Findings Of Fact The Florida Real Estate Commission presented evidence of the service of the Notice of Hearing upon Madison B. Graves, Esquire, 612 East Carson, Las Vegas, Nevada, 89101, as Counsel for Barbara Orcutt, by certified mail return receipt requested. Barbara Orcutt is presently a non-active broker; however, Barbara Orcutt was at the time in question in the Administrative Complaint a registered real estate broker with Gold Palm Realty Corporation, 1701 S. Federal Hwy., Boca Raton, Florida, 33632. Sigurd N. Hersloff was the owner of real estate described as 819 Lake Drive, Boca Raton, Florida. Hersloff contacted Jacqueline M. Winter, an associate broker with Gold Palm Realty, and advised her of his intent to sell said real property. Winter, in turn, mentioned the fact that Hersloff desired to sell his home to the Respondent, Barbara Orcutt. Orcutt stated to Winter that she (Orcutt) knew of a potential buyer for Hersloff's real property. David F. Young was advised by Orcutt of the availability for purchase of Hersloff's real property. Orcutt showed Hersloff's property to David F. Young, and subsequently David F. Young made an offer for purchase of Hersloff's real property for a purchase price of $76,200 putting up a $500 earnest money deposit. This proposal was presented to Hersloff in the presence of Winter. Hersloff was concerned and annoyed that Orcutt had received only $500 as an earnest money deposit. Hersloff told Orcutt that he did not consider $500 earnest money deposit sufficient compensation for taking his property off the market and advised Orcutt that Young would have to pay a full 10 percent of the $76,200 purchase price as earnest money deposit. Orcutt advised Hersloff that Young could not pay an earnest money deposit. Hersloff advised Orcutt that if Young could not pay the $7,620 earnest money deposit that he would accept a promissory note for the difference between the $500 and the $7,620. Orcutt left Hersloff and Winter presumably to return to Young to present Hersloff's objection to the contract for purchase. Orcutt later returned and spoke with Hersloff and Winter. She represented to Hersloff and Winter that she had obtained a promissory note from Young made out to Gold Palm Realty Corp. and that same would be deposited in Gold Palm Realty Corporation's escrow account together with Young's $500 earnest money deposit. Upon this representation Hersloff executed the contract for purchase presented by Orcutt in Young's behalf. The contract for purchase provided in part that Hersloff was to hold a second mortgage in the amount of $15,000 for a period of four months from the date of closing, said second mortgage to bear no interest. Young, who was in the process of selling real property in another state, became concerned that he might not be able to repay the second mortgage to Hersloff within the four months as stated in the contract. He spoke with Orcutt and asked her if she could obtain an extension of two months within which to pay the second mortgage. Orcutt represented to Young at that time that she did not anticipate that Hersloff would have any objection to such an extension. Subsequently in a conversation between Hersloff and Young, Hersloff determined that contrary to Orcutt's representation, she had not obtained a promissory note from Young. Young, at that time, learned that Orcutt had not mentioned a possible extension of the mortgage to Hersloff. On November 11, 1974, the Parties closed the transaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the registration of Barbara Orcutt as a non- active broker be suspended for a period of two years. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttman, III, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Madison B. Graves, Esquire 612 East Carson Las Vegas, Nevada 89101
The Issue Respondents' alleged violation of subsection 475.25(1)(a), 475.25(1)(c), and 475.25(3), Florida Statutes, as set forth in the Administrative Complaint. Inasmuch as Respondents were not represented by legal counsel at the hearing, the Hearing Officer explained their rights in administrative proceedings to James F. Catron who elected to represent himself and Cooke Catron Realty, Inc.
Findings Of Fact Cooke Catron Realty, Inc. is now and was at all times alleged in the Administrative Complaint a corporation registered as a real estate broker doing business at 5805 Margate Boulevard, Margate, Florida. Respondent James F. Catron is now and was at all times alleged in the Administrative Complaint a registered real estate broker and the active broker and officer of Cooke Catron Realty, Inc. (Stipulation) In January, 1976, Richard H. Goodwin, Jr. and Christine S. Goodwin, his wife, owned a four-unit apartment building at 7650 Southwest 10th Court, North Lauderdale, Florida, described as Lot 7, Block 13, Lauderdale North Park, Section 3. The Goodwins were having marital difficulties and decided to separate at this time and divest themselves of mutually-owned property. In a conversation with a salesman for respondents, Mr. Goodwin learned that James F. Catron was in the business of purchasing investment properties and reselling the same whereupon he would divide any profit with the former owner. Goodwin thereafter entered into negotiations with Catron for the sale of the apartment building. It was orally agreed that Catron would pay $62,700.00 for the property with a $1,000.00 down payment, and assume a first mortgage with Southern Federal Savings and Loan Association of Broward County in the amount of approximately $57,400.00 and a second mortgage with Seacrest Homes, Inc., John E. Abdo, Trustee, in the approximate amount of $5,300.00. It was further agreed that Catron would pay the Goodwins 30 percent of 80 percent of any net profit realized when he resold the property. As a consequence of this agreement, the Goodwins, on January 19, 1976, executed a deposit receipt contract embodying the above terms except that it recited the receipt of $10.00 as a deposit rather than $1,000.00, and made no mention of assumption of the mortgages. However, the sum of $1,000.00 was paid to the Goodwins by Catron. Although Mr. Goodwin testified that Catron signed this contract, Catron denied it and no such contract signed by Catron was placed in evidence at the hearing. (Testimony of R. Goodwin, C. Goodwin, Catron, Petitioner's exhibit 1) Mr. Goodwin, on January 19, 1976, executed a document authorizing Cooke Catron Realty, Inc. to collect rents from the tenants of the apartment building. Catron, anticipating consummation of the purchase, proceeded to collect rentals in the amount of approximately $800.00 per month for the next four and one-half months, for total collections of approximately $3,600.00. He also made some repairs to the property and paid utilities bills. The Goodwins believed that he would take steps to assume the two mortgages on the property and take over the payments thereon. Although Mr. Goodwin testified that he and his wife had executed a warranty deed and delivered it to Catron, Catron denied receipt of such a deed and it was not produced at the hearing. Accordingly, it cannot be found that such a deed was in fact executed and delivered. The rents were collected by a limited partnership called Forest Run, Limited, of which Catron was a partner. Although the February payments were made on the mortgages, they were discontinued when Catron discovered that he could not assume the second mortgage from Seacrest Homes, Inc. without payment of $1,000.00 to the trustee, Abdo. As a consequence, the Goodwins filed suit against the respondents in the Broward County Circuit Court on June 23, 1976, requesting that any agreements concerning the property be rescinded, and that an accounting be ordered and a receiver appointed to administer and manage the property in question. A receiver was appointed by the court. Thereafter, in August 1976, Southern Federal Savings and Loan Association filed suit to foreclose its mortgage on the property and obtained summary judgment in the Broward County Circuit Court on January 25, 1977. The property was thereafter sold at public sale and bought in by Southern Federal. On January 25, 1977, the suit of the Goodwins against respondents was dismissed by stipulation after the parties had reached an amicable settlement in the matter. (Testimony of R. Goodwin, C. Goodwin, Petitioner's Exhibits 2-4)
