Findings Of Fact The Defendants are registered with the Florida Real Estate Commission as brokers. The Defendant Mershon is the President of the Defendant Orlando Metro Realty, Inc. During May, 1971, the Defendant Mershon, acting as a real estate broker, negotiated a sale of land from Carolina Caribbean Corporation to Edye Lynn. The property is located in North Carolina, and the contract for sale was signed in an airplane between North Carolina and Florida. For reasons that are not relevant to this proceeding, Ms. Lynn became disenchanted with the transaction. The Defendant Mershon agreed to assist her in finding a purchaser. On January 23, 1972, Charles Schiller Martin, signed a contract to purchase Ms. Lynn's property. The Defendants acted as brokers in securing the purchaser. The contract was signed in North Carolina. The contract was received in evidence, and is marked as Exhibit number 1 to each of the four depositions. Mr. Martin deposited the sum of $500 with the Defendant when he signed the contract. A copy of the cancelled check from Mr. Martin to the Defendants was received in evidence and is marked as Exhibit number 2 to each of the depositions. Ms. Lynn accepted Mr. Martin's offer. Mr. Martin submitted the contract to his attorney, George W. English III. On March 7, 1972 Mr. English wrote to Henry J. Prominski, an attorney who represented Ms. Lynn, requesting that several items respecting the property be forwarded to him. This letter was received in evidence and is marked as Exhibit number 5 to each of the depositions. On March 22, 1972, Mr. English wrote to Mr. Prominski informing him that Mr. Martin wished to cancel the contract to purchase. A copy of this letter was received in evidence, and is marked as Exhibit number 3 to each of the depositions. Mr. English advised Mr. Martin that marketable title could not be delivered, primarily because there were deed restrictions applying to the property which were not mentioned in the contract for sale. Assessments for water, sewer, and road grading were cited by Mr. English as particularly onerous. The March 22 letter was followed on April 25, 1972, with another letter. This letter was received in evidence, and is identified as Exhibit number 4 to each of the depositions. Mr. English never made any direct demand upon Mr. Mershon for return of the $500 deposit to Mr. Martin. He did make a demand upon Mr. Prominski. It is Mr. English's legal opinion that the seller could not deliver marketable title to the buyer. Mr. Prominski, representing the seller, is of the opinion that marketable title was available to be delivered to the buyer. Mr. Prominski stated that his client did not default in her obligations under the contract. Mr. Mershon opted to construe the purchase contract between Mr. Martin and Ms. Lynn as breeched by Mr. Martin. He forwarded $250 of the deposit to Ms. Lynn and retained $250 for himself. He explained his action in this regard in a letter to Mr. Prominski dated September 13, 1972. This letter was received in evidence, and is marked as Defendants' Exhibit number 1. This arrangement was apparently satisfactory to Ms. Lynn, and Mr. Prominski communicated Ms. Lynn's approval through a letter dated October 11, 1972. This letter was received in evidence, and is marked as Exhibit number 8 to each of the depositions. Approximately three weeks prior to the time that Mr. Martin signed the contract to purchase the Lynn property, Mr. Mershon delivered copies of various reports to Mr. Martin, including the restrictions that would apply to the property, and the contract to purchase from Carolina Caribbean Corporation which had been executed by Ms. Lynn. At approximately the time that Mr. Martin signed the contract, Mr. Mershon advised him that title insurance was available. The Defendants acted as brokers in many transactions in the development in which the property involved in this case is located. They had obtained title insurance on many similar lots. Only in this case was there any objection to title. Prior to his distributing $250 of the $500 deposit to Ms. Lynn and his retaining the remaining $250, Mr. Mershon consulted with attorneys for Carolina Caribbean Corporation who advised him that the Martins had defaulted in their obligations. Mr. Mershon personally spent approximately $1,000.00 in transporting Mr. Martin from Florida to North Carolina. Defendants did not seek the advice of the Florida Real Estate Commision respecting the disposition of the deposit monies, did not submit the issue to arbitration, did not interplead the parties, and did not otherwise seek an adjudication in a proper court. No evidence was offered with respect to standards for determining the marketability of real property in North Carolina. No evidence was offered respecting the marketability of title to the land in this case, other than the opinions of Attorney English, Attorney Prominski, and Defendant Mershon.
