STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, FLORIDA REAL )
ESTATE COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2411
) VINCENT TOMASINO, RAY T. KLINE, ) and KRISHNALALL D. PERSAUD, )
)
Respondent. )
) DEPARTMENT OF PROFESSIONAL )
REGULATION, FLORIDA REAL )
ESTATE COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 83-368
)
VINCENT TOMASINO, )
)
Respondent. )
) DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 83-805
) VINCENT TOMASINO, KRISHNALALL )
D. PERSAUD, and RAY T. KLINE, )
)
Respondent. )
) DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 83-785
) VINCENT TOMASINO, KRISHNALALL )
PERSAUD, and RAY T. KLINE, ) Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice a formal hearing was held in this matter before Marvin
Chavis, duly designated hearing officer of the Division of Administrative Hearings on May 2, 1983 in Orlando, Florida.
APPEARANCES
For Petitioner: Tina Hipple, Esquire
Post Office Box 1900 Orlando, Florida 32802
For Respondent Mr. Vincent Tomasino Tomasino: Post Office Box 1307
Casselberry, Florida 32802
For Respondent John T. Carney, Esquire Kline: Post Office Box 538
Kissimmee, Florida 32741
For Respondent Howard A. Speigel, Esquire Persaud: 3319 Maguire Boulevard
Orlando, Florida 32801 ISSUES AND BACKGROUND
This case concerns the issue of whether the real estate licenses of Ray T. Kline, Vincent Tomasino, and Krishnalall D. Persaud should be suspended, revoked or otherwise disciplined for alleged violations of Chapter 475, Florida Statutes, in connection with the marketing and sale of time-share units in Orlando, Florida. This action was originally filed with the Division of Administrative Hearings as a single case which was assigned Case No. 82-2411.
Thereafter, the Petitioner amended its administrative complaint against the three Respondents and three new separate actions were filed against the three Respondents. Case No. 83-368, styled Florida Real Estate Commission vs. Vincent Tomasino, Case No. 83-875, styled Florida Real Estate Commission v. Ray E. Kline, and Case No. 83-805, styled Florida Real Estate Commission vs.
Krishnalall D. Persaud, were consolidated pursuant to motion with Case No. 82- 2411. A consolidated formal hearing was held in these cases and a single Recommended Order will be entered under the consolidated Case No. 82-2411.
At the formal hearing the Petitioner called as witnesses Renata Hedrick, Jimmy D. Holman, Dennis Grage, Ronald N. Weisser, Jack W. Jones, Robert L. Wright, Christopher A. Olson, Benita Drapeau, and presented by deposition the testimony of John Browning and Helen Browning. The Respondent Ray T. Kline testified on his own behalf and also called as a witness the Respondent Vincent Tomasino. The Respondent Krishnalall D. Persaud testified on his own behalf.
The Respondent Vincent Tomasino testified on his own behalf. The Petitioner offered and had admitted twenty-five Exhibits. The Respondent Vincent Tomasino offered and had admitted one Exhibit and the Respondent Kline offered three Exhibits with Exhibits 2 and 3 being admitted and Respondent's Exhibit 1 not being admitted.
Counsel for the Petitioner and each of the Respondents submitted proposed findings of fact and conclusions of law. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings and
conclusions of this Recommended Order, they were considered by the hearing officer and rejected as being not supported by the evidence or unnecessary to the disposition of this cause.
FINDINGS OF FACT
Respondent Ray T. Kline is and at all times material to the charges in this action was a registered real estate broker holding License No. 0048253.
Respondent Vincent Tomasino is and at all times material to the charges in this action was a licensed real estate salesman holding License No. 0353215.
Respondent Krishnalall D. Persaud is and all times material to the charges in this action was a licensed real estate salesman holding License No. 0336161. At the time of the hearing the Respondent Persaud had obtained his broker's license.
In December, 1980, the Respondents Tomasino and Persaud were employed as salesmen, selling time-share units at Vistana Development. During December they discussed and agreed upon a business plan for marketing time-share units. As a part of that plan-they agreed to form Intercontinental Marketing Services, Ltd. (hereafter referred to as IMS) a corporation which would be used to market time-share condominiums and other real estate. Subsequent to that time they did in fact incorporate on May 4, 1981, as a Delaware corporation and formed another Delaware corporation to handle travel and tour business. The incorporators of these corporations were the Respondents Tomasino and Persaud who were also officers and directors of both corporations.