Recommendation That the charges against the respondents, James F. Catron and Cooke Catron Realty, Inc., be dismissed. DONE and ENTERED this 26th day of October, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James F. Catron and Cooke Catron Realty, Inc. 5805 Margate Boulevard Margate, Florida 33063
Findings Of Fact At all times relevant hereto John Young was registered as a real estate salesman by the Florida Real Estate Commission. On October 2, 1985 Respondent and William Kelly, D.O. entered into a contract to jointly purchase a condominium from Concord Developers Inc. (Exhibit 1). The contract provided for a down payment of $2,000 with an additional earnest money deposit of $3690 to be paid on or before November 4, 1985. Respondent and Kelly each gave the seller a check for $1000 at the signing of the contract and this $2000 was deposited in escrow with the escrow agent. Kelly met Respondent through Respondent's wife who worked in Kelly's office. At the time Kelly was looking for income tax shelters and this purchase appeared to qualify for that purpose. On November 9, 1985, Kelly made out a check payable to John Young in the amount of $1845 which represented Kelly's half of the additional $3690 earnest money deposit. This check was either cashed by Young or deposited in Young's bank account (Exhibit 2). The additional earnest money deposit was not made to the seller, as required by the contract, Exhibit 1. Young notified Bayside Federal Savings and Loan Association, who was to finance the sale, that the loan application was withdrawn, the transaction was cancelled, and two checks in the amount of $1000 each were returned to the seller by the escrow agent (Exhibit 6). The customary practice of the seller in such a situation was to return the down payment to the buyer by check drawn on the seller's account. While no witness could recall this specific transaction, the usual practice would be to return the deposit to the buyer. In this case, the deposit would normally have been returned to Young. Young acknowledged that he received the return of his $1000 deposit but not the $1000 that represented Kelley's portion of the down payment. When Kelley gave Young the check for $1845 he inquired if it was necessary for him (Kelley) to attend the closing and Young advised him it was not. When Kelley subsequently learned that the transaction did not close, he demanded the return of his money. To date he has received none of the monies he deposited to purchase this property. Evidence was presented that in December 1985, Young closed on a condominium he and his wife had contracted to purchase in this same development, and subsequently moved into this unit. While this indicates Young had the opportunity to convert Kelley's contribution to the purchase of the condominium by Young and his wife, no credible evidence was presented that he did so. The evidence that was presented regarding this transaction was that Young was able to move into that unit with a total cash outlay of less than $500. Young accounted for the $1845 check from Kelley as payment of a bet between him and Kelley on one football game. In rebuttal Kelley testified that not only did he not bet with Young on any matter, but also he has never gambled on a football game in his life. Young's testimony that a $1845 bet was made on a football game is so unbelievable that it taints all of his testimony.
Recommendation That the Real Estate license of John Young be revoked. Entered this 2nd day of June, 1989, in Tallahassee, Florida. K. N. AYERS 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 2nd day of June, 1989. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Post Office Box 1900 Orlando, Florida 32801 Robert H. Dillinger, Esquire 5511 Central Avenue St. Petersburg, Florida 33701 Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0729
Findings Of Fact The Respondent, Robert Watson, Jr., is a real estate broker-salesman, having been issued license Number 0093690. He resides and has his business in Jacksonville, Florida. On or about September 1, 1978, the Respondent negotiated and drafted a contract for sale of a certain piece of residential real estate, the purchaser for which was one Mr. Lacy Cole. The Respondent was Mr. Cole's broker in that transaction. The Respondent informed Mr. Cole that he would have to pay a two- hundred-dollar deposit as prospective buyer pursuant to the deposit receipt, sales contract agreement drafted by the Respondent. Mr. Cole did not pay the entire two-hundred-dollar deposit, but he did pay the Respondent sixty-five dollars. The closing was held October 20, 1978, at which time Mr. Cole's attorney directed the Respondent to pay Mr. Cole a two-hundred-dollar refund as the contract for sale provided that financing would be through the Veterans Administration and that in such a Veterans Administration sponsored transaction the buyer is precluded from paying closing costs. Mr. Cole cashed the two- hundred-dollar check in good faith and later was informed that the Respondent had stopped payment on it, which resulted in Mr. Cole having to make the check good. The Respondent has failed to recompense Lacy Cole for the sixty-five- dollar deposit he had already paid pursuant to the contract for sale drafted by the Respondent. Mr. Watson has also never repaid the two hundred dollars which Mr. Cole had to expend in order to provide payment on the two-hundred-dollar check on which the Respondent had stopped payment. In response to the Petitioner's demonstration that the Respondent had obligated Mr. Cole for a two-hundred-dollar "binder or closing costs" which he was not obligated to pay under Veterans Administration policy, the Respondent stated that he wrote the contract with the two-hundred-dollar binder with the understanding that Cole would pay a portion of it at the first of each month until it was paid and that he only received a total of sixty-five dollars from Cole. The seller agreed to sell the property to Mr. Cole anyway. The Respondent maintained that he merely told Mr. Cole at the closing that he would write him a two-hundred-dollar check and deliver it to him at closing with the understanding that Cole would deliver it back to him immediately afterward to keep from confusing the attorney." The Respondent, however, failed to refute the showing by the Petitioner that the Respondent attempted to obligate that purchaser to pay two hundred dollars in "closing costs" which he was not legally obligated to pay and for which the seller of the property was responsible in the first place. The Respondent adduced no evidence contrary to that of Petitioner which established that, after being informed by the attorney that Mr. Cole was not responsible for any deposit or closing costs, the Respondent still retained the sixty-five dollars paid him as earnest money by Mr. Cole and, further, that after stopping payment on Cole's refund check, causing Mr. Cole to incur two hundred dollars additional expense for which he was not obligated, the Respondent failed to recompense Cole. There is thus no question that the Respondent misrepresented to