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner is a real estate salesman registered with the Florida Real Estate Commission. In September of 1978, petitioner submitted an application to the Florida Real Estate Commission for registration as a real estate broker. By an Order dated December 4, 1978, the respondent denied the application for the reason that the applicant had not made it affirmatively appear that he possessed the necessary qualifications under F.S. 475.17. Specifically, the Commission found "That it appears to the Commission that Salesman Dunkum signed Broker Wallace W. Staff's name as a witness to Dunkum's signature on a contract offer to purchase real estate without authorization. In addition, Salesman Dunkum signed Broker Staff's name to a listing agreement without authorization." The petitioner timely requested an administrative hearing on the denial of his application and the undersigned Hearing Officer was duly designated to conduct the proceedings. The petitioner Dunkum admits that he did sign broker Staff's name as a witness to his own signature on a contract for the sale of real estate. Mr. Dunkum has been a notary public for approximately fifteen years and was aware that he should not have signed Staff's name as a witness. Petitioner was the purchaser under the contract and did in fact purchase the real estate. Thus, neither the purchaser nor the seller was harmed by the wrongdoing. The petitioner further admits that he did sign broker Staff's name to a listing agreement. He admits that he was wrong to sign Staff's name, without adding his initials or name under the signature. Petitioner believed he had the authority to sign Staff's name to listing agreements in Staff's absence. Mr. Staff testified that he never gave petitioner authority to sign his name and that all listings were to be under his signature. Mr. Staff was aware that petitioner had signed his name on documents prior to September of 1978. Nevertheless, on September 18, 1978, Mr. Staff entered into a three year independent contractor agreement with petitioner.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for registration as a real estate broker be DENIED, but that petitioner be permitted to submit another application for registration nine (9) months after the Order of the Commission dated December 4, 1978. Respectfully submitted and entered this 30th day of March, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Rupert E. Dunkum 5900 94th Avenue Pinellas Park, Florida 32802
The Issue Whether Petitioner's application for a real estate salesman's license should be approved.
Findings Of Fact Petitioner is Victor Kevin Koellner. By application, he sought licensure as a real estate salesman. Petitioner was a unsuccessful candidate for the December 1988 real estate salesman's licensure examination. Petitioner received a score of 74. A score of 75 is required for licensure. Each correct answer has a grade value of one (1) point. Candidates are instructed to choose the most correct answer from among the multiple choice answers given. Petitioner challenges the answers selected by the Florida Real Estate Commission as correct as to questions numbered 15 and 52, on the test administered on December 5, 1988. Question 15 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1. The commission holds that the correct answer to question 15 is D. (Do any of the above). The Petitioner alleges that the better answer is A. (Request an Escrow disbursement order from the Florida Real Estate Commission). Section 475.25(1)(d), Florida Statutes, supports the Respondent's conclusion. Seventy-three (73%) percent of the candidates taking the examination on December 5, 1988 answered the question correctly. Question 52 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1 (page 2). The commission holds that the correct answer is C. (Pay it at the closing). The Petitioner alleges that the correct answer is D. (Not pay it). The question asked what should the seller do concerning the sales commission at the closing. Based on the facts given in the Florida Real Estate Handbook, 1987 Edition, page 272, the seller would have no option but to pay the commission at closing. Sixty and 3/10 (60.3%) percent of the candidates taking the examination on December 5, 1988 answered question 52 correctly.