Sometime between December, 1980 and March, 1981 Persuad introduced Respondent Ray Kline to Respondent Tomasino. They discussed Ray Kline becoming the registered broker for IMS. After some discussion, Ray Kline did in fact agree to become the broker for IMS.
On January 19, 1981, Respondent Tomasino and Respondent Persaud opened a general corporate account for IMS at the Atlantic Bank of Orlando. (See Petitioner's Exhibit 6) The account required two signatures for all checks and the two persons allowed to sign were Respondents Tomasino and Persaud. This account was not set up as an escrow or trust account and was not used a's an escrow or trust account during the operating life of IMS. At no time was the Respondent Ray T. Kline a signator on this account.
In early 1931 the Respondents Persaud and Tomasino began negotiating with the Highlands County Title and Guaranty Land Company (hereafter referred to as Highlands County Title) to become its representative in the Orlando area. Highlands County Title is a subsidiary of Sun-N-Lake Estates which is the owner and developer of Lakeside Villas located near Sebring, Florida. A verbal agreement was reached between Highlands County Title and IMS whereby IMS would market time-share units in Lakeside Villas in the Orlando area. This verbal agreement was later reduced to writing. (See Petitioner's Exhibit 11)
On or about March 3, 1981, IMS and Respondent Ray T. Kline entered into a written agreement whereby Ray T. Kline agreed to act as the real estate broker for IMS. (See Respondent Kline's Exhibit 3) Highlands County Title and Sun-N- Lake Estates required a broker be designated for all its sales representatives. Under the written agreement Mr. Kline agreed generally to act as broker and to not interfere with any of the marketing projects of IMS. IMS was to provide Respondent Kline with an office, secretarial assistance, a phone, and real
estate leads acquired through IMS advertising. The contract required Kline to maintain an escrow account for his real estate transactions and to pay twenty- five percent of all commissions earned by him on real estate transactions other than his on personal business. There was no requirement in the contract that Ray T. Kline open or maintain an escrow account for real estate transactions handled by IMS.
On March 3, 1981, Ray T. Kline changed his broker address to 1121 South Cimarron Boulevard, Winter Park, Florida, the offices of IMS. At the time Mr. Kline moved his license to the IMS office he did not register or reflect a trade name under which he was doing business as a broker. On March 5, 1981, Vincent Tomasino and Krishnalall Persaud placed their salesman licenses with Ray T. Kline as an individual broker employer at 1121 Cimarron Boulevard, Winter Park, Florida. IMS was not registered or qualified with the Board of Real Estate or the Department of Professional Regulation by the Respondents.
On March 16, 1981, a written agreement was entered into between IMS and Highlands County Title. The agreement showed Ray T. Kline as broker for IMS and was signed by Vincent Tomasino as director of IMS and Ray T. Kline, Jr. as broker. On March 18, 1981, a supplement to that written agreement was entered into between Ray T. Kline, IMS, and Highlands County Title whereby Highlands County Title agreed to pay advance draws against commissions to IMS. This supplement to the original agreement was signed by Ray T. Kline on behalf of IMS.
Mr. Dennis Grage had met and become acquainted with Vincent Tomasino when Mr. Tomasino was selling time-share units at Vistana. In early March, 1981, Vincent Tomasino contacted Mr. Grage to see if he was interested in purchasing time-share units in Lakeside Villas. Shortly after the initial contact Mr. Tomasino took Mr. Grage's wife, Barbara, together with Richard and Benita Drapeau (Mrs. Grage's sister and her husband) on a tour of Lakeside Villas. After the tour Mr. Tomasino and Mr. Grage met regarding the purchase of a unit in Lakeside Villas. Mr. Grage explained to Mr. Tomasino that he could not afford the $600 down payment. Mr. Tomasino then told Mr. Grage that if he would get the Drapeaus and the Brownings to buy a time-share unit in Lakeside Villas, he would pay $500 of the down-payment on a time-share unit for Mr. Grage.
