STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Plaintiff, )

)

vs. ) CASE NO. 78-1446

) TRICOLI REALTY, INC., formerly )

doing business as JO TRICOLI ) REALTY, INC., JOSEPHINE L. ) TRICOLI, Broker, ANTHONY F. ) TRICOLI, Broker, and PHYLLIS B. )

LUDWIGSEN, Salesman, )

)

Defendants. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on November 20, 1978, in Miami, Florida.

APPEARANCES

For Plaintiff: Kenneth M. Meer, Esquire

Staff Counsel

Florida Real Estate Commission

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

For Defendants: Pearl R. Ferer, Esquire

304 Concord Building

66 West Flagler Street Miami, Florida 33130

The Florida Real Estate Commission (Commission) issued an Administrative Complaint against the Defendants on February 8, 1978. Thereafter, in accordance with the provisions of Section 120.57(1), Florida Statutes, the Commission requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing. The hearing was initially scheduled for October 31, 1978, but was continued at the request of Defendants until November 20, 1978.

In the Administrative Complaint, the Commission seeks to revoke or suspend the Defendant's right to practice pursuant to their real estate broker's or salesman's licenses, or to otherwise discipline the Defendants for actions described in Counts 1 through 3 of the Administrative Complaint. The Commission alleges in Count 1 of the Administrative Complaint that Defendant, Jo Tricoli Realty, Inc., now doing business as Tricoli Realty, Inc., ("Tricoli Realty") and Anthony F. Tricoli are guilty of failure to maintain funds in their escrow

account until disbursement was properly authorized in violation of Section 475.25(1)(i), Florida Statutes. In Count 2 of the Administrative Complaint the Commission alleges that Defendants Tricoli Realty, Josephine L. Tricoli, and Anthony F. Tricoli are guilty of failing to deliver a $450 security deposit which was not their property and which they were not in law or in equity entitled to retain in violation of Section 475.25(1)(c), Florida Statutes.

Finally, in Count 3 of the Administrative Complaint, the Commission alleges that Defendants Tricoli Realty, Josephine L. Tricoli, Anthony F. Tricoli and Phyllis

1. Ludwigsen are guilty of preparing a lease agreement in violation of Section 475.25(1)(a), Florida Statutes, and Section 475.25(1)(d), Florida Statutes.

   
   

   At the final hearing, the Commission called Hartley Kroul and Lois Renee Zermuhlen Herr as its witnesses. The Defendants called Anthony Tricoli as its witness. The Commission offered Plaintiff's Exhibits 1, 2, 3, 4 and 5, all of which were received into evidence. The Defendants offered no exhibits into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. Defendant Jo Tricoli Realty, Inc. was a registered real estate corporate broker, holding Certificate No. 0089973 until August 18, 1976, at which time its Articles of Incorporation were amended to change the name of the business to Tricoli Realty, Inc.; Josephine L. Tricoli is a registered real estate broker, Certificate No. 0089966; Defendant Anthony F. Tricoli is a registered real estate broker, Certificate No. 0089956; and Defendant Phyllis B. Ludwigsen is a registered real estate salesman with Certificate No. 0114963.

      The Defendant's address registered with the Commission is 1550 West 84th Street, Hialeah, Florida, 33014. At all times material hereto, Defendants Josephine L. Tricoli and Anthony F. Tricoli were brokers and active firm members of Tricoli Realty, and Defendant Phyllis B. Ludwigsen was an active salesman employed with the same firm.

      
      

   2. On September 25, 1975, Mr. and Mrs. Hartley Kroul viewed an apartment at 15416 Sharpecroft Drive, Miami Lakes, with Defendant Phyllis Ludwigsen of Tricoli Realty, the broker in the transaction.

      
      

   3. Thereafter, a lease was prepared by Defendant Ludwigsen, based upon instructions from the owner of the property. The lease was prepared on a form furnished by Tricoli Realty, was prepared in a branch office of Tricoli Realty, was witnessed by Defendant Ludwigsen and the manager of the branch office of Tricoli Realty, and was signed by the parties on September 25, 1975.

      
      

   4. A clause typed into the lease provides that the first and last months rent, together with a security deposit of $450, for a total of $1,350, was to be held in escrow by Tricoli Realty, and Tricoli Realty did, in fact, receive a check for $1,350 for Kroul in accordance wit this clause of the lease agreement. The lease was for a one-year term, and expired on September 26, 1976.