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 28th day of September, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 28th day of September, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Respondent's Proposed Findings: 1-8. Adopted in substance. Petitioner's Proposed Findings: Paragraphs 1,2,3,4,5 (in substance), 7, and 10 are accepted. Paragraphs 6,8 and 9 are rejected as not relevant. COPIES FURNISHED: Victor Kevin Koellner, pro se 1385 Taurus Court, Merritt Island, Florida 32953 E. Harper Field, Esquire Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Real Estate Legal Services 400 West Robinson Street Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Gladys A. Gibbons is licensed as a real estate broker by the Florida Real Estate Commission under license number 0031192 and has been so licensed at all times material to this case. During such time she was employed as the broker for Gregoire-Gibbons, Inc. Respondent Dorothy M. Comolli is licensed as a real estate salesman under license number 00336387 issued by the Florida Real Estate Commission and has been so licensed at all times material to this case. During the period in question here she was employed by Gregoire- Gibbons, Inc. and was supervised by Respondent Gladys A. Gibbons. On March 3, 1981 Ms. Dorothy Hawks listed her residential property located at 2349 Third Avenue North, St. Petersburg, Florida, for sale with Mr. Gerald O'Conner, a real estate salesman employed by Humpe Roney, Inc., in St. Petersburg, Florida. On July 1, 1981 Respondent Dorothy Comolli called Mr. O'Conner to tell him that she had a contract on Ms. Hawks' property. The offer which Ms. Comolli presented on behalf of Ms. Hortense Willoughby was an option to purchase with a lease. When the offer was presented to Ms. Hawks she demurred about the option and counteroffered with a lease and a contract for sale which provided for closing within one year. On a document entitled Real Estate Purchase and Sale Agreement dated July 1, 1981 the parties negotiated the terms of the property sale. Their handwritten amendments to the form contract were later incorporated into a real estate purchase and sale agreement dated July 14, 1981 which was executed by Ms. Willoughby but never signed by Ms. Hawks. With respect to the rental portion of the transaction the first contract was a receipt for deposit and agreement to lease dated July 19, 1981 presented through Ms. Comolli with a promissory note in the amount of $500 attached as a security deposit for the last month's rent on Ms. Hawks' house. The text of the receipt recited that the lease was for a period of one year with monthly payments of $500 a month to begin on August 15, 1981. It further provided for $200 "security" plus $500 for the last month's rent in a three-month promissory note. Both the note and the receipt for deposit and agreement to lease were presented by Ms. Comolli to Carol Denker at Humpe Roney, Inc. Ms. Denker had taken over Ms. Hawks' account due to the vacation of Mr. O'Connor. In addition to these documents Ms. Comolli gave Ms. Denker $200 as an earnest money deposit on the sale of the house. Ms. Denker in turn gave Ms. Comolli a receipt for the $200 but later returned the $200 to Ms. Comolli as it is customary for the agent of the purchaser to hold the deposit. The form of the promissory note and the receipt for deposit and agreement to lease were not acceptable to Ms. Denker. She had been instructed that promissory notes witnessed by a realtor were a bad business practice and were not acceptable to Humpe Roney, Inc. Ms. Denker therefore gave Ms. Comolli a promissory note form acceptable to Humpe Roney for Ms. Willoughby to execute. Ms. Denker then attempted to contact Ms. Hawks to let her know about the promissory note but was not able to reach her. On July 21, 1981 Humpe Roney prepared on its forms, a contract for sale of real estate and a receipt for deposit and contract for lease. The record is not clear why Humpe Roney wanted the contracts rewritten. After they had been redrawn Ms. Comolli picked them up, had Ms. Willoughby sign them, and returned them to Humpe Roney for Ms. Hawks' signature. These two documents which were executed by Ms. Willoughby and Ms. Hawks finally constituted the agreement between the two parties. Neither document recites that the last month's rent would be paid by Ms. Willoughby in the form of a promissory note. The record is not clear why the final contracts as redrawn by Humpe Roney did not reflect the $500 promissory note. The deletion of any mention of the note was not at the request of either Respondent and does not appear to have been done intentionally by Humpe Roney. At no time was Ms. Hawks aware that a promissory note would be provided instead of cash for the last month's rent. Ms. Willoughby moved into the house on August 4, 1981. She stayed there for the months of August, September and October and part of November when she defaulted on the promissory note which was due on November 15, 1981. Upon her default she was evicted from the house. She is still in default on the promissory note and has no funds with which to pay it. When Ms. Hawks made a demand upon Gregoire-Gibbons for the $200 earnest money deposit plus the $500 last month's rent she received $200 and the $500 note. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint filed against Gladys A. Gibbons and Dorothy M. Comolli. DONE and RECOMMENDED this 9th day of February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 9th day of February, 1984.