After the tour Mr. and Mrs. Drapeau decided to buy four time-share units in Lakeside Villas. However, after returning to their home in New Hampshire they decided to buy only two time- share units and so informed Vincent Tomasino. The Drapeaus then sent two deposit checks of $400 each dated March 30, 1981 and April 11, 1981 to Vincent Tomasino. These checks were made payable to Vincent Tomasino pursuant to his instructions. These two checks were deposits on two time-share units at Lakeside Villas. The March 30, 1981 check was deposited in the IMS corporate account on April 7, 1981. The April 11, 1981 check was endorsed by Vincent Tomasino and forwarded to Sun-N-Lake Estates where it was deposited in the Sun-N-Lake Estates attorney's escrow account. The $400 from the March 30, 1981 deposit check was never forwarded by IMS or Vincent Tomasino to Sun-N-Lake Estates.
Pursuant to the agreement with Vincent Tomasino regarding the down payment on a time-share unit, Dennis Grage forwarded a $100 deposit to Mr. Tomasino. The balance of the $600 deposit called for in the contract was to be paid by Vincent Tomasino. Mr. Grage also contacted John and Helen Browning.
In March, 1981, Dennis Grage contacted John and Helen Browning at their home in Michigan. He discussed with them the possibility of purchasing a time-share unit at Lakeside Villas. During this conversation the Brownings authorized Mr. Grage to place a $100 deposit on two units for them. By letter dated March 9, 1981, Vincent Tomasino acknowledged on behalf of IMS the receipt of the deposit placed by Dennis Grage for the Brownings. The Brownings then asked for more information regarding the time- share units and inquired of Mr. Tomasino as to whom the deposit check should be made payable. They were advised by Mr. Tomasino to make the check payable to IMS. On March 20, 1981, the Brownings sent a $1,000 deposit check to Vincent Tomasino payable to IMS. By letter dated March 23, 1981, Vincent Tomasino acknowledged receipt of the $1,000 deposit and also forwarded two time-share purchase agreements to the Brownings for their signatures. Each of the contracts called for a $500 deposit. On April 7, 1981, the Brownings executed the two purchase agreements and returned them to Vincent Tomasino.
The Brownings' $1,000 deposit check was deposited into the IMS corporate account at the Atlantic Bank on or about March 24, 1981. On May 18, 1981, Vincent Tomasino wrote a check to Sun-N-Lake Estates in the amount of
$1,000 for the Brownings' deposit. The check was received and deposited for collection by Sun-N-Lake Estates but before it could be paid Vincent Tomasino placed a stop-payment order on the check. The stop-payment order was placed because there were insufficient funds in the account to cover the $1,000 check. The $1,000 deposit was never forwarded to Sun-N-Lake Estates by IMS for Vincent Tomasino.
In May, 1981, Vincent Tomasino removed Krishnalall Persuad as a signator on the IMS account at the Atlantic Bank. This occurred primarily as a result of a disagreement over a $1,200 deposit made by Mr. Persaud to an account other than the IMS account. Also during May, 1981, Vincent Tomasino changed the locks on the doors at the IMS offices at 1121 South Cimarron Boulevard, Winter Park, Florida, and did not give Mr. Persaud a key. Prior to May, 1981, the checking account at Atlantic Bank had been controlled by both Mr. Persaud and Mr. Tomasino. From January to May, 1981, checks written on the IMS account were signed and approved by both Tomasino and Persaud. Respondent Persaud knew or reasonably should have known that money being received from purchasers was being deposited in the corporate account. After May, 1981, only Vincent Tomasino signed checks on the IMS account. In June, 1981, the relationship between Mr. Persuad and Mr. Tomasino terminated. Also in June, 1981, the IMS account became overdrawn and in August, 1981, the Atlantic Bank closed the account. Between January and June, 1981, Vincent Tomasino received approximately $7,000 in draws from IMS and Mr. Persaud received approximately $4,900 in draws from IMS. Ray
T. Kline received no funds from IMS. When interviewed by a DPR investigator Mr. Persaud denied having received any funds from IMS during its operation.
