The Issue Whether petitioner is disqualified to hold a real estate salesman's license in Florida on account of the alleged revocation of a Virginia real estate license?
Findings Of Fact Petitioner Eugene Frank Steffey was at one time licensed as a real estate broker in Virginia, Maryland and the District of Columbia. The seventy- year-old father of four, he has had significant experience in real estate transactions. Petitioner filed an application for licensure as a real estate salesman in Florida which respondent received on November 1, 1983. Joint Exhibit No. 2. By his answer to a question on the form, he advised respondent of a problem he had had in Virginia with the licensing authorities there. At hearing, he elaborated.*(See end) He was "a pivotal person" (T. 14) in syndicates holding land around Dulles Airport aggregating some $10,000,000 in value "as of 1970 prices," (T. 13) when somebody filed a complaint about him with the Virginia Real Estate Commission. [W]hen they investigated me, the only thing they could find was wrong was what's in this consent order. (T. 13) Petitioner signed the consent order without advice of counsel. He testified that "there is just no way I would have signed this if I had had an attorney (T. 13) but that he "couldn't get an attorney and at the same time protect the interests of these numerous other parties." (T.14) The consent order, No. 75-76-8, dated June 7, 1976, revokes Mr. Steffey's Virginia broker's license and denies him the "right to hold a license as a real estate broker or salesman in Virginia," and recites allegations, which are neither admitted nor denied in the document, that On or about March 16, 1970 Eugene F. Steffey, as Trustee and non-concurring beneficiary, entered into a "Land Trust Agreement" on the letterhead of "E. F. Steffey & Sons, Inc." with Gilbert F. Pascal arid other beneficiaries whereby the beneficiaries agreed to convey to Steffey two parcels of real property located in Loudoun County, Virginia; Parcel A containing approximately seventy five (75) acres, and Parcel B. containing approximately ninety nine (99) acres, all known as the "Route 15 Property." The purpose of the Trust was to acquire and hold the property for investment, including the incidental power to maintain and conserve the property and to collect and distribute any income therefrom. The agreement provided for Steffey to receive an annual management fee of $100. On Parcel A the Trust assumed a First Deed of Trust of $25,000 due and payable December 16, 1971. Without the knowledge of the other trustees, Steffey executed promissory notes in the aggregate amount of $25,000 secured by a Deed of Trust encumbering Parcel A, dated April 20, 1971, and with the proceeds from said notes satisfied the approximately $12,500 due on the Deed of Trust assumed on Parcel A and converted the remaining $12,500 to his own use. On or about April 1, 1975, without the knowledge of the other beneficiaries, Steffey leased Parcels A and B to Virginia Beef Corporation for an annual rent of $1,000. By check dated March 28, 1975 Virginia Beef Corporation paid to Steffey $1,000 which Steffey converted to his own use. Joint Exhibit No. 3. Mr. Steffey testified, without contradiction, that "nobody lost money and there was no other involvements." (T. 14)
Findings Of Fact The Respondent, David William Houser, at times pertinent hereto, was a licensed real estate salesman registered in the employ of Alfred H. Trafford, Trafford Realty Company, a licensed real estate broker. The Petitioner is an agency of the State of Florida charged with licensing, regulating the licensure status of realtors and enforcing the disciplinary provisions of Chapter 475, Florida Statutes. The Respondent has been a licensed real estate salesman since 1975, and he has been registered with the above-named broker for seven years prior to June, 1983. In February, 1983, the Respondent, on behalf of a client, Mr. Robert Carroll, began attempting to locate commercial property in the Cocoa, Florida area for purchase by Mr. Carroll. Through contacts with the Respondent at his place of business at Trafford Company, and through information received in conversations with the Respondent, Mr. Carroll became immediately aware that the Respondent was an employee of Trafford Realty Company. Mr. Trafford, the broker, knew that the Respondent was attempting to locate commercial property for Mr. Carroll and Mr. Trafford assisted, advised and discussed the search for property with the Respondent, conferring with the Respondent as to available commercial properties that might be suitable