STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2748

)

ALFRED RIFFLARD, JR. and )

THOMAS L. NAROG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on November 10, 1983, in Ft. Lauderdale, Florida. Pursuant to leave, the parties were allowed through December 10, 1983, to submit memoranda supportive of their respective positions. Respondent's counsel has submitted a proposed Recommended Order which has been considered by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: Fred Langford, Esquire

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

For Respondents: Jon Agee, Esquire

2701 East Sunrise Boulevard, Suite 304 Sunrise Bay Building

Ft. Lauderdale, Florida 33304 ISSUE

The issue presented for decision herein is whether or not the Respondents engaged in dishonest dealing in a business transaction violative of Subsection 475.25(1)(b), Florida Statutes, 1/ by failing to disclose to John F. Wodalski, a seller of real property, that Respondent (purchaser), Alfred Rifflard, Jr., was a licensed real estate broker-salesman. Additionally, an issue raised is that the Respondent, Thomas L. Narog, made false and untrue statements to John

1. Wodalski respecting the facts that a $1,000 promissory note or funds would be held in trust. As a result, it is alleged that Respondents committed a breach of trust in a business transaction in violation of the real estate licensing law.

   FINDINGS OF FACT

   
   

   1. Based upon my observation of the witnesses and their demeanor while testifying, the posthearing memorandum and the entire record compiled herein, I hereby make the following relevant findings of fact:

      
      

   2. Respondent, Alfred Rifflard, Jr., during times material herein, was a licensed real estate broker-salesman and is the holder of license number 0338064.

      
      

   3. Respondent, Thomas L. Narog, during times material herein, was a licensed real estate salesman and is the holder of license number 0309097.

      
      

   4. On approximately May 24, 1982, Respondent Narog represented to John F. Wodalski that Respondent Rifflard, as an investor, was interested in purchasing certain real property owned by Wodalski. Based on discussions with seller Wodalski, Wodalski and Respondent Alfred Rifflard entered into a deposit receipt and contract for sale and purchase of the Wodalski property. The purchaser is listed on the deposit receipt contract as Alfred Rifflard and/or assigns." (Petitioner's Exhibit 3)

      
      

   5. The negotiations for the sale of the subject property were conducted at the bar of a country club where both Respondent Naroq and seller Wodalski were employed. Respondent Rifflard was aware that the subject property had been on the market for approximately eighteen months. Seller Wodalski expressed (to Respondent Narog) disenchantment that he was unable to move the property as he had planned to purchase other properties with the proceeds received from the sale of the subject property. Respondent Narog attempted to sell the Wodalski property to enable him (Wodalski) to purchase the other property.

      
      

   6. During the negotiations for the sale of the subject property, Respondent Wodalski tendered a copy of his business card to seller Wodalski. That business card reflected that Respondent Rifflard was a licensed real estate salesman.

      
      

   7. Following the execution of the deposit receipt contract by Respondent Rifflard, Respondent Rifflard showed the property to approximately three prospective purchasers in an effort to sell the property prior to the purported closing date.

      
      

   8. Federal Land Title Corporation of Ft. Lauderdale, Florida was commissioned to handle the closing of the property from seller Wodalski to Respondent Rifflard and/or his assigns. This is confirmed by a letter dated August 19, 1982 to seller Wodalski wherein loan processor Kathy Bradley advised the seller that she expected to expedite the closing of the Wodalski property. (Petitioner's Exhibit 4)

      
      

   9. Upon receiving the above-referred letter from Federal Land Title Corporation, seller Wodalski demanded a tender of the $1,000 earnest money deposit which is referred to in the deposit receipt contract executed by Respondent Rifflard. At that time, Respondent Narog was told that no monies could be disbursed to him prior to closing. Seller Wodalski called off the closing based on his claim that another broker advised him that it was illegal for an undisclosed licensed real estate salesman to purchase property in his name.

   10. Based on the testimony of Respondents Rifflard and Narog including the testimony of the Petitioner's investigator, Anthony Nicola, who investigated the subject complaint, it is specifically found herein that the Respondents disclosed the fact that Rifflard was a licensed real estate salesman at the time the deposit receipt contract was executed herein. In making this finding, consideration was given to seller Wodalski's testimony to the effect that he was busy 2/ at the time that he entered the deposit receipt contract and that it was indeed possible that Respondent Rifflard tendered a business card to him at the time he entered the subject contract.