      
      

   5. Notwithstanding the provision of the lease concerning the escrow deposit, within two or three days after September 25, 1975, Defendant Tricoli Realty , by a check signed by Defendant Anthony Tricoli, disbursed $900 of the escrow monies to the lessor-property owner. The additional $450 was retained by Tricoli Realty as a commission. Defendant Anthony Tricoli did not review the terms of the lease before disbursing the $900, although the lease was located in a branch office of Tricoli Realty, and could easily have been examined prior to disbursement.

   6. The Krouls vacated the premises after the expiration of the lease and thereafter sought refund of the security deposit from Tricoli Realty. A demand for a refund of the security deposit was made upon Defendant Anthony Tricoli, but he refused to refund the security deposit and advised the Krouls to seek the refund from the property owner. Thereafter, the property owner returned $290 of the security deposit to Tricoli Realty, claiming certain expenses incurred after vacating the premises. Tricoli Realty then attempted to refund the $290 to the Krouls, who refused to accept that offer in settlement of their claim for the entire security deposit. The Krouls eventually resorted to a court of competent jurisdiction for refund of their security deposit, where the issue of civil liability was ultimately resolved.

      
      

   7. The Krouls never authorized Tricoli Realty, Josephine L. Tricoli, Anthony F. Tricoli, Phyllis B. Ludwigsen, or any other representative or employee of Tricoli Realty to disburse $900 of the escrow money to the property owner prior to the expiration of the lease.

      
      

   8. No testimony was offered that Defendant Josephine L. Tricoli was in any way involved in, or had any knowledge of, the Kroul transaction.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Sections 120.57(1) and 120.60, Florida Statutes.

      
      

   10. Defendants Tricoli Realty and Anthony F. Tricoli violated Section 475.25(1)(i), Florida Statutes, by failing to maintain funds deposited with them in an escrow bank account until disbursement was properly authorized, as contended in Count 1 of the Administrative Complaint.

       
       

   11. Defendants Tricoli Realty and Anthony F. Tricoli violated the provisions of Section 475.25(1)(c), Florida Statutes, by failing to account or deliver to the Krouls money which had come into the hands of Tricoli Realty and Anthony F. Tricoli, which was not the property of those Defendants or which those Defendants were not in law or equity entitled to retain, after demand by the person entitled to an accounting and delivery of those funds.

       
       

   12. Defendants Tricoli Realty and Phyllis B. Ludwigsen violated the provisions of Section 475.25(1)(a), Florida Statues, as alleged in Count 3 of the Administrative Complaint, by preparing a lease agreement in violation of the laws of the State of Florida. See, Florida Bar v. Irizarry, 268 So.2d 377 (Fla. 1972); Keyes Company v. Dade County Bar Association, 46 So.2d 605 (Fla. 1950).

       
       

   13. The charges against Defendant Josephine L. Tricoli in Counts 1, 2 and

       3 of the Administrative Complaint are not substantiated by the evidence contained in the record, and should be dismissed.

       
       

   14. The charges against Defendant Anthony F. Tricoli in Count 3 of the Administrative Complaint are not substantiated by the record, and should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

1. That a Final Order be entered by the Florida Real Estate Commission dismissing the Complaint against Defendant Josephine L. Tricoli.

   
   

2. That a Final Order be entered by the Florida Real Estate Commission dismissing Count 3 of the Complaint against Defendant Anthony F. Tricoli.

   
   

3. That a Final Order be entered by the Florida Real Estate Commission suspending the registration of Defendant Phyllis B. Ludwigsen for a period of three months.

   
   

4. That a Final Order be entered by the Florida Real Estate Commission suspending the registration of Defendant Tricoli Realty, Inc. for a period of six months.

   
   

5. That a Final Order be entered by the Florida Real Estate Commission suspending the registration of Defendant Anthony F. Tricoli for a period of six months.

DONE AND ENTERED this 15rd day of February, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

MAIL: Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675

COPIES FURNISHED:

Kenneth M. Meer, Esquire Staff Counsel

Florida Real Estate Commission

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

Pearl R. Ferer, Esquire

304 Concord Building

66 West Flagler Street Miami, Florida 33130

Docket for Case No: 78-001446

Orders for Case No: 78-001446