STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) BY FLOYD M. STEVENS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-243

)

RAYMOND S. HURLEY AND )

VISTA REALTY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at the Municipal Court Building, 100 Northwest Second Avenue, Boca Raton, Florida, on the 15th day of September, 1976, commencing at 12:00 p.m. A continuation of the hearing was conducted at the Atlantic National Bank, 302 Datura Street, Board Room, Second Floor, West Palm Beach Florida on the 4th of November, 1976, commencing at 9:30

a.m. The hearing was concluded at the City Hall of Boca Raton, Conference Room,

201 West Palmetto Park Road, Boca Raton, Florida, on the 27th day of January, 1977, commencing at 2:30 pm.

APPEARANCES

For Petitioner: Louis B. Guttmann, III, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Ronald Sales, Esquire

Sales & Christiansen

247 Royal Palm Way

Palm Beach, Florida 33480

ISSUES

1. Whether or not the Respondent, Vista Realty, Inc., by and through its president, an active firm member, Respondent, Raymond S. Hurley, failed to maintain funds in its escrow or trust bank account until disbursement thereof is properly authorized; by receiving earnest money deposits from Edward Sheredy and Sharon Sheredy, his wife, and a separate earnest money deposit of Joseph Federico, both of which deposits were placed in the escrow bank account of Respondent, Vista Realty, Inc., and were allegedly unavailable for withdrawal from the escrow account at the time of any alleged real estate transaction closing in the two transactions, set for November 27, 1974, and by reason of the foregoing the Respondent, Vista Realty Inc., by and through its president, an active firm member, Respondent, Raymond S. Hurley, failed to maintain funds in

   an escrow or trust bank account until disbursement thereof was properly authorized, in violation of Subsection 475.25(1)(i), F.S.

   
   

2. Whether or not Arthur Sinett and Sylvia Sinett, his wife, as purchasers, and Vista Community Builders, Inc. by and through its president, Raymond S. Hurley, as seller, and Vista Realty, Inc., by and through its president an active firm member, Raymond S. Hurley, as real estate broker, entered into a contract to purchase and sell certain real property in Palm Beach County, Florida which called for deposits by the buyer to be held in escrow account until the sale is closed; and whether or not the $50,000.00 sum placed with Vista Community Builders, Inc. was an earnest money deposit made pursuant to the terms of the contract; and whether or not Vista Community Builders, Inc. by and through its president, Respondent, Raymond S. Hurley, failed to deposit and maintain the said funds in an escrow account until the sale closed; thereby showing the Respondent, Raymond S. Hurley, to be guilty of misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device in a business transaction, in violation of Subsection 475.25(1)(a), F.S.

   
   

3. Whether or not Richard J. Fenick and Agina J. Fennick, his wife, as purchasers, and Vista Community Builders, Inc. by and through its president, Raymond S. Hurley, as seller, and Vista Realty, Inc., by and through its president, as an active firm member, Raymond S. Hurley, as real estate broker, entered into a contract to purchase and sell certain real property in Palm Beach County, Florida which called for deposits by the buyer to be held in escrow account until the sale is closed; and whether or not the $10,000.00 sum placed with the Vista Community Builders, Inc. was an earnest money deposit made pursuant to the terms of the contract; and whether or not Vista Community Builders, Inc. by and through its president, Respondent, Raymond S. Hurley, failed to deposit and maintain the said funds in an escrow account until the sale closed; thereby showing the Respondent, Raymond S. Hurley, to be guilty of misrepresentation, false policies, false pretenses, dishonest dealing, trick, scheme or device in a business transaction, in violation of Subsection 475.25(1)(a), F.S.

FINDINGS OF FACT

1. The Respondent, Raymond S. Hurley, is the holder of license no. 0042412, held with the Florida Real Estate Commission, at all times pertinent to this administrative complaint.

   
   

2. The Respondent, Vista Realty, Inc., is the holder of license no. 0091754, held with the Florida Real Estate Commission, at all times pertinent to this administrative complaint.

   
   

3. The Respondent, Raymond S. Hurley, is now and was at all times alleged in the complaint, the President and active firm member of the Respondent, Vista Realty, Inc., a registered corporate broker.

   
   

4. On or about November 8 & 26, 1973, Edward Sheredy and Sharon Sheredy, his wife, entrusted the sums of $100.00 and $3,050.00 respectively, to the Respondent, Vista Realty, Inc. as a real estate broker. A secretary of the Respondent corporation, one Marie Tolton, received the aforesaid sums, which represented an earnest money deposit on the purchase of real estate in Palm Beach County, Florida, by Edward Sheredy and Sharon Sheredy. On or about November 8 & 27, 1973, the Respondent, Vista Realty, Inc., by and through its President and active firm member, Respondent, Raymond S. Hurley, deposited the sums of $100.00 aid $3,050.00, respectively, into its escrow or trust bank

   account, to wit, the account of Vista Realty, Inc., escrow account with the American National Bank and Trust Company, Ft. Lauderdale, Florida. This deposit was made by an employee of the Respondent, Vista Realty, Inc., and was made to the account no. 2191-639-3. The balance in the escrow or bank account subsequent to the above deposits was $9,562.98, effective November 27, 1973.

