Deputy Agenoy Clerk STATE OF FLORIDA CLERK —- Evette Lawson-Prootor DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULAT] pote 8/30/2012 FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Petitioner, Vv. Case No. 2011-060357 PAUL DRAKE, Respondent. / ADMINISTRATIVE COMPLAINT The Department of Business and Professional Regulation (Petitioner) files this Administrative Complaint before the Florida Real Estate Commission against PAUL DRAKE (Respondent), and alleges: 1. Petitioner is the state agency charged with regulating the practice of real estate pursuant to Section 20.165, Florida Statutes, and Chapters 120, 455, and 475, of the Florida Statutes. 2. At all times material to this Complaint, Respondent was licensed as a real estate broker in the State of Florida, having been issued license number 3197292. Its licensure authority is now void. 3. Respondent is licensed as a real estate broker in the State of Florida, having been issued license number 3073258. 4. Respondent's address of record is 455 Bow Line Drive, Naples, Florida 34103. 5. At all times material to this Complaint, Respondent was the broker of Paul Drake LLC d/b/a Rothchilds International Realty (Drake LLC), a now defunct real estate corporation previously registered with the Department of Business and Professional Regulation. 6. On or about June 16th, 2010, Respondent accepted approximately $124,443.97 in sale proceeds from a real estate transaction on behalf of John W. Conrad (Conrad). These funds were to be held in escrow. 7. Respondent confirmed receipt of the above funds by contemporaneously dated letter and stated in that letter that “[t]hese funds will be held in a trust account in the name of Rothschild Realty, to be used towards the purchase of replacement properties.” 8. Subpoenaed bank statements reflect that the funds were credited into a general operating account of Respondent instead of an escrow account. 9. On or about June 18th, 2010, Respondent made check #1160 out to “Cash” and withdrew $120,000.00 from the operating account. On that same day, $120,000.00 was converted by Respondent into the form of a cashier’s check made payable to a Joseph A, Myers. 10. Conrad began to demand the return of the funds in or around the middle of 2011, and Respondent did not timely comply with Conrad’s demand. 11. However, on or about February 21st, 2012, Respondent returned $123,447.97 to Conrad, and a mutual release was executed acknowledging the same. 12. Subpoenaed bank statements from three bank accounts controlled by Respondent evidence that insufficient funds were maintained in the operating account, escrow account, and Respondent's personal savings account to cover the shortfall. 13. Respondent has to date failed to make the requested records and bank statement available for inspection and review upon request. 14. On or about September 27th, 2006, in the County Court in and for Collier County, Respondent pled nolo contendere to one count of driving under the influence first offense, a misdemeanor (Case No. 0603579CT). 15. Respondent failed to timely self-report the above offense. COUNT_ONE 16. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through fifteen (15) as set forth herein. 17. Section 475.25(1)(b), Florida Statutes, subjects a real estate licensee to discipline for committing fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealings 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, or if he has violated a duty imposed on him by law or by the terms of a listing contract, written, oral, express or implied, in a real estate transaction. 18. Respondent committed fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealings by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction, in one or more of the following ways: a. By directing the funds into the general operating account instead of the escrow account and misappropriating the funds for personal use; b. By misrepresenting that the funds would be held in escrow until such time as their disbursement was authorized; Cc. By engaging in dishonest dealings by trick, scheme, or device by misappropriating the funds and failing to repay them upon demand; d. By breaching the trust of Conrad by commingling the funds, misappropriating them, and failing to return them upon demand. e. By acting with culpable negligence by allowing the funds to be commingled, and allowing the funds to be dissipated and not timely returned. 19. Based on the foregoing, Respondent violated Section 475.25(1) (b), Florida Statutes, when he committed fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealings by trick, scheme, or device, culpable negligence, or breach of trust in his business transactions involving the Land Ho management account or property management escrow account, COUNT TWO 20. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through fifteen (15) as set forth herein. 21. Pursuant to Section 475.25(1) (d)1., Florida Statutes, a real estate licensee is subject to discipline, including suspension or revocation, if the licensee failed to account or deliver to any person, including a licensee under this chapter, 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. 22. Based on the foregoing, Mr. Drake violated Section 475.25(1) (d)1., Florida Statutes, when he failed to timely account for or deliver the funds. COUNT THREE 23. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through fifteen (15) as set forth herein. 24, Pursuant to Section 475.25(1)(k), Florida Statutes, a real estate broker is subject to discipline, including suspension or revocation, if the licensee failed to deposit any escrow money, fund, deposit, check, or draft in a trust or escrow account maintained by him with some bank, credit union, or savings and loan association located and doing business in this state. 25. Mr. Drake violated Section 475.25(1)(k), Florida Statutes, when he directed Mr. Conrad's sale proceeds into the operating account. COUNT FOUR 26. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through fifteen (15) as set forth herein. 27. Pursuant to Section 475.42(1) (i), Florida Statutes (2011), a real estate licensee 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. 28. Section 475.5016, Florida Statutes (2011), states that duly authorized agents and employees of the. department shall have the power to inspect and audit in a lawful manner at all reasonable hours, any broker or brokerage office licensed under this chapter, for the purpose of determining if any of the provisions of this chapter, chapter 455, or any rule promulgated under authority of either chapter is being violated. 29. Based on the foregoing, Respondent violated Section 475.42 (1) (i), Florida Statutes (2011), by obstructing or hindering the Department’s investigation by preventing the commencement of a satisfactory Section 475.5016, Florida Statutes, inspection or audit. COUNT FIVE 30. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through fifteen (15) as set forth herein. 31. Section 455.227(1)(t), Florida Statutes, states that failing to report in writing to the board or, if there is no board, to the department within 30 days after the licensee is convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction. A licensee must report a conviction, finding of guilt, plea, or adjudication entered before the effective date of this paragraph within 30 days after the effective date of this paragraph. 32. Based on the foregoing, Respondent violated Section 455.227(1) (t), by failing to timely self-report his plea of nolo contendere to driving under the influence first offense within thirty days of the effective date of the paragraph. WHEREFORE, Petitioner respectfully requests the Florida Real Estate Commission to enter an order imposing one or more of the following penalties: suspension or permanent revocation of Respondent’s license(s), restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of Respondent on probation, corrective action, assessment of costs related to the investigation and prosecution of the case, and any other relief that the Commission.deems appropriate. lea Signed this 30th day of By: PCP Date: 8/20/12 August, 2012. KEN LAWSON, Secretary Department of Business and Professional Regulation Joshua N. Kendrick Joshua N. Kendrick Florida Bar No. 56129 Department of Business and Professional Regulation Office of General Counsel Division of Real Estate 1940 N. Monroe Street Tallahassee, FL 32399 (850) 488-0062 ~ Telephone (850) 921-9186 - Facsimile PCP MEMBERS: Michael Guju/Ralph McCoig NOTICE OF RIGHTS PLEASE BE ADVISED that mediation under Section 120.573, Florida Statutes, is not available for administrative disputes involving this type of agency action. PLEASE BE FURTHER ADVISED that Respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses, and to have subpoenas and subpoenas duces tecum issued on his or her behalf if a hearing is requested. Rule 28-106,.111, Florida Administrative Code, provides in part that if Respondent fails to request a hearing within twenty-one (21) days of receipt of an agency pleading, Respondent waives the right to request a hearing on the facts alleged. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 455.227(3) (a), Florida Statutes, the Board, or the Department when there is no Board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time, against the Respondent in addition to any other discipline imposed. 10

Docket for Case No: 13-001997PL