Judges: STEPHEN F. DEAN
Agency: Department of Business and Professional Regulation
Latest Update: Sep. 07, 1982
Summary: Salesperson who transmitted money/messages to broker is not guilty of violation. Broker was aware of refund. Claimant is guilty.
81-2535STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2535
)
VIRGINIA WEICK and DAN )
OLDFATHER, )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard pursuant to notice on February 24, 1982, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The Board of Real Estate alleged that Respondent Virginia Weick was a real estate salesperson who negotiated the lease of a condominium between Joseph Marian and the owner of the condominium, Dr.
Michael Dolchin, and that Weick refused to return a $600 deposit paid by Marian contrary to Section 475.25(1)(d) Florida Statutes (1979), when the transaction failed to close. The Board alleged that Respondent Daniel Oldfather was the corporate broker for Sun Rentals and Management, Inc., employing Weick, and that Oldfather refused to return or account for the $600 deposit to Marian contrary to Section 475.25(1)(d), supra. The Administrative Complaint alleges that Respondents Weick and Oldfather are also guilty of violating Section 475.25(1)(d) Florida Statutes (1979), by failing to advise the Board of Real Estate of a dispute over the $600.
APPEARANCES
For Petitioner: Robert F. Jordan, Esquire
Post Office Box 14723
Fort Lauderdale, Florida 33302
For Respondents: James Curran, Esquire
200 Southeast 6th Street, Suite 301 Fort Lauderdale, Florida 33301
At the close of the Board's case, Respondents' Counsel moved for a finding of fact instanter, that Weick and Oldfather were not guilty as charged because neither were brokers and could not be charged under Section 475.25(1)(d), Florida Statutes (1979), under the facts. This motion was granted as to Weick, and denied as to Oldfather.
The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence or not being a finding of fact.
FINDINGS OF FACT
Virginia Weick is a real estate salesperson holding License number SL 033100 issued by the Board of Real Estate.
At the time in question, Daniel Oldfather was a real estate broker licensed by the Board of Real Estate holding License number 0117082 and active broker for Sun Rentals and Management, Inc.
Weick received $600 from Joseph Marian as a deposit receipt on the lease of a condominium, which she in turn immediately turned over to her broker.
The contract provided specific terms regarding the approval of the tenants by a committee of the condominium board and regarding forfeiture. These provisions are as follows:
In the event described premises is a condominium unit, Lessee agrees to make a sincere application for condo- minium board approval, if required.
Lessee further acknowledges and agrees to abide by all rules and regulations of the condominium and a violation of said rules and regulations is a viola- tion of this Agreement. Screening fees are the responsibility of the Lessee and are non-refundable.
Upon execution of this Agreement by all parties, the Agent in this trans- action shall be empowered to disburse all monies paid to it upon behalf of the Lessor less any agreed upon com- missions for services rendered. In addition thereto, the parties hereby acknowledge that upon execution of this Agreement by all parties, the Agent shall be deemed o have earned all commissions, and the parties fur- ther agree to hold the Agent free and
harmless of any liability for disburse- ments of said monies in accordance
with this Agreement and that Agent is not responsible for dishonored checks in any form. Parties further acknow- ledge and agree that the Agent is not responsible for the enforcement of this Agreement; or the performance of either the Lessor or the Lessee, and the condition of the property is not warranted by the Agent.
Weick set up a meeting for Marian with the condominium board on January 21, 1982, at 3:30 p.m. and advised Marian of the date and time of the meeting several days prior to the meeting.
Marian did not attend the meeting on January 21, although Weick was present at the meeting place and waited for Marian. She returned to the offices of Sun Rentals and Management, Inc., after the time for the appointment had passed. She advised Martin Katz, an officer of the company, that Marian had not shown. Katz advised Oldfather of the fact that Marian had not shown up for the meeting.
Later that same afternoon, Oldfather received a telephone call from a Mr. Pollen, who identified himself as Marian's employer and a real estate broker.
Pollen asked Oldfather what would be the result of Marian's failure to attend the meeting. Oldfather told Pollen that a second appointment could be arranged. Pollen indicated that this was not acceptable and asked what were the alternatives. Oldfather advised Pollen that Marian's failure to attend was a breach of the provisions of the contract for the potential lessee to seek the condominium board's approval, and that it could result in forfeiture of Marian's deposit. Pollen told Oldfather that this would result in legal action against Sun Rentals and Management, Inc. Oldfather advised Pollen to have Marian get in touch with him (Oldfather).
Marian called Weick and requested a refund of his deposit. Weick indicated Marian would have to talk with Oldfather about a refund. Weick had no further contact with Marian.
Weick performed all duties expected of a real estate salesperson as required, delivering the deposit to her broker and forming a conduit for information between Marian and her broker.
Marian attempted to contact Oldfather by telephone and left messages for Oldfather, but he was unable to contact Oldfather. Oldfather attempted to call Marian at his home a day or two after the scheduled meeting. Oldfather did not attempt to call Marian as a result of the attempts by Marian to call him.
