STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2640

)

AMY OSTRAU, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Fort Lauderdale, Florida on February 18, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

2715 East Oakland Park Boulevard, Suite 101 Fort Lauderdale, Florida 33307

For Respondent: Michael Rifkin, Esquire

OSTHAU & RIFKIN

8751 West Broward Boulevard, Suite 302

Plantation, Florida 33324 ISSUE PRESENTED

Whether Respondent's license as a real estate salesman should be suspended, revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, Florida Statutes, pursuant to the Administrative Complaint dated September 15, 1981.

The complaint herein seeks to discipline Respondent for failure to place a

$500.00 deposit check in her broker's escrow account in violation of Subsection 475.25(1)(k), Florida Statutes. The complaint further alleges that the Respondent was asked by the buyer to hold the deposit check until the contract was accepted and signed by the sellers, therefore constituting a violating of Subsection 475.25(1)(b), Florida Statutes. However, Petitioner dismissed this count at the hearing.

At the commencement of the hearing, the parties agreed that the case should be determined based upon the facts alleged in the Administrative Complaint, as modified by the Respondent's response to Petitioner's request for admissions.

No witnesses testified at the hearing, and only one exhibit -- the contract in question -- was admitted in evidence.

FINDINGS OF FACT

1. Respondent Amy Ostrau is a registered real estate salesman having been issued License No. 0144468 by the Board of Real Estate. The last known address of the Respondent is c/o Ann Ford, Inc., 7370 Northwest 5th Street, Ft. Lauderdale, Florida 33317.

   
   

2. The Respondent, at all material times alleged herein, was a registered real estate salesman employed by Ann Ford Realty, Inc.

   
   

3. On or about March 29, 1980, Respondent obtained a written deposit receipt and contract for sale and purchase from a prospective purchaser, H. Steven Hill. The contract indicated that the selling broker Ann Ford, Inc., broker, held an initial deposit of $500.00. (Respondent's Exhibit 1)

   
   

4. The $500.00 deposit check was received by Respondent from a friend of Hill because Hill did not have a check available at that time. Respondent placed the deposit check in her office file and it remained there until Friday, April 11, 1980 when a second deposit check, in the amount of $17,750.00, was presented by the buyer. At this time, the first deposit check was returned to Hill by the Respondent.

   
   

5. Respondent presented the second deposit check to her broker and it was then deposited by mail into the broker's escrow account on April 15, 1980. The check evidently was credited to the broker's account on April 15, 1980. (The response to request for admissions refers to the pertinent month as August, which is obviously in error.)

   
   

6. On or about April 17, 1980, and as a result of a request by Hill, a building inspection was conducted on the house. The inspection disclosed several deficiencies in the house and the estimated repair cost for the deficiencies exceeded the amount specified in the contract for repairs.

   
   

7. Payment of the second deposit check in the amount of $17,750.00 was stopped on April 21, 1980 by Hill, and, as a result, there was no earnest money deposit remaining in the escrow account.

   
   

8. Respondent's husband, an attorney, Norman M. Ostrau, represented the purchaser, H. Steven Hill, in the transaction. Respondent was asked by Hill to hold the $500.00 earnest money deposit check until the contract was accepted and signed by the sellers. Pursuant to these instructions, Respondent failed to turn over the deposit check to her employer immediately upon receipt of the same.

   
   

9. A civil action for damages is pending in the Broward County Circuit Court brought on behalf of the sellers of the property against the buyer and broker, with counterclaim by the buyer. (Respondent's Exhibit 2)

   
   

   CONCLUSIONS OF LAW

   
   

10. Respondent concedes that she failed to turn over the $500.00 deposit check to her broker, and that it was returned to the prospective purchaser when he delivered a check for $17,750.00 some two weeks later.

    
    

11. Respondent agrees that her actions in the above respect constituted a violation of Subsection 475.25(1)(k), Florida Statutes. The only remaining question to be determined is an appropriate penalty for her admitted violation.

12. Although Respondent's action in retaining the deposit check was apparently done as an accommodation to the purchaser upon the expectation that the subsequent check would be substituted therefor, the fact remains that the

$500.00 deposit then became unavailable for forfeiture in the event of an unjustified failure of the buyer to perform the contract. It is therefore considered that a suspension of her license for a period of thirty (30) days is appropriate under the circumstances.

RECOMMENDATION

That the Board of Real Estate suspend the license of Respondent, Amy Ostrau, for a period of thirty (30) days pursuant to Subsection 475.25(1)(k), Florida Statutes.

DONE and ENTERED this 4th day of March, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

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:

Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard, Suite 101

Fort Lauderdale, Florida 33307

Michael Rifkin, Esquire OSTRAU & RIFKIN

8751 West Broward Blvd. Suite 302

Plantation, Florida 33324

Mr. C. B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801

Frederick H. Wilsen, Esquire Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002640

Orders for Case No: 81-002640