STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2537

)

MILTON I. MARKOWITZ, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Lauderdale, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, on May 13, 1982.

APPEARANCES

For Petitioner: Joel S. Fass, Esquire

626 Northeast 124th Street North Miami, Florida 33161

For Respondent: Sheldon R. Rosenthal, Esquire

25 West Flagler Street, Suite 721 Miami, Florida 33130

By Administrative Complaint dated September 2, 1981, Petitioner, Department of Professional Regulation, Board of Real Estate (now Florida Real Estate Commission) ("Petitioner") alleged that Respondent, Milton I. Markowitz ("Respondent"), while a licensed real estate broker in the State of Florida, did fail to immediately place a $10,000 deposit check in a solvent bank, savings and loan association, or trust or title company having trust powers. The Administrative Complaint further alleges that the Respondent was guilty of a course of conduct, including fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach off trust in a business transaction by failing to deposit that $10,000 earnest money check into his escrow account and by returning the check to the purchaser knowing that the seller's attorney was making demand for the deposit money pursuant to a contract.

Final hearing in this cause was scheduled for May 13, 1982, by Notice of Hearing dated April 5, 1982. At the final hearing, Petitioner called Milton Markowitz, Jack Arias, and Thomas R. Greninger as its witnesses. Petitioner offered Petitioner's Exhibits 1 through 10, which were received into evidence. Respondent called no witnesses, abut offered Respondent's Exhibits 1 and 2, which were received into evidence. In addition, the prehearing stipulation entered into between the parties to this proceeding was received into evidence as Hearing Officer's Exhibit 1.

Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Milton I. Markowitz, was a licensed real estate broker doing business in the State of Florida. Respondent acted as the individual broker for Ford Realty, Inc. At some time, apparently in 1979, Respondent and Jack Arias discussed the possibility of forming a corporation to be known as Miltjack Investments, Inc., for the purpose of acquiring a piece of property (the property) in Pompano Beach, Florida, owned by Richard F. Brohamer.

   
   

2. By Deposit Receipt dated December 10, 1979, an offer to purchase the property was submitted by Miltjack Investments, Inc. to the seller through Cronan Realty, another real estate broker. Respondent signed the Deposit Receipt as president of Miltjack Investments, Inc. The Deposit Receipt, by its terms, indicated that the sum of $10,000 had been placed in escrow with Ford Realty, Inc. as a deposit on the purchase price of $567,000.

   
   

3. In fact, Respondent knew when he signed the Deposit Receipt and forwarded it to the seller that Miltjack Investments, Inc. was a non-existent corporation. In addition, Respondent also knew that he had been given a $10,000 check by Jack Arias, his coinvestor, with the knowledge that the check could not be covered by sufficient funds, and that it would not be placed in escrow by Ford Realty, Inc. At no time during the negotiations involved in this proceeding did Respondent ever communicate to the seller, or Cronan Realty, that the $10,000 deposit was not being held in escrow or that Miltjack Investments, Inc. was not an existing corporation.

   
   

4. After the aforementioned Deposit Receipt was forwarded to the seller, the seller made a counter offer by Deposit Receipt Contract dated January 11, 1980. This instrument contained several changes, but was, in fact, at some point signed on behalf of Miltjack Investments, Inc. by Jack Arias, as

   secretary-treasurer, and Mr. Arias' signature was witnessed by Respondent. Like the initial Deposit Receipt, this latter agreement also recited that the $10,000 deposit was in escrow with Ford Realty, Inc. Unlike the initial agreement, however, the agreement of January 11, 1980, indicated that Cronan Realty, Inc. was to act as escrow agent. Pursuant to this agreement, Cronan Realty, Inc. made demand upon Ford Realty, Inc. for the $10,000 deposit, so that it could fulfill its obligation under the last mentioned agreement. Upon receipt of this demand, Jack Arias made demand upon Respondent to return the $10,000 check to him, which Respondent did, and apparently Mr. Arias destroyed the check some time thereafter.

   
   

5. For reasons not clear from the record in this cause, the transaction involving the sale of the property never closed.

   
   

   CONCLUSIONS OF LAW

   
   

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

7. Section 475.25(1), Florida Statutes, provides that a broker's license may be suspended or revoked, or an administrative fine imposed not to exceed

   $1,000, upon a finding that a licensee has:

   
   

   (b) Been 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. . .; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and has committed an overt act in furtherance of such intent, design, or scheme. It shall be immaterial to the guilt of the licensee that the victim, or intended victim, of the misconduct has sustained no damage or loss; that the damage

   or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee, or was an identified member of the general public. . .

   
   

8. Rule 21V-14.10, Florida Administrative Code, provides as follows:

   
   

   Every licensed real estate broker who shall receive from his salesman, principal, prospect, or other person interested in any real estate transaction, any deposit, fund, money, check, draft, personal property, or item of value shall immediately place the same in a solvent bank savings and loan association, or trust company, or title company having trust powers, in an escrow or trust account. . .

   
   

9. Based upon the foregoing Findings of Fact and Conclusions of Law, it is found, as a matter of law, that Respondent has violated the aforementioned provisions of Section 475.25, Florida Statutes, and Rule 21V-14.10, Florida Administrative Code. It is accordingly,

RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding the Respondent guilty of violating the aforementioned provisions, suspending his broker's license for a period of four (4) months, and imposing an administrative fine of $1,000.

DONE and ENTERED this 29th day of October, 1982, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

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 29th day of October, 1982.

COPIES FURNISHED:

Joel S. Fass, Esquire

626 North East 124th Street North Miami, Florida 33161

Sheldon R. Rosenthal, Esquire

25 West Flagler Street (Suite 721) Miami, Florida 33130

William M. Furlow, Esquire Florida Real Estate Commission Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002537

Orders for Case No: 81-002537