STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT W. LOFTUS, JR., FLORIDA ) STATE REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1119

) PROGRESS DOCKET NO. 2668

LEON ZWICK and ELIAS ZWICK, ) Dade County

)

Respondent. )

)

RECOMMENDED ORDER

After due notice a public hearing was held before Delphene C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings, on October 2, 1975, commencing at 11:02 a.m. at the offices of the Florida Real Estate Commission, 921 Seybold Building, 36 N.E. First Street, Miami, Florida.

APPEARANCES

For Petitioner: Richard J. R. Parkinson, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Martin Lemlich, Esquire

5841 Biscayne Boulevard Miami, Florida

ISSUES

1. Whether the Defendants, Leon Zwick and Elias Zwick together with a broker, Roberto E. Mitrani, received $10,000 earnest money deposit for a sale of Lot 12, Block 120, Lenox Manor Subdivision, Plat Book 7, page 15, Dade County, Florida, and thereafter released $9,000 of said deposit to the seller, retaining

   $1,000 for personal use in violation of Chapter 475, Florida Statutes; whether said money was disbursed without proper authority; whether the co-broker, Robert

   E. Mitrani, was not notified of the return of $9,000 deposit money or the retention of $1,000 of the deposit money.

   
   

2. Whether Defendants failed to maintain in an escrow account all moneys prior to the culmination of the subject transaction.

   
   

3. Whether the licenses of one or both of the Defendants should be revoked.

FINDINGS OF FACT

1. The Defendant, Leon Zwick, and the Defendant, Elias Zwick, are registered real estate broker and real estate salesman, respectively.

   
   

2. The Defendants in cooperation with a broker, Roberto E. Mitrani, negotiated a contract dated September 1, 1972, as broker and salesman, respectively, for the sale of Lot 12, Block 120, Lenox Manor Subdivision, Plat Book 7, page 15, as recorded in the public records of Dade County, Florida, known as Jeffrey Apartments to Marco T. Gonzalez or assigns, as the purchaser, by E. M. Bornfriend, Sara Bornfriend and Pauline Bornfriend, as sellers.

   
   

3. The Defendants received total earnest money deposit in the amount of

   $10,000, but the contract time expired and the sale was not consummated.

   
   

4. On or about October 18, 1972, the Defendant, Leon Zwick, did pay over and release $9,000 of the $10,000 earnest money deposit to Mariana De Gonzalez, as attorney in fact for Marco T. Gonzalez, and both Leon Zwick and Elias Zwick executed a mutual release for the entire $10,000 earnest money deposit.

   
   

5. The release stated and the Defendants admitted that $1,000 was retained by the Defendants for their personal use, said release being executed without the knowledge or consent of the sellers. Mariana De Gonzalez, was represented by an attorney, Melvin J. Richard, and the sellers were represented by an attorney, Howard N. Galbut.

   
   

6. A letter dated October 12, 1972, complaining of the transaction with the Defendants, written by Melvin J. Richard to the Florida Real Estate Commission, was delivered to the Real Estate Commission but had not been answered and a letter of October 19, 1972 was then written in which it was stated that the matter had been settled and the complaint was withdrawn. The Plaintiffs filed an Information against the Defendants on April 25, 1975.

   
   

7. The Hearing Officer further finds;

   
   

   1. That the Defendant broker Zwick and the Defendant salesman Zwick violated the terms of the subject contract by failing to return the money on deposit at the expiration of the time designated in the contract;

      
      

   2. That the retained $1,000 was used to pay the attorney for the Defendants, Martin Limlich, upon whose advice they relied when they retained

      $1,000 of the $10,000 deposit they should have returned forthwith in full to the purchasers;

      
      

   3. That the Defendants are guilty of failure to maintain a proper escrow account by not keeping the $10,000 deposit in escrow as required by Chapter 475, Florida Statutes;

      
      

   4. That the testimony of the co-broker, Roberto E. Mitrani, is inconclusive; and

      
      

   5. That Defendant Leon Zwick has previously been found guilty by the Florida Real Estate Commission of conduct warranting revocation.

      CONCLUSIONS OF LAW

      
      

8. Chapter 475, Florida Statutes, requires the Defendants to maintain deposit moneys in a separate account pending closing of real estate transactions. The Defendants wrongfully deducted $1,000 of a $10,000 deposit before returning the deposit to the purchasers. The Defendants failed to promptly return the deposit as requested by the clients and required by Florida Statutes and rules of the Florida Real Estate Commission.

   
   

9. The wrongful acts of the Defendants by retaining a portion of the moneys entrusted to them and which should have been maintained in a separate account and returned fully when the transaction failed to be consummated was due largely in reliance upon the knowledge and good faith of their attorney, Martin Limlich, who either through ignorance or avarice advised them to retain a portion of the deposit money.

RECOMMENDED ORDER

Suspend the licenses of Defendant Leon Zwick and the Defendant Elias Zwick for a period of not more than thirty (30) days.

DONE and ORDERED this 24th day of November, 1975.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Martin Limlich, Esquire 5841 Biscayne Boulevard Miami, Florida

Docket for Case No: 75-001119

Orders for Case No: 75-001119