Between January and June, 1981, Vincent Tomasino was the person in charge of the IMS finances. Ray Kline had no control over and did not participate in the finances of IMS. The bookkeeping was done by the office manager and the checkbook was kept by Mr. Tomasino. During this period salesmen were hired and supervised by Tomasino and Persaud, but were not supervised by Respondent Kline. IMS also purchased a tour bus during this period which was used by Mr. Persaud to take potential buyers on tours of Lakeside Villas. Once these tours began, Mr. Persaud was in the office less than he had been the first couple of months of operation. Once there were no more funds in the corporate account the Respondent Tomasino essentially walked away
from the corporation and paid only a few small debts.
By letter dated June 23, 1981, Vincent Tomasino notified Sun-N-Lake Estates that IMS would no longer sell time- share units at Lakeside Villas. In November, 1981, the relationship between IMS and Sun-N-Lake Estates was formally terminated. Prior to termination, IMS had received advances of $9,000 in excess of commissions due and earned and no reimbursement of those excess funds has been made to Sun-N-Lake Estates.
In approximately September, 1981, the Drapeaus as a result of financial problems sent a letter to Sun-N-Lake Estates requesting a refund of their $800 deposit. Sun-N-Lake Estates refunded the $400 which was in escrow and informed the Drapeaus that Sun-N-Lake Estates had never received the other
$400 deposit. Robert Wright of Sun-N-Lake Estates was contacted by the Drapeaus. He then contacted Vincent Tomasino who told him that he would speak with Ray Kline and Krishnalall Persaud about the Drapeau problem. Mr. Wright was never contacted again by Mr. Tomasino. Dennis Grage, after learning that the Drapeau's $400 deposit had not been placed in escrow also contacted Vincent Tomasino. He demanded the return of the $400 deposit and Mr. Tomasino stated that someone had run off with the money and that he was trying to get it back. After several unsuccessful contacts with Mr. Tomasino, Mr. Grage contacted Ray Kline. Mr. Kline said he was checking on the problem, but at the time of the formal hearing the Drapeau deposit had not been refunded.
Dennis Grage also informed the Brownings of the problems the Drapeaus were encountering. The Brownings then contacted Sun-N-Lake Estates and spoke with Robert Wright who informed them that Sun-N-Lake Estates had never received their $1,000 deposit. Mr. Tomasino informed him that IMS was bankrupt and had no money and that it wasn't his problem. Mr. Browning then contacted Ray Kline who denied any personal responsibility and stated that Tomasino had taken the money and was responsible for its return. Mr. Browning then made demand upon Krishnalall Persaud for the $1,000 deposit and Mr. Persaud denied being an officer or director of IMS and also stated that he had no responsibility to the Brownings. During August and September, 1981, Robert Wright repeatedly discussed the Drapeau and Browning deposits with Respondents Persaud and Kline. On each occasion they denied any responsibility for those deposits.
Until contacted by the Brownings and Drapeaus, Ray Kline and Krishnalall Persaud had no knowledge of the deposits of these people and how they were being received. Ray Kline, after being contacted was aware that these deposits were funds that should have been placed in escrow upon receipt by IMS and Tomasino. Neither Tomasino, Kline, nor Persaud attempted to provide an accounting to the Drapeaus or Brownings and the Respondents made no attempt to return their deposits.
For at least a two week period in the Spring of 1981, Ray Kline also opened and operated a branch office for IMS at a condominium development. At no time was this branch office registered as required by statute.
From the beginning of the relationship between Ray Kline and IMS, by agreement, Kline's involvement was to be very limited. Kline never opened an escrow account for IMS and did not supervise the sales personnel. Ray Kline had little or no involvement in the day-to-day operation of IMS. At no time was IMS registered with the Florida Real Estate Commission or the Department of Professional Regulation. At some point in time in the Spring of 1981, the Respondents discussed opening an escrow account but decided to not open such an account until they had earned commissions.
From January through May, 1981, Respondents Tomasino and Persuad hired and supervised salesmen and controlled the operations of IMS.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action.
Pursuant to Section 475.25, Florida Statutes (1981), the Florida Real Estate Commission is empowered to discipline licensed real estate brokers and salesmen for those violations set forth in Section 475.25.