for Mr. Carroll's purposes. Respondent located a parcel of property on Clearlake Road in Cocoa which was initially acceptable to Mr. Carroll. The property was not listed at the time with Trafford Realty Company. The Respondent prepared a contract (offer to purchase) which was executed by Mr. Carroll as buyer. At the time Carroll executed the offer to purchase, he gave the Respondent an earnest money deposit check in the amount of $1,000 payable to Trafford Realty Company, at the Respondent's behest. At all times relevant to this administrative complaint, Trafford Realty Company had a policy id procedure for processing of real estate sales contracts which provided that earnest money was to be deposited in the company's escrow account. The procedure required that the earnest money check and a copy of the contract be delivered by the employee who obtained the contract and check to Trafford Realty Company's general sales manager. The general sales manager was responsible for preparation of an escrow file card and for deposition of the check into the company's escrow account. After obtaining the contract for the Clearlake Road property signed by Mr. Carroll, the Respondent submitted the deposit check and a copy of the contract to the sales manager, in accordance with the company's established policy. The owner of the Clearlake Road property thereafter rejected the contract and the Respondent thereupon continued his search for commercial property satisfactory to Mr. Carroll. Shortly thereafter, the Respondent located another piece of commercial property on Fiske Boulevard in Cocoa, Florida. This property was the subject of an "open listing" of Trafford Realty Company at the time. The Respondent contacted a fellow salesman of his company, Eileen Bleyer, who held the actual listing on the Fiske Boulevard property. The Respondent told that salesman that he had a potential buyer for the property and asked her to arrange for an appointment with the owner to inspect it. This salesman, Mrs. Bleyer, knew that the Respondent was at the time employed by Trafford Realty Company just as she was, and she called the owner and scheduled an appointment for a Sunday afternoon in February, 1983. The Respondent and Mr. Carroll inspected the property that afternoon in the presence of the owner, Linda Cooper, and her agent, Tom Loomis. The Respondent informed Mr. Loomis that he was a salesman for Trafford Realty Company. The Respondent also gave Mr. Loomis his business card with the name Trafford Realty depicted thereon. The Respondent ultimately negotiated a contract price for the property, on behalf of Mr. Carroll, with Mr. Loomis. Since the owner did not want to pay a real estate sales commission, the contract did not provide for the commission to be paid by the seller. Instead, Mr. Carroll, the buyer, agreed to pay a commission of $2,500. The contract provided that the $1,000 earnest money check from Mr. Carroll would be delivered to a title company which would handle the transaction. Trafford Realty Company had no requirement that its salesmen have contracts reviewed by the broker before, during or after they were negotiated and executed. Neither did Trafford Realty Company have any procedures for its salesmen to report contracts to the broker which did not contain a provision for depositing earnest money in the Trafford Realty Company escrow account. In any event, at a regularly scheduled, weekly commercial sales meeting of Trafford Realty Company employees, the Respondent informed Mr. Trafford, his broker, that the Fiske Boulevard property had been sold. Further, on at least two occasions, Mr. Carroll's son left messages with Trafford Realty's receptionist when he or his father attempted to contact the Respondent concerning the status of the contract. Thus, they clearly knew that the Respondent was representing them under the auspices of Trafford Realty Company, rather than on his own. Additionally, after the contract was signed, the Respondent contacted the city of Cocoa to determine the type of zoning applicable to the property and, at his behest, the City Zoning Department personnel responded in writing to the Respondent in care of Trafford Realty Company. In any event, at the closing of the transaction, Mr. Carroll refused to pay the full commission of $2,500 and indeed, never has paid any of the commission, such that the Respondent could remit all or any portion of it over to his broker or Trafford Realty Company. The Respondent intended to remit to Trafford Realty Company the entire real estate sales commission after he received it from Mr. Carroll at