   
   

5. On or about February 19, 1974, Joseph Federico entrusted the sum of

   $5,637.50 to the Respondent, Vista Realty, Inc. as a real estate broker. The aforementioned sum represented part of an earnest money deposit of $5737.50 on the purchase of real estate in Palm Beach County, Florida, being made by Joseph Federico. The remainder of the earnest money deposit was made by voiding a prior real estate contract and transferring the $100.00 earnest money deposit therein to the new transaction. On or about March 1, 1974, the Respondent, Vista Realty, Inc., by and through its President and active firm member, Respondent, Raymond S. Hurley, deposited $5637.50 escrow money into its escrow or trust bank account, to wit, the account of Vista Realty, Inc. placed with the American National Bank and Trust Company, Ft. Lauderdale, Florida. This deposit of escrow was made by an employee of the Respondent, Vista Realty, Inc. into account no. 2191-63-3 after being received by the employee Marie Tolton, a secretary in the Respondent corporation. The balance in the escrow or trust bank account on March 4, 1974, which was present subsequent to the aforementioned deposit was $22,545.48.

   
   

6. On November 27, 1974, the escrow bank account of the Respondent, Vista Realty, Inc. in the American National Bank and Trust Company, Ft. Lauderdale, Florida, reflected the balance of $4,700.48. On November 27, 1974, the aforementioned real estate transactions did not close, and any withdrawal of the earnest money deposit placed by the parties, Sheredy and Federico was not authorized to be made by the Respondents. The total obligation of the Respondents for the payment of the earnest money deposits for the Sheredy and Federico contracts, was $8,887.50. Other escrow funds which the Respondents had on deposit included $91.80 shown on account and $4,050.90 as a cashier's check on the same account, which was an escrow account with the First Community Bank of Boca Raton, Florida. The account no. in the Boca Raton bank was account no. 7145831. The amounts mentioned in the escrow account in the First Community Bank of Boca Raton were those amounts effective on November 27, 1974. Taking the totals of the escrow deposits in both banks, the total amount available on November 27, 1974, was $8,843.18, leaving a $44.32 deficit in honoring the refund of the Federico and Sheredy earnest money deposits. In addition, there was other real estate deposit in the Boca Raton bank, earnest money deposits on two contracts. Those amounts were $2,564.10 for Kathleen G. and Carl F. Monturo, and $2,500.00 for Hogeland Barcalow. Taking the total of the Monturo and Barcalow contracts this would an additional $5,064.10, debit against the available funds in two escrow accounts, which would be in addition to the $44.32 deficit already mentioned. The $5,064.10 could not have been used to satisfy the obligation on the Federico and Sheredy contracts.

   
   

7. On or about August 30, 1974, Arthur Sinett and Silvia Sinett, his wife, as purchasers, went to the offices of Vista Realty, Inc. 2 North Federal Highway, Boca Raton, Florida, to enter into a contract to purchase real estate. The Respondent, Raymond S. Hurley was representing the corporation know as Vista Community Builders, Inc. and received $50,000.00 deposit as earnest money deposit on the purchase of the real estate in two separate installments, one of

   $45,000.00 and one of $5,000.00. The deposit receipt contracts signed was on a form prepared for Vista Realty, Inc. and listed Vista Realty, Inc. as real estate broker in the transaction. A copy of that is Petitioner's Exhibit number 5, admitted into evidence. The contract called for the $5600000 earnest money

   deposit to be placed in an escrow account until the sale was closed, and Raymond

   S. Hurley entered into this contract as President of Vista Community Builders, Inc. listing Vista Realty, Inc. as real estate broker. The money was never placed in an escrow account until closing, as stated in the contract, and this failure to place the money in an escrow account was without the permission of the Sinetts.

   
   

8. On or about July 16, 1974, Richard J. Fenick and Aginia J. Fenick, his wife, entered into a contract for the purchase of real estate. This negotiation of the contract was entered into at the offices of Vista Realty, Inc. at 2 North Federal Highway, Boca Raton, Florida. Raymond S. Hurley signed, in his own name, as the party receiving the earnest money deposit, which was in the amount of $10,000.00. He signed as a contracting party in the name of Raymond S. Hurley, President, Vista Community Builders, Inc. The contract did not show the name of any broker, and in fact, indicated the word none in the space provided for such designation. The contract entered into between the Fenicks and Hurley is petitioner's Exhibit number 19, admitted into evidence. The contract form was a form prepared for Vista Realty, Inc., and contained a statement that deposits by the buyer should be placed in an escrow account until the sale was closed. The Fenicks paid the $10,000.00 to Raymond S. Hurley and the earnest money deposit was never placed in an escrow account, and the failure to place the earnest money deposit in an escrow account was without the permission of the Fenicks.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

10. The motion to dismiss made by the Respondents at the conclusion of the Petitioner's case is hereby denied.

    
    

11. It is concluded as a matter of law, based upon the facts as shown, that the Respondent, Vista Realty, Inc., by and through its President and active firm member, the Respondent, Raymond S. Hurley, has failed to maintain funds in its escrow or trust bank account until dispursement thereof is properly authorized, in the contracts of Edward Sheredy and Sharon Sheredy; and Joseph Federico, in violation of 475.25(1)(i), F.S.