Each of the Respondents is charged with violating Rule 21V-5.19, Florida Administrative Code, and thus 475.25(1)(.b) , Florida Statutes. The rule provides in relevant part:
It shall be the duty of every active corporate officer and director to see that the corporation and each of its officers and directors and salesmen are holders of the appropriate current
registration and licenses. Rule 21V-5.19, F.A.C.
This rule was promulgated pursuant to Chapter 475, Florida Statutes, and a violation of this rule constitutes a violation of Section 475.25(1)(e)(.1981) which provides as a grounds for discipline the violation "any lawful order or rule made or issued" under Chapter 475, Florida Statutes. The Respondents operated the business of selling time-share units through the corporate entity Intercontinental Marketing Services, Ltd. Sales were procured and deposit funds were received in the name of the corporate entity. The corporation was required to be registered with the Florida Real Estate Commission and it was the duty of each of the Respondents, Tomasino and Persaud, as officers and directors of the corporation to see that the corporation was properly registered. Having failed to do so the Respondents, Persuad and Tomasino, are guilty of violating Rule
21V-5.19, Florida Administrative Code, and thus Section 475.25(1)(e), Florida Statutes, as alleged in Count One of the Drapeau and Browning Complaints. 1/
Under Count One of the Browning and Drapeau Complaints, Respondent Kline was also charged with a violation of Rule 21V-5.19, Florida Administrative Code. The only reference in that rule to the duty of a broker provides:
It shall be the duty of every active broker member of a partnership to see
that each member of a partnership required to hold registration and license does in fact hold the appropriate registration and license.
Kline was not an officer or director of IMS and therefore had no duty to insure it was properly registered under the first sentence of this rule discussed in paragraph 3 above. It was not established that Kline was part of a partnership relationship with either IMS or Persaud and Kline and therefore there was no duty on Kline to insure the registration of IMS was proper as a member of a partnership. Persaud and Kline were salesmen operating under Kline, as brokers, and were therefore not part of a partnership with Kline. The evidence therefore
failed to establish a violation of Rule 21V-5.19, Florida Administrative Code, by Respondent Kline.
Each of the Respondents is charged with having violated Section 475.25(1)(b)(1981), by falsely representing in the contract with Highlands County Title that IMS was properly registered and licensed. This contract was signed by Respondents Tomasino and Kline on March 11, 1981, and that contract covenanted in relevant part as follows:
7. REPRESENTATIVE'S COVENANTS. During the entire term of this Agreement, representative agrees and covenants:
(e) That it is duly licensed and qualified and its sales force handling company property are fully licensed and qualified to sell lots, houses and condominiums under the terms of this franchise within those areas it has been designated a franchise agent by the company, and that it will maintain such licenses and qualification for itself and its salesmen while this franchise is in effect.
False promises in a contract involving real estate business transactions can constitute a violation of Section 475.25(1)(b)(1981). See Astore v. Florida Real Estate Commission, 374 So.2d 40 (Fla. 3d DCA 1979). In order to establish a violation of Section 475.25 (1)(b) the Commission must prove that the individual charged had the requisite scienter or knowledge at the time the violation occurred. Astore v. Florida Real Estate Commission, supra. In order to be guilty of "false promises the party charged must be shown to have knowledge of the falsity of the promise made.
The facts reveal in the instant case that Vincent Tomasino, one of the officers and directors of IMS, knew at the time that he signed the contract that IMS had not been incorporated and was not registered with the Florida Real Estate Commission. The corporation was not even chartered by the State of Delaware until May 4, 1981. There was no evidence that Respondent Persaud, who did not sign the contract with Highland County Title, knew or was aware of the covenant contained in the contract. The evidence established that Respondent Kline had no knowledge of whether IMS had been properly registered. The evidence therefore establishes a violation of Florida Statute 475.25(1)(b)(1981) by Respondent Tomasino as alleged in Count Two of the Browning and Drapeau Complaints. However, no such violation on the part of Respondents Kline and Persaud was established.
Count Three of the Drapeau Complaint charges Respondents Persaud and Tomasino with a violation of Section 475.42(1)(d) and thus Section 475.25(1)(a), Florida Statutes (1981). Section 475.42(1)(d) provides:
No salesman shall collect any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental
or otherwise, except in the name of the employer and with the express consent of the employer; and no real estate salesman, whether holder of a valid and current license or not, shall commence or maintain
any action for a commission or compensation in connection with a real estate brokerage transaction against any person except a person registered as his employer at the time the cause of action is alleged to have arisen.
