 occasions and on 21 occasions ended the reconciliation period with shortages or overages.
In Munch v. Department of Professional Regulation,
Div. of Real Estate, 592 So. 2d 1136, (Fla. 1st DCA 1992), the court made the following observations about the first clause of Section 475.25(1)(b), Florida Statutes, which contains the terms "culpable negligence" and "breach of trust":
It is clear that Section 475.25(1)(b) is penal in nature. As such, it must be construed strictly, in favor of the one
against whom the penalty would be imposed.
. . . Reading the first clause of Section 475.25(1)(b) . . . and applying to the words used their usual and natural meaning, it is apparent that it is contemplated that an intentional act be proved before a violation may be found. See Rivard v. McCoy, 212 So. 2d 672 (Fla. 1st DCA), cert. denied, 219 So. 2d 703 (Fla. 1968). (Emphasis in the original).
Ms. Wilf's cavalier attitude toward her responsibilities with regard to completion of the Monthly Reconciliation Statement Real Estate Trust Account was unacceptable, but proof that her conduct rose to the level of fraud, culpable negligence, or breach of trust is absent. Accordingly, Count III is not proven.
As indicated in Findings of Fact 7-13, 15-20, and 25 and 26, Ms. Wilf on 16 occasions violated Rule 61J2-14.012(2) and (3), by failing to properly report overages and shortages, explain their occurrence, or recite corrective action. Accordingly, 16 of the allegations recited in Count IV, are proven.
Count V alleged that Ms. Wilf is deposited or intermingled personal funds, with funds being held in escrow or trust in violation of Rule 61J-14.008(2).
Rule 61J-14.008 provides as follows": 61J2-14.008. Definitions.
(1)(a) A "deposit" is a sum of money, or its equivalent, delivered to a real estate licensee, as earnest money, or a payment, or a part payment, in connection with any real estate transaction named or described in s. 475.01(1)(a), Florida Statutes, or for the purpose of obtaining satisfaction, release, or assignment of mortgages, or quit claim or other deeds deemed necessary or desirable in acquiring or perfecting the title to real estate, or assembling interest therein, or such sum delivered in escrow, trust or on condition, in connection with any transaction conducted, or being conducted, by such licensee within the scope of Chapter 475, Florida Statutes.
A deposit, as so defined, shall extend to and include not only cash, or currency, but any medium of exchange, or any securities to be converted into money, delivered for any of the purposes aforesaid, to be held or converted into cash or bank credits. A broker shall not be responsible for the payment of any check or draft, unless the broker, through culpable negligence, fails to deposit the same in the regular course of business, and the check or draft is not paid due to such culpable negligence, and damage results to some party entitled to complain of said culpable negligence.
"Trust" or "escrow" account means an account in a bank or trust company, title company having trust powers, credit union, or a savings and loan association within the State of Florida. Only funds described in this rule shall be deposited in trust or escrow accounts. No personal funds of any licensee shall be deposited or intermingled with any funds being held in escrow, trust or on condition except as provided in Rule 61J2-14.010(2), Florida Administrative Code.
"Immediately" means the placement of a deposit in an escrow account no later than
the end of the third business day following receipt of the item to be deposited.
Saturdays, Sundays and legal holidays shall not be considered as business days.
It should be noted that Rule 61J2-14.008(2), as alleged in the count, cannot be found in the Westlaw database. The allegation in Count V apparently refers to the Monthly Reconciliation Statement Real Estate Trust Account for the period February 1, 2000, through February 29, 2000. Rule 61J2- 14.008(1)(c), in pertinent part states, "No personal funds of any licensee shall be deposited or intermingled with any funds being held in escrow, trust, or on condition . . ."
When Ms. Wilf experienced a shortage of $14,096.40, during the reporting period February 1, 2000, to February 29, 2000, she explained to the Department's investigator that she had mistakenly written two commission checks totaling $14,510 in order to pay real estate commissions in that amount. This does not demonstrate commingling funds as described and prohibited by Rule 61J2-14.008. Commingling implies that the funds came from personal or operating funds in addition to funds given in escrow. The proof did not demonstrate that this occurred. Accordingly, Count V is not proven.