    
    

12. It is concluded as a matter of law, based upon the facts herein, that the Respondent, Raymond S. Hurley, is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or devise in a business transaction, in this State, for his acts in dealing with Arthur Sinett and Silvia Sinett, in violation of 475.25(1)(a), F.S.

    
    

13. It is concluded as a matter of law, based upon the facts herein, that the Respondent, Raymond S. Hurley, is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or devise in a business transaction, in this State, for his acts in dealing with Richard J. Fenick and Aginia J. Fenick, in violation of 475.25(1)(a), F.S.

RECOMMENDATION

It is recommended that the license no. 0042142, held by Raymond S. Hurley, be suspended for one year. It is recommended that the license no. 0091754, held by Vista Realty, Inc. be suspended for one year.

DONE AND ENTERED this 28th day of February, 1977, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Louis B. Guttmann, III, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Ronald Sales, Esquire Sales & Christiansen

247 Royal Palm Way

Palm Beach, Florida 33480

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA DIVISION OF OCCUPATIONS

DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION,

An Agency of the State of Florida,

Plaintiff, PROGRESS DOCKET NO. 2759 PALM BEACH COUNTY

vs. DOAH CASE NO. 76-0243

RAYMOND S. HURLEY and VISTA REALTY, INC.,

Defendants.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at its Executive Headquarters in Winter Park, Florida, on June 22, 1977,

Present: John R. Wood, Chairman Maggie S. Lassetter, Vice-Chairman Levie D. Smith, Jr., Member

Appearances: Louis B. Guttmann, III, Esquire, Attorney for Plaintiff Ronald Sales, Esquire, Attorney for Defendants

Raymond S. Hurley, Defendant

This matter came on for Final Order upon the Examiner's Recommended Order and Exceptions filed by the Plaintiff and by the Defendants, together with the record and oral argument of counsel for Plaintiff and counsel for Defendants, and statements made by Defendant Hurley, and the Commission being fully informed, and upon due consideration thereof, finds:

1.

That according to the records of the Commission Defendant Raymond S. Hurley's present address registered with the Commission is as broker, c/o American Realty & Marketing, Inc., 2 North Federal Highway, Boca Raton, Florida 33431 and Defendant Vista Realty, Inc.`s present address registered with the Commission is as a corporate broker at 255 Palm Bay Road, Suite 6, Palm Bay, Florida 32905.

2.

That the Examiner's "Findings of Fact" and "Conclusions of Law" contained in the Recommended Order are supported by competent, substantial evidence in the record and should be adopted and affirmed by the Commission.

3.

That the Plaintiff's and Defendants' Exceptions to the Examiner's Recommended Order should be rejected by the Commission.

4.

That the recommended penalty of the Hearing Officer should be rejected by the Commission; and that the Defendants' real estate licenses should be suspended for a period of six months.

IT IS THEREFORE ORDERED:

1. That the "Findings of Fact" and "Conclusions of Law" made by the Hearing Examiner and contained in his Recommended Order be, and the same are, hereby, adopted and affirmed as the Order of the Commission;

   
   

2. That the Defendants, Raymond S. Hurley and Vista Realty, Inc. be, and they are hereby, adjudged guilty of failing to maintain funds in the escrow or trust bank account until disbursement thereof is properly authorized in violation of Subsection 475.25(1)(i), Florida Statutes, and that the Defendant, Raymond S. Hurley, be, and he is hereby, adjudged guilty in the Sinett and Fenick transactions of misrepresentation, false promises, false pretenses, dishonest deling, trick, scheme or device in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes;

3. That the Plaintiff's and Defendant's Exceptions to the Examiner`s Recommended Order are Thereby overruled:

   
   

4. That for said violations the registrations of the Defendants, Raymond

S. Hurley and Vista Realty, Inc., as registered real estate brokers, be, and the same are hereby suspended for a period of six months.

DONE AND ORDERED at Winter Park, Florida, this 11th day of July, 1977.

John R. Wood Chairman

Maggie S. Lassetter Vice-Chairman

Levie D. Smith, Jr. Member

I HEREBY CERTIFY that I mailed a copy of the foregoing Final Order, to Ronald Sales, Esquire, SALES & CHRISTIANSEN, Attorneys for Defendants 247 Royal Palm Way, Palm Beach, Florida 33480 by United States registered mail this 11th day, of July, 1977.

C. B. STAFFORD Executive Director

NOTICE TO DEFENDANT: This Order shall become effective on the 10th day of August, 1977. However, you have the right of review by an appellate court, if you desire.

Please comply with this Order. We are including an envelope for your convenience in surrendering your registration certificates.

Docket for Case No: 76-000243

Orders for Case No: 76-000243