the closing or thereafter. Mr. Carroll simply never paid any of the commission he was obligated to pay. Further, on instructions from Mr. Carroll, a mortgagor who owed Mr. Carroll a mortgage payment regarding certain property he was purchasing, delivered a $2,000 check payable to Mr. Carroll to the Respondent. The Respondent, however, delivered that check, unnegotiated to Mr. Carroll's attorney and obtained a receipt for it. Later that same day, Mr. Carroll's attorney called the Respondent and informed him that he could expect to receive his real estate commission the following week. During that conversation, the Respondent informed Mr. Carroll's attorney that any monies he received were to be turned over to Trafford Realty Company and he wrote a contemporaneous memorandum reiterating that statement. Since Mr. Carroll has not yet paid the real estate sales commission or any part of it, there have never been any monies due Trafford Realty Company which the Respondent had in his possession or control, such that he could misappropriate them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the administrative complaint be DISMISSED in its entirety. DONE and ENTERED this 24th day of October, 1984, in Tallahassee, Florida. P. MICHAEL RUFF, 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 24th day of October, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Rodney L. Russell, Esquire 415 North Magnolia Avenue Post Office Box 886 Orlando, Florida 32802 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
Findings Of Fact On August 15, 2007, Respondent, Department of Financial Services (DFS) entered a Notice of Intent (the agency's proposed final agency action) to the effect that it proposed to enter a final order approving the claim for unclaimed property filed by “Christine Margrave and Anthony Richard Margrave as Trustees of the Florence Alice Cassidy Trust for the benefit of Peter Cassidy” and to withhold no amount on behalf of Petitioner. The certificate of service of that Intent is dated August 16, 2007, as evidenced by its attachment to the Department's Motion to Dismiss. The Notice of Intent was received by Petitioner on August 20, 2007, as evidenced by a signed "return receipt requested" form, a copy of which is attached to the Department's Motion to Dismiss. On September 11, 2007, Petitioner filed its Petition with DFS. The date of receipt by the Agency is evidenced by the Agency’s date stamp on the Petition, a copy of which is attached to the Department's Motion to Dismiss. On or about September 24, 2007, the cause was referred to the Division of Administrative Hearings and assigned to the undersigned. Enclosed in the referral packet was Respondent Agency's timely Motion to Dismiss with all attached exhibits. On October 3, 2007, an Order was entered, pointing out (to Petitioner) that Respondent Agency's Motion to Dismiss had been incorporated in the Agency referral packet received at the Division on or about September 24, 2007, and that, in an abundance of caution, Petitioner was being granted 12 days from October 3, 2007 (that is, until October 15, 2007), to file any response in opposition to the Agency’s Motion to Dismiss. Petitioner filed no timely response. On October 25, 2007, an Order was entered taking the Agency’s Motion to Dismiss under advisement. On September 28, 2007, the “Response of Jennifer Christine Margrave and Anthony Richard Margrave” was filed. This item has been treated as the Trust’s motion to intervene. By another October 3, 2007 Order, Petitioner and Respondent were granted the time provided in Florida Administrative Code Rule 28-106.204, in which to respond in support or opposition to the Trust’s motion to intervene. This would have been 12 days from the date of the October 3, 2007, Order. Respondent Agency filed a timely response in support of the Trust’s intervention. Petitioner has filed nothing to date. On October 11, 2007, the Trust filed a Motion to Dismiss, incorporating by reference Respondent's Motion to Dismiss and relating that the Trust had declined to sign a power of attorney to Petitioner which would have required it to pay more than 40 percent of the value of the unclaimed asset here at issue. Petitioner filed no timely response. Because it appeared that the Trust had served its two motions upon Petitioner by e-mail and to a street address which was not Petitioner’s street address of record before the Division of Administrative Hearings, the undersigned, in an abundance of caution, utilized the following procedure to ensure that Petitioner would have every opportunity to respond to those