STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-946

) (PD 19385) RICHARD A. ANGLICKIS and AMERICAN )

HERITAGE REALTY, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 4, 1980, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

For Respondents: Allen M. Parvey, Esquire

Post Office Box 2366

Fort Myers, Florida 33902

ISSUE

The issue presented for decision herein is whether or not the Respondents' retention of and failure to deliver an earnest money deposit constitutes conduct violative of Section 475.25(1)(a), Florida Statutes, and thereby failed to account and deliver monies which came into their possession and was converted in contravention of Section 475.25(1)(c), Florida Statutes.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

1. Pursuant to an administrative complaint filed approximately April 25, 1980, the Petitioner, Department of Professional Regulation, Board of Real Estate, seeks to suspend, revoke or otherwise discipline the Respondents as licensees based on conduct which will be set forth hereinafter in detail.

2. Respondent, Richard A. Anglickis, is a registered real estate broker and is issued license number 00018669. Respondent, American Heritage Realty, Inc., is a registered corporate real estate broker, having been issued license number 169478. Respondent Anglickis is registered with Petitioner as the active firm member broker of and for Respondent, American Heritage Realty, Inc.

   
   

3. On March 1, 1979, Michael T. and Louise E. Keating of Pineola, North Carolina, entered a contract for purchase and sale of real property from Mr. and Mr. Aubrey of Springfield, Ohio, for a total sales price of $23,900.00. The transaction was scheduled to close on or before May 15, 1979. The contract was contingent upon the purchasers obtaining a $19,000.00 new purchase money mortgage for which application was made with First Federal of DeSoto in Lehigh, Florida. Respondent, through its sales agents, assumed the task of obtaining purchase money financing for the Keatings.

   
   

4. Upon entering the contract, purchasers gave Respondents a $900.00 earnest money deposit in the form of a check payable to Respondent, American Heritage Realty, Inc., which was to be held in escrow according to the terms of the contract. The Keatings also tendered to Respondent, American Heritage Realty, Inc., an additional deposit of $4,000.00 in the form of a check which was also to be held in escrow until the transaction closed on May 15, 1979.

   
   

5. By letter dated May 8, 1979, First Federal of DeSoto advised Respondent and the Keatings that their application for a $19,000.00 purchase money first mortgage financing could not be approved since "their debt ratio of 44 percent far exceeded First Federal's guidelines of a 33 percent debt ratio". (Petitioner's Composite Exhibit B.)

   
   

6. Robert Campbell, a mortgage broker for Lee County Mortgage and Title Company, presented the application to secure financing for the Keatings. Mr. Campbell did not submit any application for mortgage financing for the Keatings other than the application submitted on behalf of the Keatings to First Federal of DeSoto. On May 11, 1979, during a telephone conversation with Mrs. Keating, Mr. Campbell advised Mrs. Keating that her loan application for mortgage financing had been rejected and inquired if the Keatings were willing to make an additional down payment in the amount of $7,000.00. The Keatings advised Mr. Campbell that they would consider making the larger down payment but declined to do so inasmuch as Mr. Keating had become ill and they were of the opinion that they needed to retain as much ready cash as possible until such time as they sold their home in North Carolina. The Keatings made it clear to Messrs. Campbell and Respondent, Richard A. Anglickis, that they were not interested in closing the transaction if it required making an additional down payment of

   $7,000.00. (See Petitioner's Exhibit D.) Also, the Keatings were of the opinion that they were receiving a refund of $4,775. which amount represented the total down payment less the maximum amount of forfeiture of $125.00 as provided for in paragraph two (2) of the contract. (Petitioner`s Exhibit A.)

   
   

7. Paragraph two (2) under "Terms and Conditions of Sale" provides in pertinent part that:

   
   

   "In the event PURCHASER'S application for mortgage financing is not approved within 120 days from date hereof, all monies receipted for, less an amount not to exceed $125.00 to reimburse BROKER for costs and expenses incurred, will he returned to the PURCHASER and this contract will be null and void."

8. In this regard, Petitioner stipulated that the amount which should have been withheld as a forfeiture should not have exceeded the maximum amount of

   $125.00.

   
   

9. The Keatings maintained throughout that they considered that they would be getting a refund of approximately $4,775.00. At no time did the Keatings indicate to Respondents' agents that they were agreeing to forfeit the $900.00 deposit if the transaction did not close. In this regard, the Keatings testified that they preferred to lose 900.00 as opposed to the entire down payment of $4,900.00; however, they at no time agreed to a forfeiture of any of the deposit since the transaction did not close.