The allegation in Count VI, addresses a violation of Section 475.25(1)(b), in the case of Paradise. For the reasons
discussed above it is not proven that Paradise Properties, Inc. violated Section 475.25(1)(b).
Count VII alleges that Paradise, deposited or intermingled personal funds with funds being held in escrow or trust. As noted above this was not proven in the case of
Ms. Wilf, and is not, therefore, proven in the case of Sharon L. Wilf Paradise Properties, Inc.
Count VIII alleges that Ms. Wilf was guilty of fraud, misrepresentation, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in any business transaction in violation of Section 475.25(1)(b). The facts alleged to support this Count include the $10,000 debit and supplying a signature on a contract. The allegations of this count are not proven for reasons discussed above.
Count IX alleged that Ms. Wilf failed to maintain funds in the real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized in violation of Section 475.25(1)(k).
Section 475.25(1)(k) clearly requires a broker to immediately place money entrusted to her in escrow with a financial institution or the like, ". . . wherein the funds shall be kept until disbursement thereof is properly authorized." Ms. Wilf, insofar as the record reveals, properly deposited funds received by her. It was proved by clear and
convincing evidence that Ms. Wilf inadvertently paid two commissions from her escrow account and permitted forced debits in a total amount of $6,691.63, because of her delay or refusal to pay a judgment against her. These were not authorized disbursements. Accordingly, Count IX is proven.
Count X addresses the same matters discussed in Count II and is merged with it.
Count XI alleged that Ms. Wilf failed to comply with the duties inherent in a brokerage relationship in violation of Section 475.278. This Count refers to Ms. Wilf's failure to reconcile escrow statements, intermingling funds, failing to replace garnished funds, and transferring funds from an escrow account to an operating account. Only failing to reconcile escrow statements was proven to the certainty required in this type of case. Section 475.278(1) addresses "authorized brokerage relationships," and Section 475.278(2), addresses "transaction broker relationship."
Section 475.278(1) does not provide required behaviors, the deviation from which might be actionable. Section 475.278(2), provides required behaviors, but only in the case of transaction broker relationships. It is not clear from the evidence in this case which if any relationship was that of transaction broker. Accordingly, Count XI is not proven.
Count XII alleged that Paradise, failed to preserve and make available to the Department, all books, records, and supporting documents and failed to keep an accurate account of all trust fund transactions in violation of Rule 61J2-14.012(1) and Section 475.5015.
Section 475.5015 provides as follows:
Each broker shall keep and make available to the department such books, accounts, and records as will enable the department to determine whether such broker is in compliance with the provisions of this chapter. Each broker shall preserve at least one legible copy of all books, accounts, and records pertaining to her or his real estate brokerage business for at least 5 years from the date of receipt of any money, fund, deposit, check, or draft entrusted to the broker or, in the event no funds are entrusted to the broker, for at least 5 years from the date of execution by any party of any listing agreement, offer to purchase, rental property management agreement, rental or lease agreement, or any other written or verbal agreement which engages the services of the broker. If any brokerage record has been the subject of or has served as evidence for litigation, relevant books, accounts, and records must be retained for at least 2 years after the conclusion of the civil action or the conclusion of any appellate proceeding, whichever is later, but in no case less than a total of 5 years as set above. Disclosure documents required under ss. 475.2755 and
475.278 shall be retained by the real estate licensee in all transactions that result in a written contract to purchase and sell real property.
Rule 61J2-14.012(1), provides as follows: 61J2-14.012. Broker's Records.
A broker who receives a deposit as previously defined shall preserve and make available to the BPR, or its authorized representative, all deposit slips and statements of account rendered by the depository in which said deposit is placed, together with all agreements between the parties to the transaction. In addition, the broker shall keep an accurate account of each deposit transaction and each separate bank account wherein such funds have been deposited. All such books and accounts shall be subject to inspection by the BPR or its authorized representatives at all reasonable times during regular business hours.
Ms. Wilf failed to keep and make available to the department such books, accounts, and records that were necessary to enable the department to determine whether she was in compliance with the provisions Chapter 475. Accordingly, Count XII is proven.