motions or object to any of the exhibits attached to any motion. By attachments to an Order entered October 25, 2007, the Trust’s Motion to Intervene and Motion to Dismiss were re-served upon Petitioner by U.S. Mail at the Petitioner’s correct street address of record before the Division. The Order further invited a timely response per rule. A timely response would have to have been filed with the Division on or before November 6, 2007. Petitioner filed no timely response in opposition, and has filed nothing to date. On November 6, 2007, an Order was entered, granting the Trust’s motion to intervene and taking the Trust’s Motion to Dismiss under advisement. This Recommended Order of Dismissal is entered without oral argument, as permitted by Florida Administrative Code Rule 28-106.204. The pleadings of record show that on or about April 12, 2006, "P. (Peter) Cassidy" had executed a written power of attorney to Petitioner Corporation restricted to authorizing Petitioner to effect distribution of assets legally belonging to the estate of his father, Jerome G. Cassidy, to which Peter was legally entitled as sole legal beneficiary. The agreement specified a fee of $6,845.57 to Petitioner and a net of $10,000.00 to Peter. However, Peter, in proper person, was not the legal owner of the asset. The Florence Alice Cassidy Trust for the benefit of Peter Cassidy, is the beneficiary. Oral agreements are recognized by the Florida Statutes as follows: Section 717.1381 Any oral or written agreement or power of attorney for compensation or gain or in the expectation of compensation or gain, that includes an unclaimed property account valued at more than $250 which was made on or before 45 days after the holder or examination report was processed and added to the unclaimed property database, subsequent to a determination that the report was accurate and that the reported property was the same as the remitted property, is void as contrary to public policy. Any oral or written purchase agreement that includes an unclaimed property account valued at more than $250, owned by another and made on or before 45 days after the holder or examination report was processed and added to the unclaimed property database, subsequent to a determination that the report was accurate and that the reported property was the same as the remitted property, is void as contrary to public policy. (2) A person may not enter into a power of attorney or an agreement, or make solicitation to enter into a power of attorney or an agreement, that is void under this section. However, there is nothing in Chapter 717, Florida Statutes, that makes the Department or the Division the determinor of such oral agreements. The Petition herein represents that an oral agreement existed between Petitioner and Intervenors (the Trust), whereby the Trust as "Claimant" agreed to pay Petitioner a "fee" or "costs" (the Petition uses both terms) for the Petitioner's services for locating the account (asset) at issue; for obtaining the necessary documents to successfully claim the account; and by Petitioner doing any and all other acts necessary in the procurement of any additional items as might be required for Petitioner to file a complete claim on Intervenors' behalf. Petitioner bases the instant claim on a February 9, 2007, e-mail transmission from Intervenors to Petitioner and the circumstances surrounding it, the most notable circumstance being that prior to the February 9, 2007, e-mail, Petitioner had advised Intervenors that all necessary documents had been secured and would be forwarded to them. The Trust's February 9, 2007, e-mail reads: I can confirm however that I have now obtained a certified death certificate for Mr. Cassidy which has a similar seal to that which you describe. All the documents I shall be sending you, including the death certificates for Mr. & Mrs. Cassidy, will be copies of the originals and which will have been certified and sealed by a Notary Public. You have confirmed that the copy [sic] driving licenses of Mr. & Mrs. Margrave which I will provide as proof of identity do not need to be certified. Perhaps you would kindly confirm that all the above will be in order and on receipt of the document by mail you will be able to complete the claim. Perhaps you could also let me know how long completion of the claim and issue of the funds will take. On a final note I, like you, have been christened with the male version of my name but am in fact Mrs. Gabriel Gray! Petitioner also relies on its own February 12, 2007, e-mail transmission to Intervenors, which sets forth as follows: As