vs. ) CASE NO. 79-652
) WILLIAM O'BRIEN, MICHAEL J. ) CORCORAN, AND EXCLUSIVELY ) RENTALS AND MANAGEMENT, INC., )
Respondent. )
An administrative hearing was held on the above matter by H. E. Smithers on October 22, 1980, at Ft. Lauderdale, Florida. The Petitioner was represented by John Huskins and Respondent William O'Brien by Dewey A. F. Ries. Since no one appeared for or presented evidence for Michael J. Corcoran (Corcoran) and Exclusively Rentals and Management, Inc. (Exclusively), a default is appropriate as to these two Respondents. Although this case commenced as Florida Real Estate Commission, Petitioner's name was changed to Board of Real Estate on July 1, 1979.
This action arose from an investigation by Petitioner's personnel in January 1979 into the activities and allegations of dishonored checks issued by Exclusively. As a result, Petitioner issued its emergency suspension of the registration of Respondents Corcoran and Exclusively for 90 days commencing February 13, 1979, and ordered the filing of the instant Administrative Complaint against the three Respondents. With entrance of default against Corcoran and Exclusively, the issue is whether Respondent O'Brien should be disciplined and if so, in what manner.
19 of the Complaint, occurred as alleged, but denied any guilt in connection therewith. This Respondent then presented the Petitioner's Investigator and himself in explanation of the facts.
Conclusions of law that were submitted by the parties have been considered.
About October 4, 1977, Robert Seneca extended his lease with Edward "Whitey" Ford on a condominium unit located at Suite 274, 234 Hibiscus Avenue, Lauderdale-by-the-Sea, Florida, paying to Exclusively $275.00 for the additional one month's rent. The $275.00 was deposited into Exclusively's operating account In the Sun Bank of Wilton Manors. About November 28, 1977, a check was drawn by Corcoran on the operating account for $247.50, payable to Ford, said sum representing the rental less commission. The check was subsequently dishonored due to insufficient funds and at no time subsequent has Ford received the funds due him.
About November 21, 1977, a check for $600.00 was received by Exclusively as payment for rental on Edward "Whitey" Ford's condominium unit located at Suite 274, 234 Hibiscus Avenue, Lauderdale-by-the-Sea, Florida, from Julius Zinn. This $600.00 was deposited to Exclusively's escrow account and on February 9, 1978 a check was issued on Exclusively's escrow account to Ford for
$540.00. The check was subsequently dishonored and Ford has not received the funds due him.
About November 12, 1977, Samuel Mathes entered into a contract to lease a home owned by Lester J. Grant. Mathes deposited with Exclusively $3,300.00, which represented the first and last month's rent, and the security deposit. About December 9, 1977, Exclusively issued an accounting to Grant showing
$1,980.00 due him after deduction of the commission and a check on the operating account of Exclusively for this amount. The check was subsequently dishonored and Grant has not received the $51,988.08 due him.
About December 16, 1977, Neale Murphy leased the residence located at 1533 Southeast 6th Street, Deerfield, Florida, from Sam Gillotti paying
$51,188.88 to Exclusively, representing the first and last month's rent. About January 20, 1970, Exclusively issued an accounting which showed $440.00 owing to Gillotti after deduction of the real estate commission and issued a check drawn on Exclusively's operating account for that amount. That check was returned due to insufficient funds and Gillotti has not received delivery of the funds due him.
About November 16, 1977, Joseph T. Scanlon entered into a lease for property owned by E. P. Goodrich located at 1000 South Ocean Boulevard, Pompano Beach, Florida, paying Exclusively $1,100.00 and about November 21, 1977, a
second check was given Exclusively for $2,700.00. The checks were deposited into Exclusively's operating account. About December 14, 1977, Corcoran drew a check on Exclusively's operating account for $2,700.00, the amount due the Goodriches, less commission; that check was returned for insufficient funds. On February 9, 1978, a check was drawn in Exclusively's escrow account payable to Goodrich for $2,97O.00. The bank dishonored the check and Goodrich has not received the funds due him.