Section 475.25(1)(a), Florida Statutes (1981), makes any violation of Section
475.42 a grounds for discipline under Section 475.25.
In the instant case Respondent Tomasino accepted a $400 earnest money deposit from Richard W. Drapeau and his wife Benita J. Drapeau for the purchase of a time-share unit at Lakeside Villas. At the time that Tomasino accepted the
$400 deposit, he accepted the payment in his own name rather than the name of his registered employing broker, Ray T. Kline. These acts constitute a violation of Section 475.42(1)(.d) and 475.25(1)(a), Florida Statutes (1981), as alleged in Count Three of the Drapeau Complaint. Because Respondent Persaud had no knowledge of the transaction at the time the money was accepted and was not involved in any way in instructing the Drapeaus as to how to make payment or in accepting the deposit, he cannot be found guilty of the violation charged in Count Three of the Drapeau Complaint.
Count Three of the Browning Complaint charges Respondents Tomasino and Persaud with collecting money from John D. and Helen G. Browning in connection with a real estate transaction in the name of an entity other than their registered employer, Ray T. Kline, in violation of Sections 475.42(1)(d) and 475.25(1)(a), Florida Statutes (1981). The direct dealings with the Brownings initially were handled solely by Respondent Tomasino. Respondent Persaud was not aware of that specific transaction until he was contacted about the return of the Brownings' $1,000 deposit on two time-share units and pursuant to his instructions made the check payable to Intercontinental Marketing Services, Ltd. At the time Mr. Tomasino accepted this deposit, his registered employer was Ray
T. Kline. Mr. Tomasino is therefore guilty of the violation of Sections 475.42(1)(d) and 475.25(1)(a), Florida Statutes (1981),as charged in Count Three of the Browning Complaint. The evidence failed to establish a violation under this count against Respondent Persaud.
Count Four of the Drapeau and Browning Complaints charge Respondents Tomasino and Persaud with failing to turn over to their registered employer the deposits received from the Drapeaus and Brownings. They are charged with violating Section 475.25(1)(k), Florida Statutes (1981), which provides as a grounds for discipline:
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 with a title company, banking institution, or savings and loan association located and
doing business in Florida, or to deposit such funds in a trust or escrow account maintained by him with some bank or savings and loan association located and doing business in Florida, wherein the funds shall be kept until disbursement thereof
is properly authorized; or failed, if a
salesman, to immediately place with his registered employer any money, fund, deposit, check, or draft entrusted to him by any person dealing with him as agent of his registered employer. The board shall establish rules and regulations
to provide for records to be maintained by the broker and the manner in which such deposits shall be made.
The facts establish that Respondent Tomasino received these deposits and deposited them into the IMS corporate account. The funds were never turned over to the registered employer, Mr. Ray T. Kline. There was no evidence that Mr. Persaud was aware of these specific deposits or had control of them enabling him to turn them over to Ray Kline prior to their being deposited in the IMS account. The facts, therefore, establish a violation by Respondent Tomasino of Section 475.25(4)(k), Florida Statutes (1981), as alleged in Count Four of the Drapeau and Browning Complaints. No such violation was proven against Respondent Persuad.
Count Five of the Drapeau and Browning Complaints charges each of the Respondents with a violation of Section 475.25(1)(d) which provides:
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, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, 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 circumstances.
The evidence established that in August and September, 1981, demand was made upon each of the Respondents for return of the Drapeau and Browning deposits. At that time each of the three Respondents was aware that these deposits had not been placed in escrow as required by law and had actually been expended for either draws by Tomasino and Persaud or for other IMS corporate expenses. None of the Respondents gave an accounting of the deposits to the Drapeaus or Brownings and no attempt was made by the Respondents to return the deposits to which they were clearly entitled. It is concluded that Ray T. Kline, as broker, Vincent Tomasino, as the salesman directly involved and as an officer and director of IMS, and K. Persaud, as an officer and director of IMS, each had a duty to account for the funds received from the Drapeaus and the Brownings. They each had a duty to deliver or to make certain that one of them delivered to these buyers the funds to which they were entitled. Ray T. Kline as broker had a duty to open and control an escrow account for his salesmen. This he did not do. Respondents Persaud and Tomasino both controlled the corporate account into which these funds were deposited and had, along with
Respondent Kline, made a prior conscious decision not to open an escrow account.