a reminder, the Limited Powers of Attorney must also accompany the documents . . . Upon receipt of the documents and Limited Powers of Attorney the claim will be submitted for approval. Intervenors/Trustees and their English solicitor never executed a written power of attorney on behalf of the Trust. On or about March 19, 2007, Intervenors filed their own claim, as Trustees of the Florence Alice Cassidy Trust for the Benefit of Peter Cassidy, for the unclaimed property of Jerome G. Cassidy. Intervenors have presented documentation to satisfy the Agency that Jerome Cassidy pre-deceased his spouse, Florence Alice Cassidy, who is also deceased; that both Jerome and Florence died in England; that Ms. Margrave is the personal representative of the estate of Florence Alice Cassidy for the benefit of Peter Cassidy, who is the son of the decedents. Ms. Margrave and Anthony Richard Margrave are trustees of the discretionary trust. The Petition represents that it would have been impossible for Intervenors to have obtained the necessary origination of the asset (bank account) in question using the Respondent Agency's database alone. Upon the foregoing and other information, Respondent Agency has determined that Petitioner has no standing and that disbursement of the asset should be made exclusively to the Trust/Intervenors.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order dismissing the Petition herein. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2007. COPIES FURNISHED: Paul C. Stadler, Jr., Esquire Department of Financial Services 200 E. Gaines Street Tallahassee, Florida 32399-0333 Gerald E. Daugherty Worldwide Research Services Corporation 3221 Hansen Court Tallahassee, Florida 32301 Anthony Richard Margrave Jennifer Christine Margrave Courtyard Entrance, the Old Post Office 130 Epsom Road, Merrow, Guildford, Surrey GU1 2PX Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact The parties Petitioner, Department of Business and Professional Regulation, Division of Real Estate, is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Christopher Chillemi (Christopher), is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0136243. The last license issued to Christopher was as a broker- salesperson with Michael F. Chillemi, 3615 Lake Worth Road, Lake Worth, Florida 33460. Respondent, Michael F. Chillemi (Michael), is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0014678. The last license issued was as a broker t/a Century 21 Chillemi Enterprises, 3615 Lake Worth Road, Lake Worth, Florida 33460. Counts I-III, the rental transaction On May 18, 1993, Christopher, while licensed and operating as a broker- salesperson for Michael F. Chillemi, showed a rental unit on which they had a listing, located at 752 Lori Drive, Palm Beach County, Florida, to Ms. Rose M. Bocek. Ms. Bocek liked the apartment, but since she was currently under a lease at another residence, advised Christopher that she could not take the unit unless the owner agreed to start the lease in August 1993. Christopher advised Ms. Bocek that he would present her offer to the owner, who lived out of state, and requested a deposit check should the owner agree. Thereupon, Ms. Bocek issued her check, dated May 18, 1993, payable to "C-21 Chillemi Escrow" in the sum of $375.00, as a deposit on the apartment, and delivered it to Christopher. 1/ That evening, Christopher spoke with the owner and he agreed to lease the apartment to Ms. Bocek starting in August 1993. Ms. Bocek's check for $375 was duly deposited into the Century 21 Chillemi Enterprises' escrow account on May 19, 1993. Notwithstanding that the owner had agreed to lease the premises to her as she had requested, Ms. Bocek called Christopher on May 19, 1993, and told him she had changed her mind and did not want to rent the apartment. Christopher, after checking with the owner, advised Ms. Bocek that, under the circumstances, the owner had advised him not to return her deposit. After speaking with friends, Ms. Bocek contacted the Florida Real Estate Commission to see if it could assist her in retrieving her money and, on June 24, 1993, an investigator went to Century 21 Chillemi Enterprises' office pursuant to that complaint. Subsequently, by letter of June 24, 1993, Ms. Bocek made a written demand on Michael Chillemi, Century 21 Chillemi Enterprises, for the return of her $375.00. After speaking with the owner by phone, and receiving his permission, Michael Chillemi did, on June 25, 1993, release from his escrow account and deliver to Ms. Bocek her deposit of $375.00, and by letter of the same date notified the