his client, Mr. Cole, the obligations and expenses Mr. Cole would have to incur in order to purchase the property and thus, in effect, wrongfully obtained two hundred sixty-five dollars from Mr. Cole. On or about September 16, 1978, Mrs. Joanne Wesley deposited a ten- dollar check with the Respondent as a partial deposit for a down payment on a home. On or about September 20, 1978, she deposited an additional one-hundred- dollar check with the Respondent as further deposit on the same contract for sale and purchase which the Respondent had at that time not yet drafted. The Respondent never made an appropriate deposit of the above referenced checks in his escrow account, but, instead, cashed them for his personal use. On or about October 25, 1978, the contract for sale and purchase was finally drafted by the Respondent. On approximately December 4, 1978, Mrs. Wesley deposited with the Respondent an additional check for eight hundred fifty dollars as the final installment of her deposit money with regard to the proposed purchase of the home. On December 29, 1978, Mrs. Wesley learned that she had failed to qualify for FHA financing with regard to the above-referenced contract and, after looking at another home which was not to her liking offered to her by the Respondent as a "replacement dwelling," finally requested the refund of her total deposit of nine hundred sixty dollars. The Respondent then requested Mrs. Wesley to wait until January 2, 1979, for that refund and on January 2, 1979, tendered to her four hundred dollars cash as partial reimbursement. On January 3, 1979, the Respondent tendered to her an additional three hundred dollars cash and drew and delivered to her his escrow check, post-dated to January 10, 1979, in the amount of two hundred fifty dollars. That escrow account check was returned for insufficient funds. On February 1, 1979, Mrs. Wesley's attorney made demand on the Respondent for payment of the two hundred fifty dollars outstanding, represented by the invalid check. On approximately February 3, 1979, the Respondent ultimately paid the two hundred fifty dollars due Mrs. Wesley. Thus, at that point the Respondent had refunded nine hundred fifty dollars of the nine hundred sixty dollars in deposit money due Mrs. Wesley. The entire refund had become due on December 29, 1978, when it was learned that she could not qualify for FHA financing with regard to the proposed purchase, which qualification for financing was a condition precedent to performance of the contract. In his defense the Respondent stated that he attempted to arrange the purchase of another dwelling for Mrs. Wesley upon learning that she could not qualify for financing on the subject property and that he retained her deposit money in his escrow account for that reason and ultimately repaid it to her, although after over a month's delay. The Respondent contended that he had opened the subject account as a business account when he was doing appraisal work and had not considered it to be an escrow account and "did not know when they switched it over to escrow." The Respondent did acknowledge that he had used this escrow account as his business account and commingled personal and business operating funds in it and made withdrawals from time to time for business and personal reasons. With further regard to the Cole transaction, the Respondent contended that he felt it was customary for a veteran to pay two hundred dollars closing costs and even when he learned the veteran was not obligated to pay closing costs in such a transaction, that he still felt it was "customary as earnest money" even though the seller obviously was obligated to pay closing costs. The Respondent also testified that as of the time of the hearing and for an indeterminant period of tinge before the hearing, he had terminated active practice of real estate brokerage and was mostly performing appraisal work. There is thus no question that the Respondent informed Mr. Cole that he was obligated to pay two hundred dollars "earnest money" or "closing costs" and that his actions forced Mr. Cole to incur the two-hundred-sixty-five dollar expense described above, even after the Respondent was informed by the closing attorney that the purchaser was not obligated for those expenses. There is no question with regard to the Wesley transaction that he delayed an inordinate amount of time in refunding her deposit money after the condition of financial qualification for the purchase did not occur, and, further, that he commingled these purchaser deposit funds in his escrow account with personal and business funds and used a portion of them for personal purposes.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED that the license of Robert Watson, Jr., as a real estate broker in the State of Florida be REVOKED. DONE AND ENTERED this 1st day of February, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February 1982. COPIES FURNISHED: Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Robert Watson, Jr. 9527 Abedare Avenue Jacksonville, Florida 32208 Frederick B. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact By contract dated March 13, 1974 Frederick W. and Judith P. Shaw placed $500 as earnest money to purchase property from Comfort Builders, Inc. represented by Giles Realty. The $500 was duly placed in escrow. The contract provided that seller would furnish title insurance and buyer could take posession on April 1, 1974. Buyer occupied the house as per the contract and delayed the initially intended closing to require the builder (seller) to correct defects. Shortly after the contract was executed buyer paid seller an additional $3,000 of the purchase money. This payment did not go through Giles. At the first closing session on May 15, 1974 a subcontractor's lien was discovered and the closing did not occur. At a second scheduled closing additional liens against the property were discovered. The $500 check representing buyers' deposit that had been forwarded by Giles to First Federal Savings and Loan Association, who was to loan the mortgage money, was returned to Giles by letter of October 10, 1974 advising that they were unable to make the mortgage. Subsequently the bank, which had also provided the construction mortgage money, foreclosed on the mortgage and took title to the property. Thereafter on March 21, 1975 the bank sold the property to Shaw who had occupied the premises since April, 1974. After the property had been conveyed by the bank to Shaw, Giles prepared a Release of Deposit Receipt which was executed by Comfort Builders, Inc., the original seller, to allow the $500 deposit to be retained by Giles. When asked to execute this release Shaw declined. Whether Giles told Shaw that she had asked the FREC for an advisory opinion respecting the $500 as Shaw testified or only that she would ask for an advisory opinion as testified to by Giles is immaterial as no advisory opinion was requested by Giles. Thereafter Shaw filed a complaint with FREC which led to the charges here under consideration. When this complaint was being investigated by Kimmig, Giles asked Kimmig for an advisory opinion and she was told she would have to request same from the Commission. Several years earlier Giles had obtained an advisory opinion by submitting a written request to the Commission, but no such request was submitted by Giles respecting the disposition of the $500 deposit of Shaw. The $500 has not been disbursed from the escrow account. Mrs. Giles has been registered with the FREC for some 20 years and these are the first disciplinary proceedings ever brought against her. Exhibit 10 contains numerous achievements and recognitions received by Mrs. Giles showing an excellent reputation in the community.
