Judges: R. T. CARPENTER
Agency: Department of Business and Professional Regulation
Latest Update: Sep. 27, 1984
Summary: Respondents, Realty Company, diverted funds though not authorized by client.
83-0747.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, FLORIDA REAL )
ESTATE COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 83-0747
) ANTHONY R. LaROSSA AND DUPONT ) REALTY INVESTMENT CORPORATION, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing on May 1, 1984, in Miami, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer,
T. Carpenter. The parties were represented by:
For Petitioner: Fred A. Langford, Esquire
Department of Professional Regulation Post Office Box 1900
Orlando, Florida 32802
For Respondent: Monroe Gelb, Esquire
GELB and SPATZ
3400 Southwest 3rd Avenue Miami, Florida 33145
This matter arose on Petitioner's Administrative Complaint charging Respondents with failure to place a real estate deposit in trust or escrow and with dishonest dealing in violation of Subsection 475.25(1), Florida Statutes (F.S.)
FINDINGS OF FACT
Respondents were licensed real estate brokers at all times relevant to this proceeding.
Robert M. Hall, Respondent LaRossa's nephew, gave LaRossa an $18,000 bank draft around January 1, 1982, toward purchase of an apartment building. LaRossa was to acquire the property in partnership with Hall.
The deal fell through and Hall sought return of his $18,000. However, Respondents had not placed the funds in a trust or escrow account but had diverted them to other uses. As a result, LaRossa was not able to return the funds on demand by Hall.
Hall then accepted LaRossa's promissory note to be discharged by June 2, 1982. However, when the debt remained unpaid, Hall filed a civil suit in
Dade County and obtained a judgment for $22,145 on March 23, 1983. LaRossa finally paid this amount plus interest to the satisfaction of Hall on May 1, 1984.
Hall, who was the complaining witness in this proceeding, stated that he "had no trust arrangement" with LaRossa in his letter acknowledging receipt of the funds. However, Hall had turned over the $18,000 to LaRossa with an expectation of investment or return and was distressed at LaRossa's failure to return the funds on demand.
Although Hall and LaRossa are related and planned to enter a joint business venture, Hall relied on LaRossa to arrange the purchase of the commercial property in his capacity as a broker. There was no legitimate reason for Respondents to divert Hall's deposit, which was held by them in a trust capacity.
CONCLUSIONS OF LAW
Subsection 475.25(1), F.S. provides in part:
The board may deny an application for licensure and 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:
* * *
(k) 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;...
Respondents are guilty of violating Subsection 475.25(1)(k) F.S., as charged, by failure to place Hall's $18,000 deposit in escrow or trust. Although no diversion was authorized by Hall, Respondents diverted these funds and did not return them to Hall for over two years after the demand for return was made.
Respondents are guilty of violating Subsection 475.25(1)(b) F.S., as charged by violating the duty imposed upon them to place Hall's $18,000 deposit in an escrow or trust account, and by breach of their trust relationship with Hall in diverting these funds.
RECOMMENDATION
Based on the foregoing, it is RECOMMENDED:
That Petitioner enter a Final Order suspending the real estate brokers licenses held by Respondents for a period of 90 days.
DONE and ENTERED this 14th day of August, 1984, in Tallahassee, Florida.
R. T. CARPENTER Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1984.
COPIES FURNISHED:
Fred A. Langford, Esquire
Department of Professional Regulation Post Office Box 1900
Orlando, Florida 3202
Monroe Gelb, Esquire GELB and SPATZ
3400 Southwest 3rd Avenue Miami, Florida 33145
Mr. Harold Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
Mr. Fred M. Roche, Secretary Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION,
Petitioner,
vs. CASE NO. 0027951
DOAH NO. 83-747
ANTHONY R. LaROSSA & DUPONT REALTY INVESTMENT CORPORATION
Respondent.
/
FINAL ORDER
The Florida Real Estate Commission heard this case on September 18, 1984 to issue a Final Order.
Hearing Officer R. T. Carpenter of the Division of Administrative Hearings presided over a formal hearing on May 1, 1984. On August 14, 1984, he issued a Recommanded Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact and Conclusions of Law. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.
However, as to the Recommendation, after a complete review of the record the Florida Real Estate Commission hereby ORDERS that the penalty be increased from a 90-day suspension to revocation of the license and registration of the Respondents. Based upon a review of the transcript, the Florida Real Estate Commission states that the increase in penalty is justified by the evidence and testimony set forth on Page 39, Lines 19 through 21 of the official transcript and on Page 41, Lines 16 through 18 of the official transcript.
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 September 1984 in Orlando, Florida.
Harold R. Huff, Director 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: Monroe Gelb, Esquire, Gelb and Spatz,. 3400 SW 3rd Avenue, Miami, Florida 33145; to Hearing Officer R.T. Carpenter, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to Fred Langford, Staff Attorney, Dept. of Professional Regulation, P O Box 1900, Orlando, Florida 32802, this 26th day of September, 1984.
Harold R. Huff, Director
=================================================================
AGENCY AMENDED FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION
DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE
Petitioner,
vs. CASE NO. 0027951
DOAH NO. 83-0747
ANTHONY R. LaROSSA and DCA NO. 84-2359 DUPONT REALTY INVESTMENT
CORPORATION
Respondent.
/
FINAL ORDER
The Florida Real Estate Commission heard this case on Remand from the Third District Court of Appeal, Case No. 85-2895 issued September 23, 1986, at the Commission meeting of October 28, 1986, to issue a Final Order.
Hearing Officer R. T., Carpenter of the Division of Administrative Hearings presided over a formal hearing on May 1, 1984. On August 14, 1984, he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact, Conclusions of Law and Recommendation. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.
The Florida Real Estate Commission herefore ORDERS that the real estate broker's license and registration of the Respondents be suspended for a period of 90 days.
This Order shall be effective 30 days from the date of filing with the Clerk of the Department of Professional Regulation. This Order shall be appealable to the District Court of Appeal within 30 days from its effective date.
DONE AND ORDERED this 28th day of October 1986 in Orlando, Florida.
Harold R. Huff, Director 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: Monroe Gelb, Esquire, Gelb and Spatz, 3400 SW 3rd Avenue, Miami, Florida 33145; to Hearing Officer R.T. Carpenter, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to Fred Langford, Staff Attorney, Dept. of Professional Regulation, P.O. Box 1900, Orlando, Florida 32802, this 26th day of September 1984.
Harold R. Huff, Director
Docket for Case No: 83-000747
Orders for Case No: 83-000747
