STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-539

) PD NO. 3454

ALVIN I. SIEGEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Delphene C. Strickland, assigned Hearing Officer of the Division of Administrative Hearings, on April 9, 1979, beginning at 3:30 p.m. in the Florida Real Estate Commission Branch Office, Third Floor, at 401 NW 2nd Avenue in Miami, Florida.

APPEARANCES

For Petitioner: Kenneth M. Meer, Esquire

Florida Real Estate Commission

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

For Respondent: Alvin I. Siegel, pro se

c/o Cambridge Realty 6313 Sunset Drive

South Miami, Florida 33143

ISSUE

Whether the Respondent, Alvin I. Siegel, should be suspended or otherwise disciplined for failure to properly disburse funds or to retain said funds in an escrow account.

FINDINGS OF FACT

1. Respondent Alvin I. Siegel is a registered real estate broker with License #0080637, trading under the registered trade name of Cambridge Realty in South Miami, Florida.

   
   

2. An administrative complaint dated February 7, 1979, was filed by the Petitioner Commission, alleged that the Respondent has been guilty of failure to account for or deliver monies which had come into his hands and which were not his own property. Respondent Siegel requested an administrative hearing.

   
   

3. On or about February 16, 1973, Sylvia M. Ramirez executed a purchase and sale contract and receipt for deposit for a house located in Dade County, Florida. The house was owned by Deanna P. Cooper. Ms. Ramirez had deposited

   $1,325.00 as earnest money deposit in the escrow account of broker Respondent Siegel. The contract provided that if the purchaser could not obtain a mortgage, the deposit would be refunded: that if the purchaser breached the contract, the deposit would be forfeited and divided equally by the seller and the broker; and that if the seller defaulted, the brokerage commission would be paid only upon a successful suit for specific performance by the purchaser.

   
   

4. Respondent Siegel was notified of the date of closing the same day of the closing, July 20, 1973, but did not attend because of prior commitments. Later that day, the seller, Ms. Cooper, presented a closing statement to the Respondent stating that the transaction had closed and that she wanted the excess of the deposit over the commission owed to broker Siegel. He disbursed to her $235.00, which was the excess of the deposit over and above the commission. Respondent Siegel learned later that the checks issued at the closing were cancelled. Demands were made upon Respondent Siegel by both the seller, Ms. Cooper, and the purchaser, Ms. Ramirez, for the deposit money. The seller, Ms. Cooper, demanded one-half of the deposit as a forfeiture, and the purchaser, Ms. Ramirez, demanded that the money should be refunded to her. No suit for specific performance was instituted. Respondent Siegel refused to pay the seller, Ms. Cooper, the difference between the amount he had disbursed at the time she submitted the closing statement to him and one-half the deposit (i.e. $427.50). A lawsuit was filed by Sylvia Ramirez on December 4, 1973, demanding return of the deposit. The would-be seller, Ms. Cooper, was joined as a party Respondent, so that the rights of all parties could finally be determined. Respondent Siegel was advised by his attorney not to disburse monies to any of the parties, and he followed his attorney's advice. The lawsuit ended in dismissal in January of 1977, and no demand has been made upon Respondent Siegel since that date by either Ms. Cooper or Ms. Ramirez.

   
   

5. Respondent Siegel has agreed to rely on the advise of the Petitioner Commission, and has stated that he is ready to disburse the necessary funds but is in doubt as to his duty.

   
   

6. Both parties submitted memoranda of law and recommendations. These instruments were considered in the writing of this Order.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of this cause pursuant to Section 120.57, Florida Statutes.

   
   

8. Section 475.25(1)(c), Florida Statutes, provides as follows:

   
   

   1. The registration of a registrant may be suspended for a period not exceeding 2 years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:

      (c) Failed to account or deliver to any person, including registrants under this chapter, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document, or thing of value, including a share of a real estate commission, or any secret or illegal profit, or any divisible

      share or portion thereof, which has come into his hands and which is not his property, or which he is not in law or equity entitled to retain, under the circumstances, and 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; provided, however, that, if the registrant shall , in good faith, entertain doubt as to his duty to account and deliver said property, or as to what person is entitled to the accounting and delivery, or if conflicting demands therefor shall have been made upon him and he has not appropriated the property to his own use or intermingled it with his own property of like kind, he may notify the commission promptly, truthfully stating the facts, and ask its advice thereon, or after notice thereof to the commission, shall promptly submit the issue to arbitration by agreement of all parties, or interplead the parties, or otherwise seek an adjudication of the question in a proper court and shall abide, or offer to perform, the advice of the commission or the orders of the court or arbitrators, no information against him shall be permitted to be maintained; . . .

      
      

9. Respondent Siegel has not violated the foregoing statute. His options under the statute remain open.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that this complaint be dismissed without prejudice.

DONE AND ORDERED this 29th day of June 1979 in Tallahassee, Florida.

COPIES FURNISHED:

Kenneth M. Meer, Esquire Florida Real Estate Commission

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

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings ROOM 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Lawrence C. Rice, Esquire 6075 Sunset Drive, Suite 203

Miami, Florida 33143

Mr. Alvin I. Siegel c/o Cambridge Realty 6313 Sunset Drive

South Miami, Florida 33143

Docket for Case No: 79-000539

Orders for Case No: 79-000539