The Issue Whether the license #16-7170-H of Robert A. Rinehart should be suspended or revoked, or whether a civil penalty should be assessed.
Findings Of Fact The Respondent, Robert A. Rinehart, trading as 629 Apartments, was at all times pertinent to this cause licensed as a public lodging establishment, holding license control #16-7170-H. A notice to show cause and notice of hearing' was served upon Respondent Rinehart, notifying him that certain evidence had been presented which, if true, was good and sufficient reason to cause his license to be suspended or revoked or to have a fine assessed against him. The Notice to Show Cause indicated also that an administrative hearing would be held to which the Respondent would receive notice, and was dated December 5, 1978. No answer was filed to the Notice to Show Cause. The Notice of Hearing was mailed April 26, 1979, and was returned. The Respondent did not appear at the administrative hearing or send a representative to testify in his behalf. It is found that the address to which the Notice of Hearing was sent was the same address as provided on the existing license held by Respondent, which is active until December 1, 1980. This address is the same address as indicated on the standard form apartment lease entered into evidence as Petitioner's Exhibit 2. The Respondent is under obligation to keep the Petitioner Division advised of his current address to be shown on his official records in the Division of Hotels and Restaurants, Department of Business Regulation, State of Florida. In December of 1976, Respondent Rinehart rented, or permitted his agent to rent, an apartment in 629 Apartments to Carol Miller. Ms. Miller was required to pay a security deposit in the sum of $100.00 shortly after renting the apartment, and later paid an additional security deposit of $35.00 upon acquiring a pet. Subsequently Ms. Miller moved from the apartment after personally notifying Respondent Rinehart of her intent to vacate the rented premises at a time in excess of thirty (30) days before the intended date of her departure. Ms. Miller then again informed Respondent of her intent to move and requested that he give her an address where he could be contacted and to also return her security deposits, however Respondent did not do so. Ms. Miller moved from the licensed premises in September of 1978, and has not received her security deposits, nor has there been a claim submitted by Respondent Rinehart for the deposit. Entered into evidence was a typed rental agreement and a receipt for various sums of monies growing out of the rental agreement with Respondent Rinehart. The testimony of Carol Miller, together with the evidence submitted, is sufficient to show that Respondent Rinehart in fact received security deposits from Ms. Miller as a tenant and failed to return said security deposits to her or to make a claim against them. A proposed recommended order was submitted by the Petitioner Division, and this instrument was considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that a civil penalty be assessed in the amount of $250.00 to be imposed upon the Respondent, Robert A. Rinehart t/a 629 Apartments. DONE and ORDERED this 31st day of August, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Robert A. Rinehart t/a Department of Business 629 Apartments Regulation 629 NE 5th Avenue 725 South Bronough Street Fort Lauderdale, Florida Tallahassee, Florida 32301
Findings Of Fact Kenneth M. Olson, Jr., is a registered real estate broker with the FREC and Active Firm Member of Olson and Associates Real Estate, Inc., a corporate broker registered with the FREC. A copy of the Administrative Complaint was forwarded to the last address of Defendants registered with the FREC by certified mail numbers 4747 and 4748 and the notice of hearing was forwarded to the same address by certified mail numbers 4613 and 4614. Accordingly the Hearing Officer had jurisdiction over the Defendants and the offenses. By contract dated September 17, 1975 (Exhibit 6) Joseph J. Pillucere contracted to purchase real property from Paul L. Nave. The contract provided, inter alia, for a $500 earnest money deposit, $9500 down payment at closing with purchaser to assume existing first mortgage of approximately $28,000; and the seller taking back a purchase money second mortgage in the amount of $17,000. Thereafter, at the time scheduled for closing, the purchaser failed to produce the additional down payment required, execute the second mortgage and assume the existing first mortgage. After receiving conflicting demands from buyer and seller for the return of the earnest money deposit Defendant requested an advisory opinion from the FREC in accordance with Section 475.25(1)(c) FS. On May 13, 1976 an advisory opinion (Exhibit 5) was given by FREC to the Defendant, with copies to both parties to the contract, advising Defendant that the earnest money deposit should-be disbursed to the seller. The deposit has been disbursed to neither party to the contract.