       
       

   11. Paragraph two of the deposit receipt contract reveals that the method of payment includes a $1,000 deposit, in the form of a note, which would be returned to the buyer at closing. It is undisputed by the Respondents that no earnest money deposit note in the amount of $1,000 was given the buyer's attorney to be held in trust until the closing was completed. The Respondents acknowledged that it was an error on their part to fail to execute the earnest money deposit as Respondent Rifflard agreed in the subject deposit receipt contract. Further, Respondent Rifflard urges that his failure to execute a note was an oversight on his part.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   13. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

       
       

   14. The authority of the petitioner is derived from Chapter 475, Florida Statutes. Respondents, Alfred Rifflard, Jr. and Thomas Narog, as licensed real estate salesman and broker-salesman respectively, are subject to the disciplinary guides of Chapter 475, Florida Statutes.

       
       

   15. Insufficient evidence was offered to establish that the Respondents Alfred Rifflard, Jr. and/or Thomas Narog failed to disclose to seller John F. Wodalski that Alfred Rifflard, Jr., a licensed real estate salesman, was the actual intended contract-purchaser of his property. To the contrary, the credible evidence herein reveals that the Respondents disclosed to Wodalski that Respondent Rifflard was a licensed real estate salesman.

       
       

   16. Competent and substantial evidence was offered herein to establish that the Respondents failed to deliver a $1,000 promissory note as an earnest money deposit to be held in trust by either the buyer's attorney or any other independent person in a position of trust as agreed. However, in view of the circumstances herein, including the fact that the closing failed to become a reality solely on the seller's own refusal to go forward with the closing, the Respondents' breach of their obligation to place the above-referred earnest money deposit in trust amounts to only a technical violation of the real eatate licensing law. Based thereon, I shall only recommend that the Respondents be reprimanded privately by the petitioner, Division of Real Estate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby

RECOMMENDED:

That the Respondents, Alfred Rifflard, Jr. and Thomas L. Narog, be privately reprimanded by the Petitioner, Division of Real Estate, based on their failure to place in deposit, to be held in trust, a $1,000 earnest money deposit in connection with the transaction surrounding the deposit receipt and contract for sale and purchase entered into by Alfred Rifflard, Jr., as purchaser of certain real property owned by John Wodalski.

RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida.

JAMES E. BRADWELL

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 31st day of January, 1984.

ENDNOTES

1/ To the extent that the proposed findings, etc., urged in the Respondents' proposed Recommended Order are not incorporated in this Recommended Order, said proposed findings, etc., were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

2/ Mr. Wodalski was working as a bartender at the time he executed the deposit receipt contract.

COPIES FURNISHED:

Fred Langford, Esquire Department of Professional

Regulation

Division of Real Estate Post Office Box 1900 Orlando, Florida 32802

Jon Agee, Esquire

2701 E. Sunrise Boulevard Suite 304

Sunrise Bay Building

Ft. Lauderdale, Florida 33304

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION

Petitioner,

vs. DOAH NO. 83-2748

CASE NOS. 0030547

ALFRED RIFFLARD JR. and 0030548

THOMAS L. NAROG,

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on March 20, 1984 to issue a Final Order.

Hearing Officer James E. Bradwell of the Division of Administrative Hearings presided over a formal hearing on November 10, 1983. On January 31, 1984, he issued a Recommended 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 Respondents receive a public reprimand.

This Order shall be effective thirty (3O) days from the date of filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 20th day of March 1984 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: Jon Agree, Esquire, Suite 304 Sunrise Bay Building, 2701 East Sunrise Boulevard, Ft. Lauderdale, Florida 33304; to Hearing Officer James E. Bradwell, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to Fred Langford, Attorney for Petitioner, Dept. of Professional Regulation, P.O. Box 1900, Orlando, Florida 32802, this 3rd day of April, 1984.

Harold R. Huff, Director

LG:pep

Docket for Case No: 83-002748

Orders for Case No: 83-002748