   
   

10. The Keatings received a refund of $4,000.00 from Respondent, Richard

    A. Anglickis, on approximately May 21, 1979. (Petitioner's Exhibit C.) By letter of same date, Respondent Anglickis advised the Keatings that the tender of the $4,000.00 represented a "full refund of the cancellation of your contract number R-1981". Respondent Anglickis added that that payment confirmed an agreement and understanding between the Keatings and a Mr. Marciano of Respondent's staff.

    
    

    RESPONDENT'S DEFENSE

    
    

11. Respondents urged that the Keatings anticipatorily breached the purchase contract on approximately May 18, 1979. In support of this position, Respondent points to the position that when the Keatings advised that they were no longer interested in pursuing the matter further if additional monies were paid, that there was still remaining approximately seventy-five (75) days within which Respondent had time to secure or otherwise arrange financing for the Keatings. However, Respondent Anglickis and mortgage broker Campbell conceded that the mortgage financing application submitted to First Federal of DeSoto was the only mortgage application submitted on behalf of the Keatings. Respondent Anglickis considered that the Keatings underwent what is commonly referred to as "buyer's remorse" and wanted to cancel the contract based on his understanding of the conversations between the Keatings and Mr. Marciano of his staff. (Testimony of Richard A. Anglickis and Robert Campbell.)

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

14. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

    
    

15. During times material, Richard A. Anglickis was a registered real estate broker with the Petitioner.

    
    

16. During times material, American Heritage Realty, Inc., was a registered corporate real estate broker with the Petitioner. Section 475.25(1)(b), Florida Statutes (1979), authorizes the Petitioner to take disciplinary action against a licensee who is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest

    dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state. . .or has violated a duty imposed upon him by law or by the terms of a listing, contract. . .in a real estate transaction. . .

    
    

17. Section 475.25(1)(d) , Florida Statutes (1979) makes it unlawful for a licensee to fail to account or deliver to any person. . .any personal property such as money, funds, deposit. . .including a share of a real estate commission.

    . .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.

    
    

18. Paragraph two (2) under the terms and conditions of sale of the contract entered into by the Keatings provides in pertinent part that "In the event purchaser's application for mortgage financing is not approved within 120 days from date hereof, all monies receipted for, less an amount not to exceed

    $125.00 to reimburse broker for cost and expenses incurred, will be returned to the purchaser and this contract will be null and void."

    
    

19. Based on the foregoing contract provision and the Keatings' creditable evidence to the effect that at no time did they forfeit any of the deposit tendered to the Respondents; Respondents' expressed assumption of the burden of obtaining financing; the letter of rejection by the only lending institution with which an application on behalf of the Keatings was placed; the admissions by Respondents' agents that the Keatings evidenced a desire to terminate the contract only if it required making an additional substantial down payment in the amount of $7,000.00; the contract proviso which clearly indicates that the maximum amount that the Keatings were liable as a forfeiture was $125.00, all lead to the inescapable conclusion that Respondents' retention of and failure to deliver the Keatings' entire earnest money deposit less $125.00 amounts to violative conduct within the meaning of Subsections 475.25(1)(a) and 475.25(1)(c), Florida Statutes (presently codified as Subsection 475.25(1)(b) and 475.25(1)(d), Florida Statutes (1979)). It is so concluded.

RECOMMENDATION

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

RECOMMENDED:

1. That the Respondents, Richard A. Anglickis and American Heritage Realty, Inc., be ordered to return the entire nine hundred dollar ($900.00) earnest money deposit paid by the Keatings under the Contract of Purchase and Sale of Real Property from Mr. and Mrs. Aubrey of Springfield, Ohio, within thirty (30) days of the rendition of the Petitioner's final order in this administrative proceeding.

   
   

2. That in the event Respondents fail to refund to the Keatings the full deposit, their licenses, numbers 0018669 and 169478, be suspended for a period of one (1) year.

   
   

3. That upon full refund to the Keatings of their entire earnest money deposit, the Respondents be issued a written reprimand cautioning them against further violations of Section 475.25, Florida Statutes.

RECOMMENDED this 19th day of September, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980.

ENDNOTE

1/ The cited statutory provisions were amended effective July 1, 1979, and are presently codified as Section 475.25(1)(b) and Section 475.25(1)(d), Florida Statutes, respectively.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

Allen M. Parvey, Esquire Post Office Box 2366

Fort Myers, Florida 33902

Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 80-000946

Orders for Case No: 80-000946