The Issue The Administrative Complaint presents essentially the same factual allegations in its various counts supporting different legal violations. These factual allegations are summarized as follow: Reinlie represented to Estelle Pitts that if she put up the earnest money deposit for her son, William Lambert, on the commercial property that Lambert wanted to purchase in the form of notes secured by mortgages on her house: (1) the mortgages and notes would not be a lien on her property; (2) the mortgages and notes would not be recorded; (3) the mortgages and notes would be returned to her when Lambert obtained financing for the property he desired to purchase; (4) the mortgages and notes merely showed good faith on Lambert's part regarding his offer to purchase; (5) Lambert's contract for purchase was contingent upon the sale of commercial property which he owned in South Florida; and (6) even if the sale to Lambert did not go through, Mrs. Pitts would not be responsible for the mortgages and notes. Contrary to his representations, Reinlie recorded the various mortgages and notes executed by Estelle Pitts. Contrary to his representations, Reinlie advised Estelle Pitts that she would be responsible for the mortgages and notes, and that if said notes were not satisfied "foreclosure proceedings would be initiated." Petitioner called Estelle Pitts, who testified concerning the representations made by Reinlie. Reinlie testified, denying that he had made said representations. William Lambert was the only other person present when most of these alleged representations were made. Lambert, who had suffered a physically debilitating stroke, could not attend the hearing, and his deposition was received into the record. Lambert's recollection of the events was wholly supportive of neither his mother's nor Reinlie's recollection of the events. None of the witnesses were disinterested: Reinlie's license was in jeopardy; Mrs. Pitts' home was in jeopardy; and Lambert is Mrs. Pitts' son. The conflicts in testimony can only be resolved from extrinsic facts and the credibility of the witnesses. Having considered the facts, the testimony of Reinlie is deemed more credible. Both parties submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The following Findings of Fact are based upon the prehearing stipulation of the parties: At all times in question, the Respondent, James Reinlie, Jr., was a registered real estate broker in the State of Florida and is the holder of license number 0112757. The parties were duly noticed pursuant to the provisions of Chapter 120, Florida Statutes (1981). William C. Lambert, Estelle Pitts' son, did not have the necessary money with which to furnish a deposit to the sellers of the Robin Hood Motel at the time the contract for sale and purchase and the addendums thereto were executed. A contract for sale and purchase was executed on August 11, 1979, and August 13, 1979, between Irene B. Smith, seller, and William C. Lambert, Sr., buyer, for the purchase of the Robin Hood Motel, located at 1150 North Atlantic Avenue in Daytona Beach, Florida. Respondent Reinlie was a co-broker on that contract. On August 13, 1979, an addendum to the contract for sale and purchase was executed between Irene B. Smith, seller, and William C. Lambert, Sr., buyer. On January 7, 1980, and January 8, 1980, a second addendum was executed under the original contract for sale and purchase between Irene B. Smith, Gilbert Brown and Liselotte M. Brown, sellers, and William C. Lambert, Sr., buyer. On August 13, 1979, a mortgage deed and mortgage note were executed by Estelle Pitts and Linda L. Smith (Mrs. Pitts' daughter) as mortgagor, to B.I.C. Realty, Inc., escrow account, as mortgagee, said note in the principal amount of $5,000 and secured by a first mortgage on 900 West New York Avenue, Deland, Florida, also known as: . . . the east 60' of the north 150' of Lot 1, Block I, Stetson Home Estates MB 10, page 79, Volusia County, Florida; Said property is the residential home of Estelle Pitts with title in the names of Estelle Pitts and Linda L. Smith. On October 16, 1979, a second mortgage was executed by Estelle Pitts and her daughter, Linda L. Smith, dated November 1, 1979, and secured by a mortgage note in the amount of $5,000 on the residential home of Estelle Pitts, said property being described in detail in paragraph 7 above. On October 16, 1979, a third mortgage was executed by Estelle Pitts and her daughter, Linda L. Smith, dated November 1, 1979, and secured by a mortgage note in the amount of $5,000 on the residential home of Estelle Pitts, said property being described in detail in paragraph 7 above. On August 17, 1979, Respondent Reinlie took the first mortgage deed and mortgage note to The Abstract Corporation and instructed that it be recorded in the public records of Volusia County, Florida, said first mortgage deed and mortgage note in the amount of $5,000 dated August 11, 1979, and executed August 13, 1979. On November 29, 1979, Reinlie took the second mortgage deed and note to The Abstract Corporation and instructed that it be recorded in the public records of Volusia County, said second mortgage deed and note in the amount of $5,000 dated November 1, 1979, and executed October 16, 1979. On December 4, 1979, Reinlie took the third mortgage deed and note to The Abstract Corporation and instructed that it be recorded in the public records of Volusia County, said third mortgage deed and note in the amount of $5,000 dated December 1, 1979, and executed October 16, 1979. On May 2, 1980, Estelle Pitts notified Reinlie that she wanted the aforesaid mortgages and notes returned to her immediately. On May 14, 1980, Reinlie notified Mrs. Pitts that he would not return the mortgages and notes and had been advised by the "former" owners of the Robin Hood Motel that they desired to pursue their full deposit, plus expenses, under the contract and, if necessary, would foreclose the mortgages and notes in order to enforce their legal rights. On May 19, 1982, Reinlie executed three satisfactions of mortgages on the three mortgages and notes referred to in paragraphs 7, 8 and 9 above upon the advice of counsel. The following Findings of Fact are based upon testimony and evidence adduced at the hearing: Reinlie did not state to Mrs. Pitts that the mortgages would not be recorded and would not be a lien on her property. (See Lambert deposition, pages 11 and 12.) William Lambert was aware that the mortgages and notes were to be recorded and would be a lien on his mother's property. Mrs. Pitts did not understand the transaction and the terms thereof, although Lambert explained it to her. (See Lambert deposition, page 13.) The contract for purchase was not contingent upon the sale of Lambert's motel in Hollywood, Florida. Lambert signed the contract and was presumably aware of its terms. Reinlie did not represent to Mrs. Pitts that the contract for purchase was contingent upon the sale of her son's motel in Hollywood. (See transcript, page 20.) It was Lambert's intent to replace the mortgages on his mother's home with cash he would obtain from the sale of his motel in Hollywood. By substitution of the cash for the mortgages and notes, it was Lambert's understanding that his mother's home would not be "used," i.e., that her home was not in danger of foreclosure. However, Lambert realized that the money would have to be substituted for the mortgages and notes. Lambert felt that he could sell his Hollywood motel prior to the closing date on the Robin Hood Motel. Had Lambert sold his motel in Hollywood prior to said closing, the mortgages and notes on his mother's house would have been cancelled, i.e., "returned" to her. Lambert initially advised Reinlie that his mother owned her home free and clear. At that time, both Lambert and Reinlie were seeking the means for Lambert to come up with the earnest money deposit, which does show a "good faith offer." Reinlie suggested the use of Mrs. Pitts' home to secure the deposit. Lambert discussed this matter with his mother, who agreed and executed the various mortgages and notes. Reinlie