FILED Department of Bustess and Professional Regutation Deputy Agency Clerk STATE OF FLORIDA CLERK Evette Lawson-Proctor DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULAT] pate 6/28/2012 File # FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Petitioner, v. : Case No. 2010-042875 EFFORT REALTY, INC., Respondent. : / ADMINISTRATIVE COMPLAINT The Department of Business and Professional Regulation (Petitioner) files this Administrative Complaint against Effort Realty, Inc., (Respondent) and alleges: 1. Petitioner is the state agency charged with regulating the practice of real estate pursuant to Section 20.165, Florida Statutes, and Chapters 120, 455, and 475, of the Florida- Statutes and the rules promulgated pursuant thereto. 2. At all times material to this complaint, Respondent was licensed as a real estate brokerage in the State of Florida, having been issued license numbers 245833. 3. Respondent’s address of record is 665 North Tamiami Trail, Nokomis, FL 34275, 4, At all times material to this complaint, the qualifying broker for Respondent was Timothy Tritschler. 5. On or about June 17, 2009, Respondent, doing business as RE/MAX Effort Realty, facilitated a sales contract between Pat Avizzano, et al, as buyer, and Leland B. Birch and Deborah L. Weston, as seller. 6. The June 17, 2009 sales contract concerned real property located at 30 North and 70 North Indiana Ave., Englewood, FL 34223. 7, * The June 17, 2009 sales contract required Respondent to hold buyer’s $100,000.00 deposit in escrow. 8, On or about June 18, 2009, a $70,000.00 deposit from buyer was deposited into Respondent’s escrow account. 9. On or about June 19, 2009, a $30,000.00 deposit from buyer was deposited into Respondent’s escrow account. 10. On or about June 19, 2009, Respondent disbursed $25,000.00 of buyer’s $100,000.00 escrow deposit to RE/MAX Effort. 11. On or about June 25, 2009, Respondent disbursed the remaining $75,000.00 of buyer’s $100,000.00 escrow deposit to seller, Deborah Weston. 12 Respondent did not have authorization to remove or disburse the funds from escrow. COUNT ONE 13. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (i) through twelve (12) as if fully set forth herein. 14. Section 475.25(1)(k), Florida Statutes, subjects a licensee to discipline if the licensee: Has failed, if a broker, to immediately place, upon receipt, any money, fund, deposit, check, or draft entrusted to her or him by any person dealing with her or him as a broker in escrow with a title company, banking institution, credit union, or savings and loan association located and doing business in this state, or to deposit such funds in a trust or escrow account ‘maintained by her or him with some bank, credit union, or savings and loan association located and doing business in this state, wherein the funds shall be kept until disbursement thereof is properly authorized... 15. Respondent violated Section 475.25(1) (k), Florida Statutes in one or more of the following ways: a. By disbursing $75,000.00 of the deposit to the seller of the June 17, 2009 transaction without authorization from the depositor; b. By disbursing $25,000.00 of the deposit to RE/MAX Effort without authorization from the depositor. 16. Based upon the foregoing, Respondent violated Section 475.25(1) (k), Florida Statutes. COUNT TWO 17. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through twelve (12) as if fully set forth herein. 18. licensee to discipline if the licensee, Section 475.25(1)(e), Florida Statutes, subjects a “Has violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.” 19. Rule 6132-14.011, Florida Administrative Code, states: A broker who receives a deposit shall not have any right to or lien upon said deposit, except upon the written agreement or order “of the depositor so long as the depositor or ~depositor’s legal representative has sole control of said deposit, until the transaction involved has been closed, and no person has any claim except the party ultimately to receive the same, in which case the broker may deduct the agreed commission unless the amount or time of payment is disputed. In case of a dispute as to the amount of the commission, or the time of payment, the broker may retain only the amount of the claim in said account and in trust, until the dispute is settled by agreement, arbitration, mediation or court proceedings, as provided in Section 475.25(1) (d)l., Florida Statutes. A depositor has the right to demand return of a deposit until such time as another party has acquired some interest or equity, subject to the right to make an express agreement to compensate the broker for time and expense incurred prior to a demand for the return of the deposit; and such right to demand return of the