STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2309

)

DONALD L. LLOYD, )

)

Respondent. )

)

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 March 22, 1983 in Fort Lauderdale, Florida. The parties were afforded leave through May 12, 1983 to submit proposed memoranda supportive of their respective positions. 1/ The parties submitted proposed recommended orders which were considered by me in preparation of this Recommended Order. 2/

APPEARANCES

For Petitioner: Harold M. Braxton, Esquire

45 SW 36th Court Miami, Florida 33135

For Respondent: Donald S. Rose, Esquire

Rivergate Plaza, Suite M130

444 Brickell Avenue Miami, Florida 33131

ISSUE

The issue posed for decision herein is whether or not the Respondent, based on conduct set forth hereinafter in detail, unlawfully withdrew and transferred monies from an escrow account and is therefore guilty of fraud, dishonest dealing by trick, scheme or device, or breach of trust and conversion within the purview of Subsection 475.25(1)(b), Florida Statutes (1979)

At the final hearing, Petitioner called Donald Lloyd, Respondent, Donald Reda and Kenneth Viviano as its witnesses. Petitioner offered Exhibits 1 through 7 which were received into evidence. Respondent called no witnesses and offered Respondent's Exhibits 1 through 4 which were received into evidenced.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, posthearing memoranda and the entire record complied herein, I hereby make the following relevant findings of fact.

   
   

2. By its administrative complaint filed herein on July 29, 1981, Petitioner seeks to take disciplinary action against the Respondent as licensee and against his license as a real estate salesman.

   
   

3. During times material herein, Respondent was a licensed real estate salesman and has been issued license No. 0188032.

   
   

4. During times material herein, Century 21, Lloyds of Lauderdale, Inc., was a Florida licensed real estate corporate broker with its offices located at 3300 NE 33rd Street, Fort Lauderdale, Florida corporate entity was licensed under that name on October 12, 1979. The predecessor entity was known as Lloyds' of Lauderdale, Inc., and had its escrow account at Gulfstream Bank H.A., formerly known as Gulfstream American Bank and Trust Company H.A., formerly known as American National Bank and Trust Company of Fort Lauderdale, which account number was 005-1-00160-3.

   
   

5. Upon obtaining the change of name, i.e. Century 21, Lloyds of Lauderdale, Inc., the successor entity maintained the same escrow account number at the same bank and continued using the checks on that account bearing its former name, Lloyds of Lauderdale, Inc.

   
   

6. During times material herein, Respondent was a salesman associated with Century 21 and was an authorized signatory on the above-referred escrow account. Respondent was also a stockholder, officer and director of Century 21, Lloyds of Lauderdale, Inc. Respondent was also the owner of an unrelated business known as Brewer's Care Center, which in turn operated a motel located in Georgia. During times material, Respondent owned a one-third (1/3) interest in Century 21, Lloyds of Lauderdale, Inc.

   
   

7. On February 3, 1981, Respondent issued a check, No. 79-228, drawn on the Century 21, Lloyds of Lauderdale, Inc., escrow account, payable to Brewer's Care Center in the amount of $11,903.12. Approximately fifteen days later, on February 18, 1981, Respondent issued another check, No. 79-223, drawn on the above-referenced escrow account payable to Brewer's Care Center in the amount of

   $2,500.

   
   

8. On March 3, 1981 Respondent verbally authorized the Gulfstream Bank to withdraw $399.66 from the referenced escrow account to pay interest on loan No. 59-004-00-058-3866-4. Also, on March 18, 1981 Respondent verbally authorized the withdrawal of $799.32 to be applied against the same loan. Neither of the above-referenced checks or verbal loan authorizations were, in any wise, connected with any real estate transactions from which monies were held in escrow by the Respondent.

   
   

9. The verbal withdrawals and checks, either authorized or drawn by the Respondent, reduced the escrow account by a sum of approximately $15,602.10 and depleted the account to such an extent that Century 21, Lloyds of Lauderdale, Inc. was unable to meet demands for the return of the escrow funds held in trust (See Petitioner's Composite Exhibit No. 1).

10. Respondent took the position that the monies represented by the payments of the two checks made payable to Brewer's Care Center were repayments of loans and that he was unaware that the accounts which the checks were drawn against were, in fact, escrow accounts. In this regard, evidence reveals that the Respondent suffered a heart attack during November of 1980 and his health regressed to the degree that he was placed in the intensive care unit at a hospital in Cleveland, Ohio for an extended period of time.

    
    

11. At the conclusion of the Petitioner's case in chief, Respondent's counsel filed an ore tenus motion to continue the subject hearing until the following day. The undersigned afforded Respondent's counsel an opportunity to submit, for the record, his basis for the continuance. However, that motion was denied based on the numerous continuances which had been previously granted by the undersigned to Respondent's counsel (See Order dated November 16, 1982 - Copy attached).

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of 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. The Respondent, a licensed real estate salesman, is subject to the disciplinary guides of Chapter 475, Florida Statutes.

    
    

16. During time material herein, the Respondent maintained an ownership interest in Century 21, Lloyds of Lauderdale, Inc.

    
    

17. Section 475.25(1), Florida Statutes empowers the Florida Real Estate Commission to suspend a license for a period not exceeding ten (10) years, revoke a license, impose an administrative fine not to exceed $1,000 for each offense, or issue a reprimand if it finds that a licensee has engaged in a:

    
    

    (b) . . . 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 the listing contract

    . . . in a real estate transaction . . . (See Florida Statutes 475.25(1)(b)(1979) presently codified at Florida Statutes, Section 475.25(1)(_)(1981).

    
    

18. Based on the foregoing Findings of Fact and Conclusions of Law, Respondent has violated the referenced provision of Subsection 475.25(1)(b), Florida Statutes (1979) by committing a breach of trust in his business

transactions involving the use of escrow funds, in a personal business venture from the Century 21, Lloyds of Lauderdale, Inc. escrow account and by violating the duties imposed upon him by the laws of this state and by the terms of escrow agreements concerning funds held in trust by Century 21, Lloyds of Lauderdale, Inc., an entity in which he (Respondent) maintained an ownership interest.

Respondent's claim that he considered his use of the escrow funds to be a repayment of funds advanced to Century 21 is unpersuasive and is rejected.

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

RECOMMENDED that the Respondent's real estate salesman license No. 0188032 be REVOKED.

DONE and RECOMMENDED this 26th day of August, 1983 in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1983.

ENDNOTES

1/ The parties waived the time requirement that a recommended order be entered within 30 days following the close of the hearing.

2/ To the extent that the proposed findings of fact and conclusions of law contained in the proposed recommended orders are not incorporated herein, said proposed findings of fact and conclusions of law were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

COPIES FURNISHED:

Harold M. Braxton, Esquire

45 SW 36th Court Miami, Florida 33135

Donald S. Rose, Esquire Rivergate Plaza, Suite M130

444 Brickell Avenue Miami, Florida 33131

William Furlow, Esquire Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002309

Orders for Case No: 81-002309