did not make the primary approach to Mrs. Pitts, and it was Lambert who primarily explained the transaction to her. Both Lambert and Mrs. Pitts stated that they failed to understand the terms and effect of the mortgages and notes. The addendum to the contract provides that the buyer will provide the seller within five days of the date of the contract a mortgage title binder showing the $5,000 deposit mortgage to be a first mortgage. Their failure to understand the transaction was not due to any misrepresentations or lack of explanation to them by Reinlie. The original closing date was set for late October 1979. When Lambert was unable to sell his Hollywood motel, Reinlie arranged for extensions of the closing date, the first until early December, and the second until January 1980. The considerations for these two extensions were the second and third mortgages and notes. After these were prepared, without signatures, they were delivered to Lambert, who in turn returned each of the executed documents to Reinlie shortly before Reinlie recorded them. Reinlie was not present when said mortgages and notes were executed. Around Thanksgiving 1979, when it became evident that Lambert was having difficulty closing, Reinlie suggested that the contract, which was similar to an option, be sold. Although the contract would have had to be discounted, it would have reduced the potential loss. Reinlie attempted unsuccessfully to do this. Reinlie's suggestion of this course of action did not assure the sale of the contract. (See transcript, page 91.) By late January 1980, when Lambert could not close, Reinlie attempted to obtain an additional extension, which the sellers refused to grant. At that time, the contract for purchase was in default. In the spring of 1980, the sellers made demand upon Reinlie for their deposit money. Reinlie advised both Lambert and Mrs. Pitts of the sellers' demand and sought to obtain mortgage financing for Mrs. Pitts in lieu of initiating a foreclosure action. Mrs. Pitts did not elect to borrow the money. Lambert tendered $5,000 to Reinlie in order to settle the matter, which was rejected by the sellers. The sellers renewed their demand that Reinlie pay them their escrowed deposit. In a meeting with the sellers, Rein lie pointed out that if he foreclosed the mortgages there would be additional delay and legal costs. Because the notes had an interest rate of ten percent and were secured by the mortgages, Reinlie suggested that nothing be done during the life of Mrs. Pitts, but a claim be made against her estate. The sellers determined that this was a better approach than forcing Reinlie to foreclose on the mortgages. Thereafter, all of the parties determined that they desired to settle the matter. Reinlie advised the sellers that he would release the mortgages and notes to Mrs. Pitts if they, in turn, would release him from his obligation to pay them the escrowed money. This was finally done and the matter resolved on that basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law that the Respondent, James Reinlie, Jr., did not violate Sections 475.25(1)(b), (d) or (j), Florida Statutes, it is recommended that the charges filed against him in the Administrative Complaint be dismissed. DONE and RECOMMENDED this 25th day of May, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 25th day of May, 1983. COPIES FURNISHED: John G. DeLancett, Esquire James R. Mitchell, Esquire 801 North Magnolia Avenue, Suite 402 Post Office Box 6171-C Orlando, Florida 32853 Irving Gussow, Esquire Highway 17-92 Post Office Box 965 Fern Park, Florida 32730 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 =================================================================
Findings Of Fact The Respondents at all times pertinent hereto are licensed real estate brokers having been issued, in the case of Lorraine B. Anthony individually, license number 0123486, and in the case of Lorraine Anthony Realty, Inc., as a corporate broker, license number 0181092. At all times pertinent hereto, Respondent Lorraine B. Anthony was licensed and operating as a real estate broker and the sole "qualifying" broker and officer of Respondent Lorraine Anthony Realty, Inc. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes and appurtenant rules governing the licensure standards and practice standards for real estate brokers, broker salesmen and salespersons in the State of Florida and conducting disciplinary proceedings inconnection therewith. On or about May, 1982, Mr. Leif Rosenquist journeyed to Lee County, Florida from his native Sweden with the intention of purchasing real property for the purpose of building a residence for himself and his wife. He became acquainted with Ida Chacko, a real estate salesperson operating in Lee County, Florida, and ultimately entered into a real estate sales contract partly at her behest. Ida Chacko was not then employed by the Respondent, Lorraine B. Anthony nor the Lorraine Anthony Realty, Inc. Mr. Rosenquist gave Ida Chacko approximately $10,000 to place in an escrow account for him in order to effect a deposit and down payment on that real estate purchase. This transaction ultimately did not occur. Ida Chacko, however, retained $7,000 of those funds which were placed in an escrow account with Tri-County Title Company in approximately May of 1982. Shortly thereafter Ms. Chacko became an employee and salesperson with the Respondents real estate firm, with the Respondent Lorraine Anthony as her managing broker. In approximately August, 1982, Mr. and Mrs. Rosenquist entered into a "deposit, receipt and sales contract" with Santa Barbara Development Corporation and Thomas Romano, its president, for the purchase of a piece of property upon which they wished Mr. Romano to construct a duplex which they would use as their residence. The transaction was arranged by Ida Chacko. Mr. Romano owned that property and contracted with the Rosenquists to construct the dwelling. The contract terms required the payment of a $500 earnest money deposit to Mr. Romano and Santa Barbara Development Corporation. Ida Chacko assured Mr. and Mrs. Rosenquist that the $500 earnest money deposit required by the contract would be paid to Mr. Romano from the $7,000 escrow account which she maintained on their behalf. In fact, Ms. Chacko had, prior to that time, withdrawn the $7,000 from the escrow account with Tri-County Title Company for unknown purposes. Further, Ms. Chacko never paid over the $500 earnest money to the Respondent's escrow account nor to Mr. Romano or Santa Barbara Development Corporation. The contract, moreover, was contingent in its terms on the Rosenquists being able to obtain financing at terms stated on the face of the contract, secured by a mortgage with Barnett Bank. The Rosenquists however, were unable to secure compatible financing in accordance with the contractual terms regarding that financing and so that contingency was never satisfied and the Rosenquists elected to never consummate that transaction. That contingency never being satisfied, the Rosenquists never actually defaulted on the contract. Moreover, during the pendency of the Rosenquists attempts to obtain the financial arrangements with Barnett Bank, the time period stated in the contract during which it could be enforceable, expired. Pursuant to a later contract entered into September 26, 1982, the real estate involved in the Rosenquist transaction was sold to Ida Chacko's daughter. Mr. Romano sold her the property and ultimately constructed a duplex dwelling for Ms. Chacko's daughter on that property according to the same construction plans referenced in the Rosenquist contract and for a higher purchase price. He thus incurred no financial detriment caused by the failure of the Rosenquist transaction, nor did the Santa Barbara Development Corporation. Some two months after the failure of the Rosenquist transaction, Mr. Romano sought payment of the $500 earnest money deposit he believed he was due from the Respondent Lorraine B. Anthony and Lorraine Anthony Realty, Inc. She initially refused to pay him the $500. The Respondent