Findings Of Fact Documents introduced into evidence revealed that the Respondent Jeremiah C. Clarke is a registered real estate broker and Clarke Real Estate is an entity registered as a partnership broker and authorized to act as such with the Commission. On or about September 15, 1975, Jerry Kent, a salesman with Respondent, Clark Real Estate, obtained an oral open listing from Esther Braverman on a condominium unit denominated as "Apartment B-804, 1111 Crandon Boulevard, Key Biscayne, Florida." Pursuant thereto, salesman Kent showed the condominium unit to Jacques Benoist and Jeanine Benoist, his wife, who executed a deposit receipt contract to purchase a condominium unit on September 27, 1975. Esther Braverman, the seller, executed the contract during October of 1975. The deposit receipt contract provided for a $10,000 earnest money deposit to be held in the escrow account of the law firm of Snider, Young, Barrett, and Tannenbaum, P.A., attorneys for seller Braverman. Said deposit was made on September 27, 1975, by delivering a check to attorney Bruce L. Hollander, a member of the firm, who deposited the deposit in the firm's escrow account. (See Commission's Exhibit No. 9). The deposit receipt contract also obligated the seller, Esther Braverman, to pay Respondent Jeremiah C. Clark a commission of $7,875. Specifically, the contract provides that "I, or we, agree to pay to the above assigned broker a commission for finding the above signed purchaser for the above described property, the sum of $7,875 . . . ." Closing took place on January 19, 1976, at the offices of Washington Federal Savings and Loan Association, Miami Beach, Florida, from whom the Benoists had obtained financing for the purchase. At the closing on January 19, 1976, Esther Braverman signed and delivered a warranty deed made out to Jacques Benoist and Janine Benoist, transferring the property to the Bravermans. The warranty deed was recorded with the clerk of the Dade County Circuit Court by the lending institution, Washington Federal Savings and Loan Association. (See Respondent's Exhibits 1 and 2) At the closing, Jeremiah Clark was given a check representing the commission to Clarke Real Estate in the amount of $7,875. Thereafter, Jerry Clarke was requested by the lending institution to hold the funds in escrow until the bank dispursed the mortgage proceeds. He was then told that the mortgage proceeds would be paid within the following week. Respondent Clarke agreed, pursuant to a request from the seller's attorney, Bruce Hollander, to hold the commission check until January 27, 1976, without depositing same. Mr. Clarke held the commission check until January 29, 1976, as agree. On that day, he dispursed the proceeds to salesman Jerry Kent and the balance was credited to Clarke Real Estate. The mortgage funds were never disbursed because the lending institution could not obtain a quit-claim deed from the seller, Esther Braverman's former husband and therefore in the lending institution's opinion, the defect was not discovered until after the closing. On May 6, 1976, attorney Hollander acting for his law firm and the seller sent Respondent Jeremiah C. Clarke and Respondent Clarke Real Estate a letter stating that the mortgage proceeds had not been disbursed by the lending institution and requested a demand for the commission check. The Commission takes the position that the closing which occurred on January 19, was an escrow closing and that the Respondent Jeremiah Clarke was not authorized to disburse the proceeds from the commission check until notification that the mortgage proceeds were disbursed by the lending Institution. The Respondents, on the other hand, took the position that their only obligation was to find a purchaser who was ready, willing and able to complete the transaction, which acts were consummated by their salesman, Jerry Kent. Based on my examination of the document introduced herein, and the testimony adduced during the hearing, the undersigned concludes that the Respondent's position that it was entitled to receive the commission monies here in dispute has merit. Although the Commission takes the position that an escrow closing occurred, an escrow has been defined as a written instrument which by its term imports a legal obligation and which is deposited by the grantor, promisor, or obligor, or his agent with a stranger or third party to be kept by the depository until the performance of a condition or a happening of a certain event and then to be delivered over to the grantee, promisee, or obligee. It cannot be seriously contended herein that the Respondent Clarke was acting as an escrow for himself when consideration is given to the above definition of an escrow. See Love v. Brown Development Company, 131 So. 144. It is further essential to an escrow that delivery of the instrument be to a stranger or to a third person, that is, to one who is not a party to the instrument, or a person so free from any personal or legal identity with the parties to the instrument as to leave them free to discharge his duty as a depository to both parties without involving a breach of duty to either. For example, a deed delivered to a grantee cannot be regarded as held in escrow. Here, Respondent Clarke was in no way acting for anyone other than himself or as agent for his salesman, Jerry Kent, both of whom had a direct stake in the commission proceeds. Additionally, upon examination of the deposit receipt contract, the broker became entitled