STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3284

) ANN DORIS RICHMAN, JOHN P. ) SCHLICHER and PARAMAN FLORIDA, ) INC., )

)

Respondents. )

)

RECOMMENDED ORDER

This matter was heard on November 20, 1986, in Coral Gables, Florida, by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. The transcript of proceedings was filed on December 11, 1986, and proposed findings of fact and conclusions of law were submitted by January 6, 1987. Rulings on proposed findings of fact are contained in the Appendix to this Recommended Order.

For Petitioner: Arthur R. Shell, Jr., Esquire

Orlando, Florida

For Respondent: Allen P. Reed, Esquire

Miami, Florida PROCEDURAL BACKGROUND

This matter began with the filing of an Administrative Complaint which made allegations of misconduct against Ann Doris Richman, the Respondent herein, John

1. Schlicher and Parman Florida, Inc., arising out of a contract for the sale of a condominium unit in Miami, Florida. Before the final hearing a settlement was reached with John P. Schlicher and Parman Florida, Inc. Only the allegations against Ann Doris Richman were heard. These issues were framed in Counts One and Two of the Complaint as (1) whether Ann Doris Richman is guilty of false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes, or (2) whether she was guilty of having failed to immediately place with her employer a deposit entrusted to her by a person dealing with her as an agent of her registered employer, in violation of Section 475.25(1)(k), Florida Statutes?

   
   

   FINDINGS OF FACT

   
   

   1. Ann Doris Richman is a licensed real estate salesman holding license number 0073487. She was employed by Parman Florida, Inc., and her qualifying broker was John P. Schlicher.

   2. On April 20, 1985, Ms. Richman obtained a $1,000. deposit check and a written offer from James A. Angleton, Jr., to purchase condominium unit number

      503 at the Charter Club Condominium, 600 Northeast 36th Street, Miami, Florida, at a price of $70,000.00. The offer stated that the transaction was to close within 180 days from receipt of an abstract or, at the purchaser's option, sooner if it was possible to do so. Mr. Angleton was to assume the existing mortgage. The brokerage fee for the transaction was to be $4,200.00.

      
      

   3. Mr. Angleton informed Ms. Richman that the $1,000.00 check which accompanied his Condominium Deposit Receipt Contract was not good, and would be replaced if the owners of the condominium unit accepted his offer.

      
      

   4. The owners of the condominium unit resided in Costa Rica and were not readily accessible to Ms. Richman.

      
      

   5. The $1,000.00 check was brought to the attention of Ms. Richman's broker, Mr. Schlicher, but was not deposited because Ms. Richman had been told that it was not good. The check was kept in the file with the contract.

      
      

   6. Toward the end of May, 1985, the owners of the apartment came to the Parman office in Miami and were shown the Angleton purchase offer, but the owners would not sell for the $70,000.00 Angleton offered, because it would not have covered the mortgage and the brokerage fee. They made certain handwritten changes to the contract, i.e., that the sales price would be $77,500.00, that the purchaser would deposit an additional $2,000.00 upon execution of the contract, and that the closing date was to be October 1, but sooner if possible. The brokerage fee was reduced to $3,000.00

      
      

   7. Ms. Richman then called Mr. Angleton to tell him that the sellers had rejected his offer and made a counter-offer. Mr. Angleton did not come into the office of Parman Florida, Inc. until late June 1985. He initialed the changes the sellers had made on the contract and replaced the original $1,000.00 check with another check, which promptly was deposited. Ms. Richman changed the date at the foot of the contract when the replacement check was received from April 5, 1985 (the date Angleton's original offer had been made and the first

      $1,000.00 check had been given), to June 24, 1985, the date Angleton accepted the changes made in the contract by the sellers and made the new $1,000.00 deposit. Although the counter-offer included the additional requirement, which the sellers had interlineated by hand and Angleton had initiated, that an additional $2,000.00 deposit would be made upon the execution of the contract, Angleton made no additional $2,000.00 deposit then or at any other time. Ms.

      Richman never told the sellers the additional $2,000.00 deposit was not received.

      
      

   8. Angleton has stated various times when he claims to have made the

      $2,000.00 additional cash deposit the sales contract called for. He has said the cash was provided several days after June 24, 1985 (Tr. 41), and in late May 1985 (Tr. 43). Mr. Angleton and his lawyer, a Mr. Tryson, attempted, in December 1985, to secure the return of the $2,000.00 cash Angleton claims to have given Ms. Richman. In Tryson's letter of December 26, 1985, to Ms.

      Richman, Tryson stated that the $2,000.00 cash had been given after September 20, 1985. See Finding of Fact 9, post. Mr. Angleton is not only very confused as to the time the deposit was supposed to have been made, but he is wrong on the issue whether he gave a $2,000.00 cash deposit to Ms. Richman. No such thing happened.

   9. Ultimately, the sale was cancelled by the sellers because the closing did not take place within the time required by the contract. Mr. Angleton took the position, through his attorney, that the sellers had failed to deliver evidence of good title on a timely basis. The sellers made no claim to the

      $1,000.00 deposit, and Angleton's lawyer demanded from Ms. Richman on December 26, 1985, the return of the $3,000.00 deposit which Angleton claimed to have made.