had no knowledge that the Rosenquist's agreement had been entered into, knew nothing of its particulars, nor of any representations made by any of the parties to the agreement, nor Ida Chacko, until approximately two days after the contract was executed. She learned of the contract when her office manager, Ellen Smith, told her that no earnest money deposit had been obtained on that contract. She immediately instructed Mrs. Smith to ascertain that an earnest money deposit was immediately obtained according to the terms of the contract. After later consulting with Ida Chacko and learning that the transaction never reached fruition, she did not inquire further concerning the earnest money deposit or other particulars regarding that transaction, believing that she had no reason or duty to do so. The Respondent, Lorraine B. Anthony never met with the Rosenquists nor discussed any facet of the transaction with them nor made any representations to them with regard to the transaction. She never discussed the transaction or made any representations regarding it to Mr. Romano, until he finally demanded the $500 earnest money deposit some two months after the failure of the contract with the Rosenquists and after the consummation of the second contract with Ida Chacko's daughter. The Respondents had had a successful business relationship with Mr. Romano prior to these occasions and desired to continue such relationship and therefore, in an abundance of caution, ultimately paid the $500 to Mr. Romano. He has no claim presently pending against the Respondents. Helen Smith, the Respondents' office manager, established that it was the Respondents' consistent policy to always obtain an earnest money deposit contemporaneously with the execution of a real estate sales contract in which she or her agents were involved, and to deposit such money in her escrow account. Ida Chacko was well aware of this policy at the time the Rosenquist transaction was entered into, but never obtained the earnest money deposit either directly from the Rosenquists nor carried out her assurance to the Rosenquists that she would obtain the required $500 earnest money deposit from the $7,000 "escrow account" supposedly on deposit on their behalf with Tri- County Title Company (or another unidentified party). The $7,000 which Ms. Chacko had on deposit on behalf of the Rosenquists was obtained before she was ever employed with the Respondents' firm as an agent of the Respondent and the Respondent never knew of the existence of those funds. The only connection Respondent and her firm had with this transaction and her only representation made with regard to this transaction was that Mrs. Smith should make sure that agent Chacko placed the $500 earnest money deposit in the proper escrow account in favor of Mr. Romano and Santa Barbara Development Corporation. In any event the Respondents never received the $500 earnest money deposit. The only representation made to the Rosenquists with regard to the earnest money deposit was that of Ida Chacko to the effect that she would pay it over to the Respondents' escrow account from the funds she supposedly had on deposit on the Rosenquists' behalf, which of course, she failed to do. Neither the Respondent, Lorraine B. Anthony, nor any of her agents, ever represented to Mr. Romano or Santa Barbara Development Corporation that the $500 was held on deposit on his behalf or otherwise. Finally, because the Respondents never received the $500 deposit, they could not possibly have return edit to the purchasers without the prior knowledge or consent of the seller, as alleged in Count II of the Complaint. In summary, the Respondent instructed her office manager to see that Ida Chacko received the deposit money and placed it in the escrow account at the time she believed the contract to be valid and enforceable and Ida Chacko failed to comply, thus flouting the Respondent's clearly defined office policy regarding the escrowing of deposit money, of which policy Ida Chacko was previously well aware. The Respondent had had prior and subsequent difficulties with Ida Chacko concerning her failure to follow this and other office policies required by the Respondents. The Respondent only learned definitely that no deposit money had been received nor deposited in her escrow account, approximately two months after the contract was executed and long after the contract was automatically cancelled. She at no time received any commission related to any transaction involving the subject parcel of real property. She never made any representations of any kind to any of the parties to the deal.
Recommendation Having considered the foregoing Findings of Fact and 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 against Lorraine B. Anthony and Lorraine Anthony Realty, Inc. be DISMISSED in its entirety. DONE and ENTERED this 30th day of April, 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 30th day of April, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 Harvey Rollings, Esquire PAVESE, SHEILDS, GARNER, HAVERFIELD, DALTON & HARRISON Post Office Box 88 Cape Coral, Florida 33910 Harold Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented is whether Respondents are guilty of the allegations contained in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken against them, if any.
Findings Of Fact At all times material hereto, Respondent Lori Wilk has been a licensed real estate broker in the State of Florida, having been issued license number 0349551. The last license issued was as a broker in care of Stars and Stripes Realty, Inc. At all times material hereto, Respondent Stars and Stripes Realty, Inc., has been a corporation registered as a real estate broker in the State of Florida, having been issued license number 0253076. At all times material hereto, Respondent Wilk has been licensed and operating as a qualifying broker and officer of Respondent Stars and Stripes Realty, Inc. Gwendolyn Taylor-Herbert, as owner, had listed for sale certain real property with Coldwell Banker Residential Real Estate, Inc./Gil Amara. Respondents obtained LPS Investments, Inc., as purchaser pursuant to a sales contract which was accepted by the seller on March 14, 1989. LPS Investments is owned by Leo and Patricia Scarola. Patricia Scarola was a former salesperson for Respondents. That Contract for Sale And Purchase of Real Property provided that a total of $500 as deposit monies was to be held in escrow by Stars and Stripes Realty. Respondent Wilk executed the portion of the Contract which acknowledged receipt of the first $100 of the deposit monies. Respondents' escrow account deposit slips reveal the first $100 was deposited into Respondents' escrow account. No proof of receipt of the additional $400 exists among the escrow account deposit slips admitted in evidence; however, Respondent Wilk's testimony is accepted that Respondents received in trust a total earnest money deposit in the sum of $500. Thereafter, LPS Investments, Inc., refused to close, alleging misrepresentation by the seller of the property. Although the property had been advertised as a "handyman special" and the Contract provided that the property was accepted in an "as is" condition, the Scarolas who never saw the property before they entered into the Contract to purchase it discovered that it would cost more to improve the property than they had guessed. They decided not to close. Rather, Pat Scarola instructed Respondents to transfer the $500 earnest money deposit to another piece of property not involving Gwendolyn Taylor- Herbert. Without the prior knowledge or consent of the seller or of the listing broker, Respondents transferred the Scarolas' earnest money deposit to another transaction for the benefit of the purchaser (LPS Investments, Inc.) and not involving the same seller. This was done without even considering whether the seller or the seller's agent might have an interest in the deposit. At no time prior to the time that the Respondents' transferred the deposit to a different property did the Respondents give the listing broker or the seller