STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2399

) THOMAS GRENINGER and CRONAN ) REALTY, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 13 January 1982 at Miami, Florida.

APPEARANCES

For Petitioner: Joel S. Fass, Esquire

626 Northeast 124th Street North Miami, Florida 33161

For Respondent: Anthony Storn, Esquire

8603 South Dixie Highway, Suite 302

Miami, Florida 33143

By Administrative Complaint dated 2 September 1981 the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Thomas R. Greninger as a real estate broker and the corporate broker's license of Cronan Realty, Inc. As grounds therefor it is alleged that Respondent Greninger failed to immediately place, upon receipt, a deposit entrusted to him as broker in escrow; that he prepared a Release of Deposit Receipt for the funds supposed to be held in escrow but which had never been so deposited; and that the buyer, Greninger, took possession of the property from seller before closing; and, when the sale failed to go through and he returned the property to seller, he failed to account for personal property consisting of washing machine, dryer, refrigerators and sliding glass doors, all in violation of Section 475.25(1)(b), (d), and (k), Florida Statutes.

At the hearing the parties stipulated that Respondents are licensed as alleged and were so licensed at all times here relevant, that the $500 check prepared by Greninger was never deposited in escrow, that $1,000 additional deposit was never deposited in escrow, and that the $1,500 shown in the release was never disbursed by Greninger.

Thereafter, two witnesses, including Respondent, were called by Petitioner; seven exhibits were submitted to be marked for identification and, of these exhibits, one and four were never offered into evidence, while the other five were offered and admitted into evidence. Respondent submitted no additional evidence.

Proposed findings submitted by the parties and not included herein were not supported by the evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. Thomas R. Greninger is a registered real estate broker and was registered at all times here relevant. He is the active firm member for Cronan Realty, Inc.

   
   

2. Cronan Realty, Inc., is a registered corporate broker and was so licensed at all times here relevant.

   
   

3. On January 6, 1980, Thomas R. Greninger executed and submitted a Purchase and Sale Contract and Receipt for Deposit (Exhibit 5) to Arcadio Hernandez with Greninger, Trustee, as buyer and Hernandez as seller of property at 15815 Southwest 88th Court, South Miami, Florida. The contract (offer to purchase) provided for $500 initial deposit to be held in escrow by Cronan Realty, Inc., with another deposit of $1,000 within seven days of acceptance of the offer by the seller, and that the seller had until 6:00 p.m. on 7 January 1981 to accept the offer. The contract further provided seller grants buyer occupancy to sell and advertise the property effective 1/9/81.

   
   

4. The offer was handed to Hernandez on the evening of 6 January 1981 to present to his attorney for perusal and Hernandez gave Greninger a key to the residence. At that time Greninger prepared a check payable to Cronan Realty, Inc., in the amount of $500 (Exhibit 6) and delivered it to himself as active firm member for the corporate broker. This check was never deposited in Cronan Realty's escrow account.

   
   

5. The contract further provided buyer shall inspect the property within three days of seller's acceptance of the offer and either accept or reject the property, in writing, within twenty-four hours after said inspection.

   
   

6. Hernandez accepted the offer on 9 January 1981 and returned the contract to Greninger. On or about 9 January 1981 Greninger inspected the property and made a "punch" list of some twenty-nine items that he wanted seller to correct.

   
   

7. Letter of Agreement dated 1-15-81 and executed by Greninger (Exhibit 2) states seller agrees to credit buyer $1,000 from second mortgage balance for the purpose of completing the renovation of the house. This exhibit was not signed by seller.

   
   

8. Sometime thereafter it became apparent that this transaction would not be closed and, on 17 February 1981, a Release of Deposit Receipts (Exhibit 3) was executed by the seller and the buyer. This release provided for the escrow agent to disburse the $1,500 held in escrow to Greninger. Since the initial

   $500 check was never deposited and the additional deposit of $1,000 was never made, no $1,500 was disbursed from Cronan Realty's escrow account.

9. Upon regaining exclusive custody of the residence, the buyer reported to his attorney, who in turn advised Greninger that a washing machine, dryer, two refrigerators and sliding glass doors were missing. Demand for the return of the property or payment therefor was refused by Greninger.

   
   

10. Greninger's testimony that no contract ever existed because his offer was not timely accepted by the seller is contrary to the parties' actions after Hernandez accepted the offer on 9 January 1981. Upon acceptance of the offer by Hernandez, Respondent prepared the "punch" list (Exhibit 7), prepared the Letter of Agreement (Exhibit 2), took possession of the residence and put the property up for sale. By these acts he waived the provision of the offer requiring acceptance by 6:00 p.m. on 7 January 1981.

    
    

11. Hernandez did not appear as a witness. As a result the only evidence respecting the property allegedly removed from the residence while Respondent had a key was the testimony of Hernandez's attorney that Hernandez came into his office "steaming" about the missing property and that when he asked Greninger about the property the latter told him it was a bunch of junk and that he would not replace it or pay for it.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

13. Section 475.25(1), Florida Statutes, provides in pertinent part:

    
    

    The board may. . .suspend a license. . .may revoke a license, may impose an administrative fine. . .or may issue a reprimand if it finds the licensee. . .has:

    (b) Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, coupled with negligence, or breach of trust in any business transaction in this state. . .has violated a duty imposed upon him by law or by the terms of a listing contract. . .

    (d) Failed to account or deliver to any person.

    . .upon demand of the person entitled to such accounting and delivery, any personal property.

    . .which has come into is hands and which is not his property or which he is not in law or equity entitled to retain. . .

    (k) Failed, if a broker, to immediately place, upon receipt, any money, fund, deposit, check, or draft entrusted to him by any person

    dealing with him as a broker in escrow. . . wherein the funds shall be kept until disbursement thereof is properly authorized.

    
    

14. From the evidence submitted there is no competent evidence that Respondent removed the washer, dryer, refrigerators and sliding glass doors from the residence or that he failed to deliver the property to the seller when the sale fell through. The hearsay testimony of Hernandez's attorney was not corroborated by competent evidence.

15. With respect to the escrow account, the evidence is clear and uncontradicted that Respondent Greninger failed to deposit his $500 check into Cronan Realty, Inc.'s escrow account, that he failed to pay the additional

    $1,000 deposit the contract he prepared required him to pay, that he did not advise the seller that this additional deposit had not been made, and that he prepared a false Release of Deposit Receipt which would on its face support Greninger's compliance with the terms of the contract. In so doing Respondent Greninger violated the provisions of Section 475.25(1)(b) and (k) as alleged.

    
    

16. From the foregoing it is concluded that Thomas R. Greninger failed to deposit funds in an escrow account, is guilty of misrepresentation and concealment in the real estate transaction between him and Hernandez, and is not guilty of failure to account for or deliver the equipment alleged to be missing from the residence of Hernandez. Since the corporate broker can operate only through its active firm member, the corporate broker, Cronan Realty, Inc., is likewise guilty. It is, therefore,

RECOMMENDED that the license of Thomas R. Greninger as a real estate broker and Cronan Realty, Inc., as a corporate broker be suspended for a period of sixty (60) days.

ENTERED this 4th day of March, 1982, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1982.

COPIES FURNISHED:

Joel S. Fass, Esquire

626 Northeast 124th Street North Miami, Florida 33161

Anthony Stern, Esquire 8603 South Dixie Highway Suite 302

Miami, Florida 33143

Samuel Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

C. B. Stafford, Executive Director Board of Real Estate

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 81-002399

Orders for Case No: 81-002399