A lease of property was negotiated between G. Porto and P. Franklin, and $51,980.00, representing the first and last month's rent and security deposit was paid. The lease arrangement subsequently broke down and Porto released his claim to the earnest money deposit held by Exclusively authorizing payment to Franklin. Abaut October 17, 1977, Exclusively transferred the
$1,980.00 from its escrow account to its operating account and Franklin has not received the 1,980.00 due him.
About December 31, 1977, Exclusively leased an apartment owned by Charles Hora to Cindy Noves and received payment for the first and last month's rent plus the security deposit for a total of $740.00. About January 12, 1978, Exclusively leased to Harry Maier another apartment owned by Charles Hora and received the first and last month's rent plus the security deposit for a total of $740.00. $640.00 was to he the total commission. To this date, Hora has received only $456.09 of the $840.00 due him. About February 9, 1978, a check drawn on Exclusively's escrow account for $202.00 to Charles Hora was subsequently dishonored and at no time subsequent has Hora received the funds due him.
In October, 1977, Bernard Goldstein, lessee of an apartment owned by Basil de Verteuil, exercised an option to extend his lease. About November 16, 1977, Goldstein paid to Exclusively the sum of $500.00 by check which was deposited into Exclusively's operating account, the $500.00 representing the rental payment for the additional one month extension. About January 16, 1978, Corcoran wrote a check on the operating account of Exclusively in to amount of
$450.00, said sum representing the rental payment less commission. That check was dishonored by the bank and at no time subsequent thereto has Verteuil received the funds due him.
About December 9, 1977, Robert Reeder leased his rental property located at 1016 Northeast 17th Way, Apartment 4, Fort Lauderdale, Florida, to Meg Wilson. Exclusively issued an accounting about December 9, 1977, which stated that they had received $370.50 from Wilson. The accounting further stated that Exclusively owed Reeder $190.00 after the deduction of the $180.00 commission. On February 9, 1978, a check was drawn on Exclusively's escrow account in the amount of $190.00 to Reeder. That check was subsequently dishonored by the bank and at no time has Reeder received the funds due.
About December 6, 1977, William McCormick entered into a lease to rent real property owned by Stephen Runkle for a period of six months. About December 12, 1978, Exclusively sent an accounting to Runkle showing that they had received $790.08 representing the first and last month's rent and security deposit. The $790.00 check from McCormick was deposited to Exclusively's operating account. The accounting showed that after deduction of commission and certain cleaning charges that $578.00 was due Runkle. About January 17, 1978, a check was drawn on exclusively's operating account in the amount of $578.00. That check was dishonored and at no time subsequent has Runkle received the funds due him.
About November 15, 1977, George F. Meyer executed a check payable to Exclusively in the amount of $1,200.00, representing one month's rent plus a
$600.00 security deposit on a residence located at 1824 Coral Ridge Drive, Fort Lauderdale, Florida, owned by Norf Petrucci. The security deposit was never forwarded to Petrucci. The premises were inspected by Petrucci at the termination of the lease and it was determined that Meyer was entitled to the return of his security deposit but at no time has Meyer received the funds due him.
About November 20, 1977, Julius Volinsky leased his residence, known as Apartment 417, l Las Olas Circle, Fort Lauderdale, Florida, to Julius Burt for a term of 12 months, through Exclusively. Burt executed a check for
$1,500.00 payable to Exclusively, said sum representing the first and last month's rent and security deposit. That check was deposited to Exclusively's operating account. An accounting prepared by Exclusively about December 12, 1977, showed $400.00 due Volinsky and a check was drawn on Exclusively's operating account to Volinsky. This check was returned due to insufficient funds and at no time has Exclusively delivered the $400.00 to Volinsky.
About December 4, 1977, Exclusively leased an apartment owned by Michael Bombardier to Selma Schachter. The lease was for four months with a total rent of $3,100.00 which was paid to Exclusively. About December 19, 1977, a check was drawn on Exclusively's operating account for $2,790.00 payable to Bombardier, representing the amount due Bombardier less the real estate commission of $310.00. That check was returned due to insufficient funds. In January, 1978, Exclusively gave Bombardier $480.00 as partial payment but the remaining $2,310.00 is still due.