to the commission proceeds when the buyer (purchaser) was found. Additionally, and as an aside, it was noted that the lending institution in fact recorded its mortgage the day following the closing This would lead any examiner of the public records to believe that the lending institution was satisfied with the title as conveyed on the closing date. It was further noted that the Respondents had no indication that there was a problem with the title until approximately five months following the closing. Finally, the undersigned received a letter from attorney Lipcon dated August 1, 1975, advising that the civil case which was pending before the Dade County Circuit Court involving similar issues as posed herein before the commission had been fully and finally settled. There was a stipulation for dismissal signed by attorneys for each of the parties including the attorney for the firm that made the complaint against the Respondents stating in essence that the monies paid to Respondent Clarke and which was retained by him as full and final settlement of his brokerage commission were to be retained by Respondent Clarke as final payment of his commission in connection of the sale of the subject condominium. For all of these reasons, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the Findings of Fact and Conclusions of Law as found above, it is hereby recommended that the complaints filed herein be dismissed in their entirety. Recommended this 23rd day of August, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact Respondent Elizabeth E. Tice is a licensed real estate broker operating under the trade name of Betty Tice Realty, and is the holder of License No. 0089060. The Respondent operates her business from 1832 Victoria Avenue, Ft. Myers, Florida 33901. On or about April 10, 1979, the Respondent negotiated a contract for the sale and purchase of a parcel of residential real property located at 3743 S. E. 2nd Place, Cape Coral, Florida, between Robert C. and Kathryn H. Waite, as sellers, and Roy Rosenthal and Gloria Rosenthal, as purchasers. The contract price was $49,500. The face of the contract acknowledged receipt from the buyer of a $500 earnest money deposit to be held in escrow by the Respondent in the Betty Tice Realty Trust. The purchaser paid the earnest money deposit to the Respondent in the form of a personal check made payable to Betty Tice Realty Trust in the amount of $500. He instructed the Respondent to hold that check without depositing it in her trust account until he had returned to his home in New Jersey the next day and ascertained that there were sufficient funds to secure payment of the check. He would thereupon immediately call her and advise her to deposit the check. Immediately after the buyer had executed the contract, the Respondent presented it to the seller's agent, Mr. William B. Waite, a real estate salesman, who is the father of the seller, Robert C. Waite. Mr. Waite submitted the offer to his son and daughter-in-law, the sellers, on April 10, 1979, recommending that they accept it, which they did. The Respondent upon the receipt of the binder check from the purchaser, did agree to hold the check without deposit until he called the next day to assure her that funds were on deposit to pay the check. She placed the check in a bank bag used in the normal course of her business, but inadvertently placed it in the wrong hag, that is, not the one commonly used to carrv cash and checks to the bank for deposit. The check reposed in the bank bag in her office for approximately two weeks before she recalled that she should have deposited it and called the pnrc-iaser in New Jersey to ascertain its validity. On April 25, 1979, upon suddenly remembering that the check was still in her possession, she immediately took it to the bank, deposited it and then called the Rosenthals to inform them. The check was presented for payment and returned by the New Jersey bank marked "insufficient funds". Upon learning of this on May 8, 1979, Mrs. Tice telephoned salesman, William B. Waite, and informed him that the proposed sale and purchase of his son's residence had gone awry by reason of the invalidity of the buyer's binder check. The Respondent failed to inform the sellers that the earnest money deposit was not immediately deposited in the bank or in the trust account, but that failure was inadvertent and due to the fact that the Respondent simply forgot that she retained possession of the check in her office, rather than to any intentional scheme to mislead or deceive the sellers. Neither the sellers nor their agent made any inquiry regarding the status of the binder deposit prior to May 8, 1979 when they were informed of the problem. It is indeterminable whether the property was withdrawn from the real estate market from April 10 through May 8, 1979. The property remained in the multiple listing service book depicting homes available for sale during the period April 10 through May 8, 1979. However, the President of the sellers' real estate firm indicated that the property was off the market as far as his office was concerned since his firm lost the listing for the property during that period. Similarly, it was not established that the property was not available for alternative contracts during that interim period of April 10 through May 8, 1979 and, if none were received by tie sellers, whether the failure to secure such "back-up" contracts was due to reliance on the contract involved in this proceeding.