Florida Real Estate Commission of the disposition of the deposit. The audit of June 24, 1993 While at the premises of Century 21 Chillemi Enterprises on June 24, 1993, petitioner's investigator conducted an audit inspection of Michael Chillemi's escrow account. That audit revealed that although Michael's escrow account balanced perfectly with the sums he should have in escrow, as it had on every prior audit of his office accounts, Michael did not have a written monthly statement-reconciliation document or form upon which was included the date the reconciliation was undertaken, the date used to reconcile the balances, the name of the bank, the name of the account, the account number, the account balance and date, deposits in transit, outstanding checks identified by date and check number, and which was signed and dated by the broker, as required by Rule 61J2- 14.012, Florida Administrative Code. Rather, Michael's practice was to utilize the back of his bank statement, together with a list of all pending contracts (which included the names of the parties, the date the transaction was to close, and the amount in escrow) and his check stubs, to reconcile his trust liability. These sources of information supplied the basic information required by Rule 61J2- 14.012, Florida Administrative Code, but the method employed to account for his trust liability did not result in one document reflecting the required information, and the reconciliation Michael did was not dated and signed. But for such failing, Michael's banking and accounting practices were deemed sound by petitioner's investigator.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding Christopher Chillemi not guilty of the allegations set forth in Count I of the Administrative Complaint, Michael Chillemi not guilty of the allegations set forth in Count II of the administrative complaint, and Michael Chillemi guilty of the allegations set forth in Counts III and IV of the administrative complaint. For the violations set forth in Counts III and IV of the administrative complaint it is recommended that Michael Chillemi receive a reprimand, and that he be directed to comply with the provisions of Rule 61J2-14.012(2), Florida Administrative Code, with regard to all future reconciliations. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of April 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April 1994.
Findings Of Fact At all times relevant hereto, respondent, Annette J. Ruffin, held real estate broker license number 0076385 issued by petitioner, Department of Professional Regulation, Division of Real Estate. When the events herein occurred, respondent was owner and broker for Century 21 A Little Bit Country at 915 Lithia Pinecrest Road, Brandon, Florida. She is presently employed by U. S. Homes Corporation in Tampa, Florida. James and Shirley Yaksic wished to sell their residence at 3512 Plainview Drive in Brandon, Florida. They listed their property with Century 21 Solid Gold Properties II, Inc. in Brandon in December, 1983. Deborah Cassidy was a salesman at respondent's office, and knew her parents, J. R. and Helen Anderson, were in the market for a new home. With Cassidy's assistance, the Andersons executed a contract on February 16, 1984, to purchase the Yaksics' residence. The contract called for a purchase price of $65,000 with a down payment of $10,000, including a $500.00 cash deposit which was given to respondent's firm several days after the contract was executed. The deposit was placed in Ruffin's escrow account on February 28, 1984. The Andersons were also required to seek VA financing on the balance owed. After the contract was accepted by the Yaksics on February 17, Helen Anderson made application on February 23 for a $55,000 VA loan with Norwest Mortgage, Inc., a lending institution in Tampa. Florida. Since her husband was in New York State, only Helen signed the loan application agreeing to allow verification of all representations made in the application. While filling out the loan application at Norwest, Helen Anderson learned that the Veterans Administration allowed applicants to apply for loans equal to 100% of the value of the property. Since the Andersons preferred to make no down payment, Helen Anderson wrote Norwest in early March requesting that their loan application be increased from $55,000 to $65,000. She also noted that she did not sign the "disclosure statement" on behalf of her husband since "it would be incorrect." In response to this Letter, Norwest wrote the Andersons in early April requesting a number of items needed to process the application