K. Persaud did not personally receive the funds, but he knew or reasonably should have known that earnest money deposits were being deposited into the corporate account over which he shared control. He along with Tomasino signed and approved checks expending these funds. Under these facts each of the Respondents violated Section 475.25(1)(d), Florida Statutes (1981), as alleged in Count Five of both the Drapeau and Browning Complaints.
Count Six of the Drapeau and Browning Complaints is duplicitous of the remaining seven counts and therefore no specific violation is found under Count Six.
Count Six of the Drapeau and Browning Complaints charges the Respondents Persaud and Tomasino with operating as brokers without a license or operating as a salesman for a person not registered as his employer in violation of Section 475.42(1)(b) which provides:
No person licensed as a salesman shall operate as a broker or operate as a salesman for any person not registered as his employer.
A violation of Section 475.42 (1)(b) is a violation of Section 475.25(1)(a), Florida Statutes (1981).
The evidence clearly establishes that Respondents Persaud and Tomasino operated as a broker without being so licensed. The argument between Persaud, Tomasino and Kline shows a intent on the part of all three Respondents that Kline was to perform only a very limited function. The funds and corporate account were controlled by Persuad and Tomasino. Salesmen were hired, trained and supervised by Persaud and Tomasino. Essentially, Persaud and Tomasino borrowed Kline's broker's license in order to operate their real estate business. From the very beginning the Respondents intended that Tomasino and Persaud would assume those responsibilities placed upon the broker by law. Respondents Persaud and Tomasino then are guilty of violating Sections 475.42(1)(b) and 475.25(1)(a), Florida Statutes, as alleged in Count Seven of the Drapeau and Browning Complaints.
Count Eight of the Drapeau and Browning Complaints charges Respondent Ray T. Kline with a violation of Section 475.25(1)(b), Florida Statutes (1981), by failing to properly supervise Persaud and Tomasino. The evidence clearly establishes that Kline intentionally failed to supervise and control Tomasino and Persaud. He agreed with them after a discussion regarding escrow accounts to delay setting up an escrow account until such time as commissions were earned. He agreed not to interfere in the finances of IMS even though it was his duty as broker to insure that escrow or entrusted funds were being properly handled by his salesmen. Had he properly performed his statutory duty as broker, the earnest money deposits of the Drapeaus and Brownings would have been properly accounted for and returned upon demand. These facts constitute a violation by Respondent Kline of Section 475.25(1)(b), Florida Statutes (1981), as alleged in Count Eight of the Drapeau and Browning Complaints.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the license of Vincent Tomasino be revoked and that an administrative fine of five hundred dollars ($500) be imposed upon him;
That the license of Ray T. Kline be suspended for a period of two (2) years and an administrative fine of one thousand dollars ($1,000) be imposed upon him; and
That the license of Krishnalall Persaud be suspended for a period of two (2) years and an administrative fine of five hundred dollars ($500) be imposed upon him.
It is further RECOMMENDED that upon a showing by the Respondents to the Commission prior to entry of the final order that restitution has been made to Mr. and Mrs. Drapeau and Mr. and Mrs. Browning, the fines of Respondents Tomasino, Kline and Persaud be reduced to two hundred fifty dollars ($250), five hundred dollars ($500), and two hundred fifty dollars ($250), respectively.
DONE and ENTERED this 22nd day of September, 1983, in Tallahassee, Florida.
MARVIN E. CHAVIS, 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 22nd day of September, 1983.
ENDNOTE
1/ The Petitioner proceeded to hearing on two separate First Amended Administrative Complaints. The First Amended Complaint in Case No. 82-2411 contains allegations relating to earnest money deposits received from Mr. and Mrs. Browning and will therefore be referred to as the Browning Complaint. The First Amended Administrative Complaint in Case Nos. 83-368, 83-805, and 83-875 will be referred to as the Drapeau Complaint.