Count XIII alleged that Ms. Wilf shared a commission with a person not properly licensed as a broker. In the Department's Proposed Recommended Order, Count XIII was withdrawn.
Count XIV alleged that Paradise, was guilty of fraud, misrepresentation, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in any business transaction in violation of Section 475.25(1)(b). The
allegations of this count are not proven for reasons discussed above.
Count XV alleged that Paradise failed to maintain funds in the real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized in violation of Section 475.25(1)(k). Because of the actions of its agent Ms. Wilf, Paradise, is guilty of this allegation.
Count XVI alleged that Paradise failed to preserve and make available to the Department, all books, records, and supporting documents and failed to keep an accurate account of all trust fund transactions in violation of Rule 61J2-14.012(1) and Section 475.5015. Through its agent, Ms. Wilf, Paradise did fail to make available to the Department, all books, records, and supporting documents and did failed to keep an accurate account of all trust fund transactions in violation of Rule 61J2-14.012(1) and Section 475.5015. Accordingly, Count XVI is proven.
Count XVII alleged that Paradise failed to comply with the duties of the brokerage relationship of Section 475.278. For the reasons stated above, and for the same reason this allegation has not been proven in the case of Ms. Wilf, it is not proven against Paradise.
Count XVIII alleged that Ms. Wilf shared a commission with a person not properly licensed as a broker. In the Department's Proposed Recommended Order, Count XVIII was withdrawn.
Summary
Counts I (Ms. Wilf), II(Paradise), IV (Ms. Wilf), IX (Ms. Wilf), XII (Paradise), XV (Paradise), and XVI (Paradise) are proven by clear and convincing evidence. Counts III, V, VI, VII, VIII, XI, XIII, XIV, XVII, and XVIII are not proven.
Rule 61J2-24.001(3) sets forth the disciplinary guidelines for violations of Chapters 455 or 475. The penalty for a violation of Section 475.42(1)(i), as set forth in Counts I and II, is revocation. The penalty for violating Rule 61J2- 14.012(2) and (3), made a violation by Section 475.25(1)(e), and set forth as Counts IV and XVI, ranges from an eight-year suspension to revocation and an administrative fine of $1,000. The penalty for violating Section 475.25(1)(k), as set forth in Count IX and XV, is not provided by Rule 61J2-24.001, for the facts found in this case. The penalty for violating Rule 61J2- 14.012(1), made a violation by Section 475.25(1)(e), and set forth as Count XII, ranges from an eight year suspension to revocation and an administrative fine of $1,000.
Rule 61J2-24.001(4)(b) sets forth aggravating or mitigating circumstances that should be considered in awarding a
penalty. These include the severity of the offense, the degree of harm, the number of counts proven in the Administrative Complaint, and the number of times the offenses have been previously committed by the licensee. Also to be considered is the disciplinary status of the licensee at the time the offense was committed, the degree of hardship the licensee might suffer from a penalty, and whether or not a letter of guidance had been issued to the licensee. These factors were considered in recommending a penalty.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the licenses of Respondents Sharon L. Wilf and Sharon L. Wilf Paradise Properties, Inc. be revoked and that a $3,000 civil penalty be assessed jointly and severally against Respondents.
DONE AND ENTERED this 8th day of January, 2004, in Tallahassee, Leon County, Florida.
S
HARRY L. HOOPER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2004.
COPIES FURNISHED:
James P. Harwood, Esquire Department of Business and
Professional Regulation Division of Real Estate Hurston Building, North Tower, Suite N802
400 West Robinson Street Orlando, Florida 32801
Sharon L. Wilf
9535 Highway 98, East
Destin, Florida 32550
Jason Steele, Director Division of Real Estate Department of Business and
Professional Regulation Hurston Building, North Tower Suite N802
400 West Robinson Street Orlando, Florida 32801
Nancy Campiglia, General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-2202
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 16, 2004 | Agency Final Order | |
| Jan. 08, 2004 | Recommended Order | Respondents refused to cooperate with a Real Estate Commission investigator and failed to properly account for escrow funds. Recommend revocation of license is appropriate. |