an opportunity or notice to make a demand upon the Respondents for the deposit. After the transfer, and after the contract failed to close, the seller and the seller's agent made a demand that the $500 deposit be accounted for and delivered. It was not. On June 1, 1989, Respondents obtained an offer from Herb Sider, as purchaser, for the property owned by Gwendolyn Taylor-Herbert. That offer was accepted by the seller. The Contract for Sale and Purchase of Real Property provided that a total deposit of $1,000 was to be held in escrow by Stars and Stripes Realty. Respondent Wilk executed that portion of the Contract acknowledging that the first $100 of the earnest money deposit had been received by Respondents. That representation was false. Sider never gave Respondents the earnest money deposit specified in the Contract, and Respondents failed to advise anyone that the representation in the Contract was false. Although Respondent Wilk testified that she would "normally" keep $100 of Sider's money in her escrow account to be applied to the various contracts that he entered into through her, there is no evidence that there was $100 in Respondents' escrow account at the time or that it was available to be applied to this Contract. Rather, Respondent Wilk's testimony is accepted that she never received either the initial $100 or the additional $900 deposit monies from Sider for this property. Herb Sider refused to close. The seller, Gwendolyn Taylor-Herbert, agreed to lower the sales price, and a modified contract was executed between Taylor-Herbert and Sider. Thereafter, Sider again refused to close. At no time did Respondents notify anyone that they did not have an earnest money deposit in escrow for the Taylor-Herbert/Sider transaction. Diane Quigley, branch manager of Coldwell Banker Residential Real Estate, Inc., sent a letter dated July 11, 1989, to the Respondents transmitting release of deposit receipt forms and instructing Respondents to release the $500 earnest money deposit of LPS Investments, Inc., and the $1,000 earnest money deposit of Herb Sider to the seller Gwendolyn Taylor-Herbert. Respondents ignored that demand letter. By letter dated August 25, 1989, Quigley again wrote to Respondents demanding the release of the Sider and the LPS Investments, Inc., deposits to the seller. That letter referred to the July 11th letter which Respondents had ignored and the numerous phone calls placed by Quigley to Respondents which had not been returned. On September 13, 1989, Respondents for the first time notified Petitioner of possible conflicting demands. That letter misrepresented the facts of the situation and suggested that the seller and buyer might still be able to strike a deal. On October 3, 1989, Respondents again wrote to the Florida Real Estate Commission advising that "there is now a conflicting demand" on the deposits relative to the Gwendolyn Taylor-Herbert property. Respondents' letters reveal a lack of understanding of the basics of a real estate contract. Neither letter advised the Commission that Respondents did not have any of the monies in escrow at any rate. On December 27, 1988, Respondent Wilk made an offer to purchase real property from Bel-Properties, Inc., which offer provided that $100 earnest money deposit would be held in escrow by Stars and Stripes Realty, Inc., and an additional $2,050 earnest money deposit would be placed in the Stars and Stripes escrow account within 72 hours of acceptance. Respondent Wilk executed the portion of the Contract for Sale and Purchase of Real Property acknowledging that the initial $100 deposit had been received. That representation was false. The Contract which she prepared listed as the buyer "Lori Wilk, a lisenced [sic] real estate broker, and/or assigns." The offer was accepted by the seller on December 30, 1988. In connection with that offer, Respondent Wilk represented that she was the purchaser when, in fact, she was acting on behalf of the actual purchaser HBS Investments, Inc., a corporation owned, controlled, and operated by Herb Sider. Immediately upon the acceptance of Respondent Wilk's offer, she assigned the sales contract to HBS Investments, Inc. At no time did Respondent Wilk or HBS Investments, Inc., place the $2,150 earnest money deposit in the escrow account of Stars and Stripes Realty, Inc., as represented by Respondent Wilk to the seller and as required by the Contract. Further, at no time did Respondents advise the seller that they did not have an earnest money deposit in the Stars and Stripes escrow account. On November 28, 1988, Respondent "Wilk, a lisenced [sic] real estate broker, and/or assigns" made an offer to purchase real property from Darlene Farris. Farris accepted that offer on December 6, 1988. That Contract for Sale and Purchase of Real Property provided that an initial deposit of $100 had been placed in the escrow account of Stars and Stripes Realty and that an additional earnest money deposit of $1,900 would be placed in escrow within 72 hours of acceptance. Respondent Wilk executed the portion of the Contract acknowledging that she had received the initial $100 earnest money deposit. That representation was false. In fact, Respondent Wilk never placed any of the $2,000 earnest money deposit in her escrow account and never advised the seller or the seller's listing broker that no earnest money deposit had been made. On or about February 2, 1989, Respondents solicited and obtained Willy Pearson as a tenant for the Farris property. Respondents represented to Pearson that the lessor was HBS Investments, Inc. Respondent Wilk prepared a Memorandum to Enter Into a Lease acknowledging the receipt of $550 as a deposit from Pearson, although Respondent Wilk only received $250 from Pearson. When Respondent Wilk received half of the rental deposit, she gave Pearson both a receipt and immediate possession of the property. Respondents obtained the tenant without the prior knowledge and consent of Darlene Farris, owner of the property. Further Respondents did not notify Farris or Farris' broker that Respondents had rented Farris' property until sometime after Respondents had received the $250 deposit from Pearson and had given him possession of Farris' property. Neither Respondent Wilk nor HBS Investments, Inc., ever closed on the Farris property. Further, Respondent Wilk never obtained authority from Darlene Farris to obtain or place a tenant in Farris' property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondents guilty of the allegations contained in the Administrative Complaint filed against them and revoking the licenses of Respondents Lori Wilk and Stars and Stripes Realty, Inc. RECOMMENDED this 8th day of May, 1991, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2468 Petitioner's proposed findings of fact numbered 2-21 and 23-28 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 22 has been rejected as being irrelevant to the issues under consideration in this cause. Respondents' proposed findings of fact numbered 2-9, 19, and 23 have been adopted either verbatim or in substance in this Recommended Order. Respondents' proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Respondents' proposed findings of fact numbered 10, 15, and 27 have been rejected as being contrary to the weight of the credible evidence in this cause. Respondents' proposed findings of fact numbered 11, 12, 14, 16-18, 20-22, 24, 25, 28, and 30 have been rejected as not been supported by the weight of the credible, competent evidence in this cause. Respondents' proposed findings of fact numbered 13, 26, and 29 have been rejected as being irrelevant to determination of the issues involved in this cause. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Legal Section - Suite N-308 Hurston Building - North Tower 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Monte K. Rassner, Esquire Rassner, Malove, Rassner, Kramer & Gold Plaza 7000, Suite 500 7000 Southwest 62nd Avenue South Miami, FL 33143 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, FL 32802-1900 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792