In January, 1977, Exclusively secured Robert DiTacchio to rent a condominium unit owned by Robert Knack at 3000 Rio Marsh Street, Fort Lauderdale, Florida. Exclusively received from DiTacchio $900.00 representing the first and last month's rent and the security deposit; $300.00 was to be retained by Exclusively as the commission leaving a balance due Knack of
$600.00. Knack has not received the $600.00 due him.
In November, 1977, Joey Clark, salesperson for Exclusively showed an Apartment 4-G, in the Royal Park Condominium, Fort Lauderdale, Florida, to Jeannette Verboom. Verboom advanced $680.00 to Exclusively to secure a lease for Apartment 4-G. Apartment 4-H was, in fact, the apartment upon which Exclusively had its listing agreement. Upon being made aware of the mistake and viewing Apartment 4-H, Verboom requested the return of her money. On February 9, 1978, a check was issued to Verboom from Exclusively's escrow account for
$680.00. That check was subsequently dishonored and Verboom has not received the funds due her.
About November 4, 1977, William O'Brien, broker for Exclusively, leased an apartment at 101 Royal Park Drive, Oakland Park, Florida, belonging to Elizabeth Finn to Mr. and Mrs. Eric Whittel and issued a receipt for $600.00 received from the Whittels for the rental of the apartment. At no time has Finn received the funds due her.
About November 29, 1977, Edward J. Pfleger leased his apartment located at Suite 4-H, Building 113, Royal Park Condominium, 1500 Northwest 38th Street, through Exclusively to Marie Pugliese and Barbara Foreman. Exclusively received $580.00 representing the first and last month's rent, plus $100.00 security deposit. The $680.00 was deposited to Exclusively's operating account. About January 4, 1978, a check on Exclusively's operating account was drawn for
$332.00 payable to Pfleger, representing the rental monies due him less the real estate commission. The check was returned due to insufficient funds, and Exclusively has not paid Pfleger the $332.00 due him.
Due to the above checks that were issued without sufficient funds, an overdraft on Exclusively's operating account at the Sun Bank of Wilton Manors in the amount of $3,367.88 was created. At no point has Exclusively paid Sun Bank for the overdraft.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Section 475.25(1), Florida Statutes (1979), provides in pertinent part:
The Board ... may suspend a license, may revoke a license, may impose an
administrative fine not to exceed $1,000 for each count or separate offense, or may issue a reprimand, if it finds that the licensee has:
Violated any provision of s.475.42 .
Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing ...,culpable negligence, or breach of trust.
Failed to account or deliver to any person ... upon demand of the person entitled to such accounting and delivery ...;
O'Brien contends he was not personally or directly involved in any of the transactions and was not responsible for the actions of Respondent Corcoran during the period of his disability and prior to his corporate resignation (October 10 - December 30, 1977). However, the above transactions l and 14 were prior to October 10 and 6 and 16 involved O'Brien directly (respectively, his signature required to transfer funds from escrow to the operating account, and in 16, he handled the lease) In any event, O'Brien knew, or should have known, that he, as Exclusively's sole broker and active firm member, was responsible for the operations of that company until his resignation. Transactions 4, 7, 14 and 19 were after O'Brien's December 30 resignation; therefore, O'Brien was responsible for 14 of the 18 infractions. Shelton v. Florida Real Estate Commission, 120 So.2d 191 (Fla. 2d DCA 1960); Nantell v. Lim-Wich Construction Company, 220 So.2d 634(Fla. 4th DCA 1970); Keyes Company v. Sons, 302 so.2d 1273 (Fla. 3d DCA 1980).
Respondent argues that revocation or suspension of his license is penal in nature and is not permitted or justified under the circumstances. Admittedly, revocation or suspension of O'Brien's broker's license would be harsh considering no complaints against O'Brien doing business as William O'Brien Registered Real Estate Broker, nonetheless, O'Brien was responsible for Exclusively and 14 of the counts in the Complaint.
From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that William O'Brien be fined the sum of $2,800.00 ($200.00 for
each of 14 counts) . It is further
RECOMMENDED that the licenses of Michael J. Cocoran and Exclusively Rentals and Management, Inc. be revoked.
DONE AND ORDERED this 20th day of November, 1980, in Tallahassee, Florida.
HAROLD E. SMITHERS
Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1980.
Dewey A. F. Ries, Esquire
Michael J. Corcoran