      
      

   10. Angleton received a refund of $1,000.00, the amount of the check which was given on June 24, 1985, and had been deposited by Parman Florida, Inc.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over this matter, pursuant to Section 120.57(1), Florida Statutes.

       
       

   12. The Florida Real Estate Commission may impose discipline ranging from license revocation, license suspension for a period of up to ten years, imposition of an administrative fine not to exceed $1,000.00 for each offense, or issue a reprimand if it finds that a licensee:

       
       

       has been guilty of fraud, misrepresentation, concealment, false promises, false pre- tenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction... or

       
       

       has 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....any personal property such as money...which has come into his hands and which is not his property...

       Section 475.25 (1)(b),(d), Florida Statutes (1985).

       
       

   13. Count Two of the Administrative Complaint should be dismissed because Ann Doris Richman properly returned to Mr. Angleton the only deposit which he had made after he demanded its return.

       
       

   14. As to Count One, Ms. Richman is not guilty of any fraud, dishonesty, scheme or breach of trust with respect to Mr. Angleton in the transaction at issue. She is, however, guilty of culpable negligence with respect to the sellers of unit 503 at the Charter Club Condominium because they had specifically required as a condition of the acceptance of their counter-offer that an additional $2,000.00 deposit be made by Mr. Angleton, and no such deposit was made. Nevertheless, Ms. Richman forwarded the executed copy of the contract to the sellers as if their full instructions had been followed and the additional deposit received.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT:

1. As to Count One, Respondent be found guilty of culpable negligence, reprimanded and fined $250.00, and

   
   

2. As to Count Two, that count of the Administrative Complaint should be dismissed.

DONE AND ORDERED this 24th day of March, 1987, in Tallahassee, Florida.

WILLIAM R. DORSEY, JR

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 24th day of March, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3284

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Covered in Finding of Fact 1.

2. Rejected as unnecessary.

3. Covered in Finding of Fact 2.

4. Covered in Finding of Fact 5.

5. Rejected as unnecessary.

6. Rejected as irrelevant to this matter.

7. Covered in Finding of Fact

6. Rejected as subordinate to the findings made in Findings of Fact 6.

1. Generally covered in Finding of Fact 7, but the date the counteroffer was acceptable was June 24, 1985, not June 25, 1985.

2. Covered in Finding of Fact 7.

3. Covered in Finding of Fact 8.

4. Rejected because no $2,000.00 additional deposit was made by Mr. Angleton.

5. Covered in Finding of Fact 6, although there was no proof that all

   $3,000.00 of the sales commission would have gone to Richman.

6. Covered in Finding of Fact 8.

7. Covered in Finding of Fact 10.

8. Rejected as irrelevant.

Rulings on Proposed Findings of Fact Submitted by Respondent

1. Rejected as unnecessary.

2. Covered in Finding of Fact 2.

3. Covered in Finding of Fact 5.

4. Sentences 1 and 2 covered in Findings of Fact 3 and 5. The remainder rejected as unnecessary.

5. Sentences 1 and 2 rejected as unnecessary. Sentence 3 adopted in Finding of Fact 10.

6. Rejected as unnecessary.

7. Covered in Finding of Fact 7.

8. Covered in Finding of Fact 8.

9. Rejected as unnecessary.

10. Rejected as recitations of testimony not findings of fact.

11. Rejected as unnecessary.

12. Rejected as unnecessary.

13. Rejected as irrelevant and unnecessary.

14. Rejected as argument, not findings of fact.

COPIES FURNISHED:

Arthur R. Shell, Jr., Esquire Division of Real Estate/DPR

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Allen P. Reed, Esquire 901 Brickell Avenue

Miami, Florida 33131

Harold Huff, Executive Director Division of Real Estate/DPR

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joe Sole, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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AGENCY 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. 0152502

DOAH NO. 86-3284

ANN DORIS RICHMAN

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on April 14, 1987 to issue a Final Order.

Hearing Officer William R. Dorsey Jr. of the Division of Administrative Hearings presided over a formal hearing on November 20, 1986. On March 24, 1987, he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact and Conclusions of Law, except that Paragraph 3 of the Conclusions of Law is rejected in that it does not address Count II. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

The Florida Real Estate Commission therefore ORDERS that the Respondent pay an administrative fine of $1000 and that Respondent's real estate license be suspended for a period of six (6) months on Count I and Count II. The penalty is increased based on a complete review of the record and on Page 119, Lines 10 through 14, of the transcript.

This Order shall be effective 30 days from 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 filing date.

DONE AND ORDERED this 14th day of April 1987 in Orlando, Florida.

Harold R. Huff, Director Florida Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Allen P. Reed, Esquire, 801 Brickell Avenue, Miami, Fl 33131; to Hearing Officer William Dorsey Jr., Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Fl 32301; and to Arthur Shell Jr., Esquire, DPR, P.O. Box 1900, Orlando, Fl 32802, this 24th day of April, 1987.

Harold R. Huff

Docket for Case No: 86-003284

Orders for Case No: 86-003284