deposit shall again accrue upon a breach by the other party to the contract or agreement under which it is held, or the expiration of the time fixed or a reasonable time, for performance of the things necessary to establish the exclusive right of such other party to said deposit. A broker shall not deliver the deposit to the other party to the transaction until such transaction is closed, except as otherwise directed or agreed to specifically by the | 20. Statutes, depositor. The interested parties involved, other than the broker, may by express agreement, alter the disposal of the deposit, but the burden shall be on the broker to establish good faith in the matter if such agreement is to the broker's advantage. The broker shall recognize and comply with the. joint directions of said parties in such cases, except where the parties act in bad faith with intent to deprive the broker of a commission, in which case the broker shall proceed as provided in Section 475.25(1) (d)1., Florida Statutes. - Respondent violated Section 475.25(1) (e), Florida when he violated Rule 61J2-14.011, Florida Administrative Code, in one or more of the following ways: a. 21. 475.25(1) (e), Florida Statutes by violating Rule 61J2-14.011, By delivering $75,000.00 of the deposit to the seller of the June 17, 2009 transaction without authorization from the depositor; . By delivering $25,000.00 of the deposit to RE/MAX Effort without authorization from the depositor; . By prematurely disbursing the $100,000.00 deposit without arbitration, mediation, or court proceeding. Based upon the foregoing, Respondent violated Section Florida Administrative Code. 22. the allegations set forth in paragraphs one (1) through twelve COUNT THREE Petitioner re-alleges and incorporates by reference (12), as fully set forth herein. 23. Section 475.25(1)(b), Florida Statutes, subjects licensee to discipline if the licensee: Has 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 “her or him by law or by the terms of a - listing contract, written, oral, express, or 24, Statutes, a. b. 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 committed an overt act in furtherance of such intent, design, or scheme. It is 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. Respondent violated Section 475.25(1) (b), Florida in one or more of the following ways: By breaching the depositors trust, delivering $75,000.00 of the deposit to the seller of the June 17, 2009 transaction without authorization from the depositor; By breaching the depositors trust, delivering a $25,000.00 of the deposit to RE/MAX Effort without authorization from the depositor; c. By violating a duty imposed by the terms of a real estate transaction, failing to hold the $100,000.00 deposit in the RE/MAX Effort Realty escrow account. 25. Based upon the foregoing, Respondent violated Section 475.25(1) (b), Florida Statutes, by breaching trust and violating a duty in a real estate transaction. WHEREFORE, Petitioner respectfully requests the Florida Real Estate Commission enter an order imposing one or more the following penalties: suspension or permanent revocation Respondent(s) license(s), restriction of practice, imposition an administrative fine, issuance of a reprimand, placement Respondent(s) on probation, corrective action, assessment of of of of of costs related to the investigation and prosecution of the case, and any other relief that the Commission deems appropriate. [SIGNATURE PAGE FOLLOWS} PCP Date: PCP MEMBERS: SIGNED this 6/18/2012 Poul Hornsleth/Herb Fisher 28th day of June , 2012, KEN LAWSON, Secretary Department of Business and Professional Regulation Andrew Rubin Fier Andrew Rubin Fier Assistant General Counsel Florida Bar No. 84985 Office of the General Counsel 1940 North Monroe Street, Ste 42 Tallahassee, FL 32399 (850) 488-0062 Telephone (850) 921-9186 Facsimile NOTICE OF RIGHTS PLEASE BE ADVISED that mediation under Section 120.573, Florida Statutes, is not available for administrative disputes involving this type of agency action. PLEASE BE FURTHER ADVISED that Respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses, and to have subpoenas and subpoenas duces tecum issued on his or her behalf if a hearing is requested. Rule 28-106.111, Florida Administrative Code, provides in part that if Respondent fails to request a hearing within twenty-one (21) days of receipt of an agency pleading, Respondent waives the right to request a hearing on the facts alleged. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 455.227(3) (a), Florida Statutes, the Board, or the Department when there is no Board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time, against the Respondent in addition to any other discipline imposed.

Docket for Case No: 13-000828