Recommendation Having considered the evidence in the record, the foregoing findings of fact and conclusions of law, the candor and demeanor of the witnesses, as well as the pleadings and arguments of counsel, it is RECOMMENDED that the Respondent, Elizabeth E. Tice, be found guilty of culpable negligence pursuant to Section 475.25(1)(a), Florida Statutes (1977), as amended, and that the penalty of a private written reprimand be imposed on the Respondent. DONE AND ENTERED this 13th day of February, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1981. COPIES FURNISHED: S. Ralph Fetner, Jr. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harry A. Blair, Esquire 2149 McGregor Boulevard Post Office Box 1467 Fort Myers, Florida 33901 =================================================================
The Issue The issue posed for decision herein is whether or not James T. Speaks, Respondent, engaged in conduct amounting to a failure to maintain in an escrow bank account deposits he received as a selling broker which were entrusted to him in the course of his brokerage activities until a proper or authorized disbursement of such monies was made. Based on its Administrative Complaint filed on May 17, 1978, the Florida Real Estate Commission, Petitioner, seeks to revoke, annul, suspend or otherwise discipline licensee James T. Speaks, who holds Florida Real Estate License No. 0083459, based on conduct which will be set forth herein in detail.
Findings Of Fact Based on the testimony presented during the course of the hearing, the following relevant facts are found: During October of 1976, Donna W. Ross was a listing broker to sell the property of Katherine Scanlon. During mid-October, 1976, Respondent Speaks located purchasers for the Scanlon property and submitted an offer to the listing broker, which offer was accepted by the seller. Respondent Speaks deposited a $1,000.00 binder deposit in his escrow account. (See FREC Composite Exhibit No. 7.) The closing of the real estate transaction in the Scanlon property took place in Attorney David Booher's office who, based on evidence received during the course of the closing, questioned Respondent Speaks as to the negotiability of a $1,000.00 check Respondent Speaks presented as a refund of the escrow deposit he had tendered to secure the deposit receipt contract for the Scanlon property. Virginia RawIs, who was formerly employed by Booher and Crabtree, Realtors, called the Barnett Bank of Regency to verify if sufficient funds were on deposit in Respondent Speaks' account and was advised that sufficient monies were not on deposit to cover the check. At that juncture, Respondent Speaks acknowledged that he had tendered a check which was drawn on an account without sufficient funds to cover it and agreed that the $1,000.00 binder deposit should be deducted from his commission monies due. This agreement was acceptable to all parties concerned at the closing and another check representing the commission monies due Respondent Speaks, less the $1,000.00 deposit, was drawn and made payable to Speaks. Donna W. Ross, the listing broker, was also present during the hearing and verified the testimony of Attorney Booher respecting the presentation by Respondent Speaks of the $1,000.00 check which was not secured by sufficient funds. As noted in the appearance section of this Recommended Order, the Respondent, James T. Speaks, did not appear during the hearing although copies of the Notice of Hearing were mailed to his last known addresses.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Registered Real Estate Broker license of Respondent, James T. Speaks, be suspended for a period of two (2) years. RECOMMENDED this 5th day of January, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