as well as an amendment to the contract reflecting that the sellers agreed to 100% financing by the buyers. The Andersons did not respond to this inquiry. In addition, they never, advised the sellers that they had changed their loan application to 100% financing, and that the sellers would be required to pay more discount points at closing. Because no amendment to the contract was ever filed, Norwest processed the application for a $55,000 loan. Due to insufficient income and excessive obligations, the application was denied. The Andersons were so notified by letter dated May 3, 1984. After Helen Anderson received the denial letter she telephoned respondent's office manager on several occasions to seek a refund of her deposit. This information was apparently conveyed to Ruffin by the office manager. About the same time the sellers were advised by the listing salesman that the Andersons did not intend to close. On May 5, the sellers wrote a letter to Solid Gold requesting that it notify the selling broker to not "release the binder to the buyers as we are entitled to this money." For some reason, a copy of this letter was not mailed to respondent until May 31, and she received it in early June. Even though Ruffin may have been orally advised in early May of the Yaksics' intended claim by the listing office, she had no concrete evidence of this intention until she received their letter in early June. On June 29, 1984, Helen Anderson wrote respondent's office manager a letter requesting a return of her deposit no later than July 9. She also indicated the letter was being sent pursuant to instructions received from petitioner. On July 2, Ruffin replied by letter stating that "we cannot release your deposit as the house was off the market for such a long time," and that Norwest had advised her that the Andersons "did not bring in a lot of the information until it was too late." After Helen Anderson filed a complaint with the Department of Professional Regulation (DPR), DPR wrote respondent a letter dated July 19, 1984, stating in part that Anderson had been refused her deposit and that its records did not show that respondent had notified DPR of conflicting demands for that money. On July 30, 1984, respondent replied to DPR's inquiry and gave her version of the circumstances surrounding the transaction. After receiving no reply to this letter, she wrote a second letter in late December, 1984 to the Division of Real Estate (Division) requesting advice on the deposit matter. The Division sent a her form for requesting an escrow disbursement order on January 4, 1985 which was returned by respondent within a few weeks. An escrow disbursement order was eventually issued by the Division on April 19, 1985 directing her to refund the deposit to the Andersons. She did so on May 5, 1985. In conjunction with its investigation, DPR obtained copies of respondent's escrow account bank statements during the period when the Andersons' deposit was retained by Ruffin. Although the $500.00 deposit should have been maintained in that account from February, 1984 until disbursement in May, 1985, her account dropped below $500.00 on sixteen separate days during this period of time, and continuously from February 28 through April 30, 1985. Respondent, who has been a broker since 1977, maintained a record of all escrow deposits and expenditures in a ledger book which reflected when the Anderson money was deposited and when it was paid out. Although she inferred the problem may have been attributable to her bookkeeper, no adequate explanation was given as to why her bank balances dropped below $500.00 on a number of occasions. She acknowledged that she learned of the conflicting demands in May, 1984, but felt that she could still "solve" the credit problem of the Andersons. She stated that she intended to give notice to the Division of the conflicting claims on the deposit and needed no encouragement from the Division to do so. There is no evidence that respondent has ever been disciplined on any other occasion since first receiving her salesman license around twelve years ago.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the Conclusions of Law portion of this order. All other charges should be DISMISSED. It is recommended that respondent's broker license be suspended for ninety days and that she be fined $500.00. DONE and ORDERED this 5th day of September, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Bearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1985.