Katz communicated to the owner of the condominium very shortly after January 21, 1982, that Marian had not attended the meeting with the condominium board and apparently (based on the Pollen/Oldfather conversation) did not desire to schedule another meeting with the condominium board. The owner made a demand for the $600 deposit.
On January 26, 1982, prior to the next meeting of the condominium board and acting on a joint decision with Oldfather, Katz signed a check for
$300 to the owner of the condominium. On February 3, 1982, Katz wrote a check for $90 to Weick and a check for $210 to Sun Rentals and Management, Inc.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. Chapter 475, Florida Statutes, provides that the Board of Real Estate may discipline its licensees for a violation of Section 475.25, Florida
Statutes. The Administrative Complaint charges the Respondents Weick and Oldfather with violation of Section 475.25(1)(d), Florida Statutes, which provides as follows:
The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding
10 years, may revoke a license, may impose an administrative fine not to exceed $1,000 for each count or sepa- rate offense, or may issue a reprimand, if it finds that the licensee or appli- cant has:
Failed to account or deliver to any person, including a licensee under this chapter, 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, convey- ance, 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 circum- stances. However, if the licensee, in good faith, entertains doubt as to what person is entitled to the accounting and delivery of the escrowed property, or if conflicting demands have been
made upon him for the escrowed property, which property he still maintains in
his escrow or trust account, the licen- see shall promptly notify the board of such doubts and shall promptly:
Request that the board issue an escrow disbursement order determining who is entitled to the escrowed property; or
With the consent of all parties, submit the matter to arbitra- tion; or
By interpleader or otherwise, seek adjudication of the matter by a court.
If the licensee promptly employs one of the escape procedures contained herein, and if he abides by the order or judgement resulting therefrom, no administrative complaint may be filed against the licen- see for failure to account for, deliver, or maintain the escrowed property;
The Respondent Weick moved for a finding instanter at the conclusion of the Board's case that the charges against her were not proven. This motion was granted.
The facts show that Weick received a $600 deposit from Marian and turned the $600 over to her broker as required by law; and when a refund was requested by Marian, Weick referred him to her broker.
A salesperson has no authority to disburse from an escrow account. Weick fulfilled her duty to the client and her broker. Brokers, as the only licensees who can disburse from escrow accounts are also the only licensees who can make an accounting. While a salesperson could be charged under Section 475.25(1)(d) Florida Statutes, for failure to properly act as a conduit for money and information between a client and a broker, the facts do not reveal such a failure by Weick. Weick is not guilty of violating Section 475.25(1)(d), Florida Statutes.
The Respondent Oldfather's similar motion for a finding instanter was denied. Respondent argues that Section 475.25(1)(d), Florida Statutes, is not applicable because Marian never made a demand for return of the deposit to Oldfather, the broker. The Respondent's view is that the demand for a refund must be formal and presented in writing or personally to the broker.
Pollen, Marian's employer, spoke directly with Oldfather concerning the deposit, and Oldfather advised Pollen to have Marian call him. The facts also show that Marian called Weick about a refund, and Weick told Marian he had to talk with Oldfather. Marian attempted to call Oldfather, leaving Oldfather messages to call him.
Although Oldfather stated he was unaware of Marian's attempts to call him, Weick testified it was common knowledge in the office that Marian was calling Oldfather. Oldfather stated he tried to contact Marian on approximately January 22, 1982, but received no answer. Oldfather did not respond to Marian's calls. Given these circumstances, Oldfather cannot raise the defense that he did not receive written or personal demand for the deposit. Marian attempted to comply with Oldfather's directions to Pollen and Weick's directions to him. Oldfather bears an equal responsibility to communicate with Marian.
The facts also show that the funds were disbursed to the owner on January 26, 1982, prior to the next meeting of the condominium screening board and after Oldfather was on notice of Marian's potential claim through Pollen and Marian's call to Weick.
Based upon the foregoing, the fact that the funds were disbursed to the owner, and the fact that Oldfather knew or should have known Marian wanted a refund, Oldfather is guilty of violating Section 475.25(1)(d), Florida Statutes.
RECOMMENDATION
Having found that the Respondent, Virginia Weick, did not violate Section 475.25(1)(d), Florida Statutes, it is recommended that no action be taken against her, and that the Administrative Complaint against her be dismissed.
Having found that the Respondent, Daniel Oldfather, is guilty of violating Section 475.25(1)(d), Florida Statutes, it is recommended that Oldfather's license be suspended for a period of 60 days.
DONE and ORDERED this 4th day of June, 1982, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, 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 June, 1982.
COPIES FURNISHED:
Robert F. Jordan, Esquire Post Office Box 14723
Fort Lauderdale, Florida 33302
James Curran, Esquire
200 Southeast Sixth Street, Suite 301 Fort Lauderdale, Florida 33301
C. B. Stafford, Executive Director Board of Real Estate
400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Samuel Shorstein, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 81-002535
Orders for Case No: 81-002535
| Issue Date |
Document |
Summary |
|
Aug. 18, 1982 |
Agency Final Order
|
|
|
Jun. 04, 1982 |
Recommended Order
|
Salesperson who transmitted money/messages to broker is not guilty of violation. Broker was aware of refund. Claimant is guilty.
|
