STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3245

) RONALD A. MILLER, DONALD LEE ) O'DELL & ROMILL REALTY INC. )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ft. Lauderdale, Florida, on March 28, 1984, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Robert W. Lee, Esquire

Department of Professional Regulation

400 West Robinson Street, Suite 308 Post Office Box 1900

Orlando, Florida 32802

For Respondent: Ronald A. Miller

Post Office Box 297 Champlain, New York 12919

This case arose on the complaint of Claude Des Lauriers alleging that Respondent Ronald A. Miller wrongfully retained a $30,000 deposit. On the basis of this complaint, Petitioner charged licensed salesman Miller, licensed broker David O'Pall and the corporate broker, Romill Realty, Inc. with violations of Section 475.25, Florida Statutes (F.S.). The charges against O'Dell and Romill Realty have been separately resolved by Petitioner and these Respondents are dismissed as parties to this proceeding.

The parties submitted proposed findings of fact and conclusions of law.

To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. Respondent is a licensed real estate salesman and was so licensed at all times relevant to this proceeding. However, his license is currently inactive.

   
   

2. At the time of the transaction with Des Lauriers in October, 1981, which is the basis for these charges, Respondent was employed by Romill Realty,

   Inc. with offices in Pompano Beach, Florida. Respondent's supervising broker at that time was David Lee O'Dell.

   
   

3. Both Des Lauriers and Respondent are Canadian citizens and had done business in Montreal where Respondent was a securities dealer. Discussions on the purchase of Florida property began in Montreal and eventually resulted in an offer which Respondent arranged between Des Lauriers and his associates as buyers and a Robert G. Lubbers as seller.

   
   

4. The property at issue is located in Broward County, Florida. A $30,000 deposit was required and was paid by an associate of Des Lauriers in Canada to Ronald Miller's business account there. Although the $30,000 deposit apparently never reached Florida, Respondent concedes that he did receive it. His supervising broker should have been, but was not, involved in this transaction, nor did he receive this deposit.

   
   

5. Subsequently, the offer to Lubbers was rejected and Des Lauriers demanded that Respondent return the $30,000. The money has not been returned. Respondent attempted partial payment at onetime, but his check was dishonored. He eventually transferred his interest in a Florida condominium to Des Lauriers and executed a mortgage on his house in Canada. However, the value of these assets is only about $10,000.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 475.25, F.S., provides in part:

   
   

   1. 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;

      * * *

      (d) 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. . .

      
      

7. The above provisions condemn breach of trust in any business transaction in this country or elsewhere by a licensed real estate salesman. Failure of the license holder to return a deposit where, as here, the customer is entitled to such return is specifically condemned.

   
   

8. Respondent received and retained a $30,000 deposit on a real estate transaction that he arranged. This money was received by Respondent in his capacity as a licensed real estate salesman and was required to be held in trust. His failure to return the deposit when the sale failed to materialize was a breach of that trust and a violation of the above quoted provisions.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Petitioner enter a Final Order revoking Respondent's real estate salesman license.

DONE and ENTERED this 4th day of May, 1984, in Tallahassee, Florida.

R. T. CARPENTER 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 May, 1984.

COPIES FURNISHED:

Robert W. Lee, Esquire Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Ronald A. Miller Post Office Box 297

Champlain, New York 12919

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

Fred M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-003245

Orders for Case No: 83-003245