Arndt, and Paul T. Turscak, and Petitioner's Exhibits 1 through 4.
At all times pertinent to this matter, Margaret C. McBride was a licensed real estate salesman in Florida holding salesman's license numbered 0056930, which expired on September 30, 1982, and has not been renewed.
On June 15, 1982, W. T. and Agnes Wilson entered into a contract with Presidential Homes, through McBride Real Estate, Inc., for the construction of a home in Martin County, Florida, for the total purchase price of $65,610. The contract called for a down payment of 10 percent to start construction and subsequent periodic payments of 10 percent or 20 percent at set stages during construction of the home as called for in the contract.
The Wilsons, who were residents of the Jersey Islands in the United Kingdom, had arranged with the Florida National Bank, Stuart, Florida, for a total of $75,000 to be paid out of their account, in periodic partial payments, on schedule directed by letter of June 21, 1982, to the McBride Real Estate, Inc., Escrow Account, from which payments could be made to Presidential Homes, Inc., in accordance with the contract provisions.
The initial payment of 10 percent ($6,561) was made by the Wilsons on June 16, 1982. Thereafter, an additional $13,122 was paid to the McBride Real Estate, Inc., Escrow Account on July 13, 1982, and a second payment in the same amount was to be paid into that escrow account on July 20, 1982.
Marie A. McBride, an authorized signatory on the McBride Real Estate, Inc., Escrow Account and Respondent's mother-in-law, on July 7, 1982, drew a check for $6,561 on that account, payable to Presidential Homes, Inc., for "Wilson," which check was subsequently endorsed by Respondent, Margaret McBride, who identified herself in the endorsement as vice president and treasurer of Presidential Homes, Inc. This second payment to Presidential Homes, Inc., according to the contract, was not due until the footings, foundation, and floor slab were complete. At no time did Presidential Homes, Inc., do more on the Wilson home than clear the land. No payment beyond the initial down payment was ever earned under the contract.
Respondent, Margaret C. McBride, was also listed as an authorized signature on the McBride Real Estate, Inc., Escrow Account at the Florida National Bank of Martin County. On July 30, 1982, along with Henry V. McBride, her husband, she drew two checks, numbers 158 and 159, to cash, in the amounts of $4,400 and $5,000, respectively, on the escrow account and, also with Henry
V. McBride, endorsed both and presented them for payment. Check numbered 159 reflects it was for the "Witte draw."
Grant J. Bartels, an investigator for the Florida Real Estate Commission (FREC), received a call from Mrs. Wilson on August 4, 1982, complaining of unauthorized draws for construction on their house which was not accomplished. When he thereafter went to the offices of McBride Real Estate, Inc., to initiate his investigation, he found that all records on some 110 contracts procured by that company for Presidential Homes, Inc., were missing, as were Respondent, Margaret C. McBride, and her husband, Henry V. McBride.
Investigation revealed that these 110 contracts represented approximately $500,000 in payments paid out of the escrow account and, of the 110, work was started on only 11 homes. A total of 20 construction permits had been pulled for all the contracts. All of the 11 homes started were heavily encumbered by unsatisfied mechanics' and materialmen's liens.
President of record of Presidential Homes, Inc., was John Gideon, a contractor who ran the construction aspect of the company. Respondent was vice president and treasurer, but Henry V. McBride basically directed operations.
According to Raymond P. Arndt, who worked for McBride Real Estate, Inc., during the period in question, Respondent started out working with the real estate company as Henry V. McBride's secretary, but then became the vice president of Presidential Homes. As a part of her job, Respondent handled the mortgage applications for clients of Presidential Homes, Inc., and Mr. Arndt would deal with her on an almost daily basis. Though Mrs. McBride worked for Presidential Homes, she worked out of the McBride Real Estate, Inc., office. No one other than the McBrides, including Respondent, had access to the real estate company records after hours.
During the week prior to August 6, 1982, Mr. Arndt, who had been present when the FREC investigator first came, told Respondent the investigator would be back the next day. When the investigator did come back the next day to Respondent's office, Respondent, her husband, and all records pertinent to Presidential Homes, Inc., which had been present when Mr. Arndt locked up the night before, were missing.
Mr. Paul Turscak also was a former employee of McBride Real Estate, Inc., during the period leading up to the McBride disappearance. He talked with Respondent frequently about Presidential Homes, Inc., operations, but whenever he would ask her about the status of a particular property--its construction schedule or its funding--he would not get a straight answer.
Both McBrides took several vacation trips to such places as Jamaica, Tennessee, and the Bahamas in the months prior to their disappearance. After a complete investigation of the situation by the Martin County State Attorney, Mr. McBride was tried, convicted, and sentenced to 30 years in prison for his complicity in the operation. Respondent was not tried.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
In Count I, Respondent is alleged to have violated Section 475.25(1)(b), Florida Statutes (1981), which provides:
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 separate offense, or may issue a reprimand, if it finds that the licensee or applicant 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 or any other state, nation, or territory; 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. . .
The uncontroverted evidence clearly shows that while Respondent may not have dealt directly with any of the purchasers, she did, as an officer of Presidential Homes, Inc., and an employee of McBride Real Estate, Inc., knowingly and willingly participate in a scheme to improperly drain the escrow account of the moneys held therein for the purchase of homes never built by Presidential Homes, Inc. Her signature appears as co-maker on two of the checks in evidence and as endorser on all four. In addition, when Mr. Arndt advised her the FREC investigator was coming, she, her husband, and all records immediately disappeared. She was evasive in dealing with her co-employees on matters relating to Presidential Homes, Inc. Taken together, this evidence presents an incriminating picture in which Respondent plays a material and important part, and her violation of this statutory provision is clearly established.
As to Count II, there is no evidence that this Respondent was ever called upon to account for or deliver anything of value; and as to Count III, there is no showing that as an employee/salesman of the real estate company she had any duty to maintain any records at the broker's office. Consequently, these two counts are not pertinent to this particular Respondent.