Findings Of Fact The Department rules on the Proposed Findings of Facts and Exceptions, submitted by the parties as follows: APPLICANT'S PROPOSED FINDINGS AND CONCLUSIONS Applicant's Proposed Findings numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 27, 28, and 29 are accepted to the extent that they are not inconsistent with the Findings of Fact rendered by the Hearing Officer. Applicant's Proposed Finding number 22 is accepted to the extent that factual matters are discussed. However, to the extent that it suggests that "public convenience and advantage" will be promoted by establishment of the trust company, the Department rejects this conclusionary statement as inconsistent with the Department's conclusion as to this criterion based on the reasons as discussed in paragraph three (3) contained in the Conclusions of Law of the Final Order. Applicant's Proposed Finding number 25 concerning the telephone survey has been dealt with in the Hearing Officer's Finding number 13, as adopted by the Department. Applicant's Proposed Finding number 26 concerns several counter- arguments addressing contentions proposed by the Protestants. As to (1) "Concentration", (2) "Dual Banking", and (3) "Siphoning of Capital". To the extent that no significant findings of fact, if any, were premised on these contentions, there is no necessity to respond. A portion of the Hearing Officer's Finding of Fact number 10, was excepted to, concerning the "concentration" argument, and will be treated below in paragraph 9. Number 4 concerning injury to existing institutions has been dealt with in the Final Order in paragraph 4 of the Conclusions of Law, as to the "reasonable promise". The Applicant's Conclusions of Law numbers 1, 4, 5, 6, 7 are accepted. Numbers 2, 3, and 8 are rejected as contrary to the Conclusions of the Final Order. PROTESTANT'S (FLORIDA BANKERS ASSOCIATION) PROPOSED FINDINGS Protestant's Proposed Findings numbers 1, 2, 3, 4, 5, 13, 18, 19, 20, 21, 23, 29, 30, 34, and 35 are accepted to the extent that they are generally consistent with the Hearing Officer's Findings or with the Final Order. Protestant's Proposed Findings numbers 6, 7, 8, 9, 10, 12, 14, 15, 16, 17, 22, 24, 25, 26, 27, 28, 31, 32, 33, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, and 47 are rejected to the extent that they are inconsistent with the Hearing Officer's Findings or with this Final Order, or are otherwise irrelevant or immaterial. APPLICANT'S EXCEPTIONS The Applicant's Exceptions numbers 1, 2, 3, 4, 5, 6, and 10 concern Proposed Findings that were not specifically referenced in the Hearing Officer's Report. However, they are generally consistent with the Hearing Officer's Findings and have been accepted by the Department to the extent that they are consistent with the Final Order. Exception 7, concerning Proposed Finding number 18, has been discussed above in paragraph 1. Exception 8, concerning Proposed Finding number 22, has been discussed above in paragraph 2. Exception number 9, concerning objection to portions of Finding of Fact number 10, is rejected. The first sentence of the Finding may speak in terms of "national trust business", but is viewed in terms of trust business throughout the nation. In no wise does it imply that there is a national market for personal trust business. The language should be viewed in the context of the overall finding. Exception number 10 is duly noted and reflected in the Final Order. Exception number 11 has been addressed in the Final Order in paragraph 4 of the Conclusions of Law as to "resonable promise." CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing was filed with the Clerk of the Department of Banking and Finance and that a true and correct copy of the foregoing was sent by Certified U.S. Mail, Return Receipt Requested, to: Thomas J. Cardwell, Esquire, Post Office Box 231, Orlando, Florida 32802; Robert A. White, Esquire, Aubrey Kendall, Esquire, and Paul Brenner, Esquire of the firm Mershon, Sawyer, Johnston, Dunwoody and Cole, 1600 Southeast First National Bank Building, Miami, Florida 33131; Howard A. Setlin, Esquire, 1111 Lincoln Road Mall, Suite 600, Miami Beach, Florida 33139; Bruce Culpepper, Esquire, 350 East College Avenue, Tallahassee, Florida 32301; Robert Asti, Esquire, 2400 First Federal Building, Miami, Florida 33131; Richard R. Paige, Esquire, Alfred I. DuPont Building, Miami, Florida 33131; Charles Cane, Esquire, 801 Hallandale Beach Boulevard, Hallandale, Florida 33009; and G. Kenneth Kemper, Esquire, 9999 N.E. 2nd Avenue, Suite 200, Miami Shores, Florida 33138, on this 24 day of January, 1980. FRANKLYN J. WOLLETT Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 (904) 488-9886