COPIES FURNISHED:
Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802
Vincent Tomasino Post Office Box 1307
Casselberry, Florida 32802
John T. Carney, Esquire Post Office Box 538 Kissimmee, Florida 32741
Howard A. Speigel, Esquire 3319 Maguire Boulevard
Orlando, Florida 32801
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION
DEPARTMENT OF PROFESSIONAL
REGULATION, FLORIDA REAL ESTATE CASE NOS. 0020624 COMMISSION, 0020625
0020626
Petitioner, 0023327
0031701
vs. 0031702
VINCENT TOMASINO, DOAH NOS. 82-2411 RAY T. KLINE, 83-368
KRISHNALALL D. PERSUAD, 83-805
83-875
Respondents.
/
FINAL ORDER
The Florida Real Estate Commission heard this case on October 18, 1983 to issue a Final Order.
Hearing Officer Marvin E. Chavis of the Division of Administrative Hearings presided over a formal hearing on May 2, 1983. On September 22, 1983, he issued a Recommended Order which is adopted by the Florida Real Estate Commission as to all Issues and Background, Findings of Fact and Conclusions of Law. However, as to the Recommendation, the Florida Real Estate Commission rejects the Hearing Officer's Recommendation. A copy of this Recommended Order is attached hereto as Exhibit A and made a part thereof.
Upon a complete review of the record the Florida Real Estate Commission ORDERS:
That the license of Respondent Vincent Tomasino be revoked and that he pay a $1000 administrative fine to the Department of Professional Regulation on or before the effective date of this Order.
That the license of Respondent Ray T. Kline be suspended for two years, said suspension to begin on the effective date of this Order; and that he pay a
$1000 administrative fine to the Department of Professional Regulation within 90 days of the effective date of this Order. However, said fine and suspension will be reduced in half, if he makes full restitution in the amount of $1090.55 to John and Helen Browning within 90 days of the effective date of this Order.
Respondent Kline may not resume real estate activities until his petition for reinstatement is approved by the Florida Real Estate Commission.
That the license of Respondent Krishnalall D. Persuad be suspended for two, years, said suspension to begin on the effective date of this Order; and that he pay a $500 administrative fine to the Department of Professional Regulation within 90 days of the effective date of this Order. However, said fine and suspension will be reduced in half, if he makes full restitution in the amount of $400 to Richard and Benita Drapeau within 90 days of the effective date of this Order. Respondent Persuad may not resume real estate activities until his petition for reinstatement is approved by the Florida Real Estate Commission.
This Order shall be effective thirty (30) days from the date of filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 18th day of October 1983 in Orlando, Florida.
Brian J. Ladell, Chairman Florida Real Estate Commission
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by
U.S. Mail to: Vincent Tomasino, P. O. Box 1307, Casselberry, Florida 32802; to John Carney, Esquire, P. O. Box 538, Kissimmee, Florida 32741; and to Howard Speigel, Esquire, 3319 Maguire Blvd., Orlando, Florida 32801; to Hearing Officer Marvin Chavis, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to Staff Attorney Tina Hipple, Dept. of Professional Regulation, P. O. Box 1900, Orlando, Florida 32802, this 28th day of October, 1983.
Harold R. Huff, Director
| Issue Date | Proceedings |
|---|---|
| Oct. 31, 1983 | Final Order filed. |
| Sep. 23, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 18, 1983 | Agency Final Order | |
| Sep. 23, 1983 | Recommended Order | Respondents charged with multiple statutory violations. Recommend restitution/revocation or suspension of licenses and fines. |
FLORIDA REAL ESTATE COMMISSION vs. RICHARD C. LIGHTNER, III, 82-002411 (1982)
DIVISION OF REAL ESTATE vs. ALBERT R. HURLBERT, T/A HURLBERT REALTY, 82-002411 (1982)
DIVISION OF REAL ESTATE vs. ALFORD R. LYDON, 82-002411 (1982)
DIVISION OF REAL ESTATE vs BERNARD L. COVINGTON, 82-002411 (1982)
DIVISION OF REAL ESTATE vs. JOHN M. STROUD, 82-002411 (1982)
