The Issue Whether Respondent failed to deliver a deposit to the person entitled to said delivery in violation of Section 475.25(1)(c), Florida Statutes. Respondent appeared at the hearing without legal counsel and was advised of his rights to same at his own expense. He elected to represent himself at the hearing. He was further advised as to his rights under the Administrative Procedure Act including the right to testify on his own behalf if he so desired. He indicated his understanding of his rights. It was stipulated by the parties that Joseph Sopotnick, Joseph Sopotnick, Jr., and Joe Sopotnick are one and the same person.
Findings Of Fact At all pertinent times under consideration in these proceedings, Respondent was a registered real estate broker (Stipulation of parties, Exhibit 2) In March 1974, Alvin K. Whittington of Marietta, Georgia, upon the recommendation of his job supervisor, who had dealt with Respondent in the past, called the Respondent on the telephone concerning the possibility of purchasing land in Florida. Although the Respondent indicated that he had none available at that time, he called Whittington later on in the day and told him that he had certain property which was for sale and inquired as to when he could come down to Florida to look it over. Whittington informed him that he did not know when he would be able to visit Florida and Respondent advised him to send a deposit in order to hold the land since there was a contractor interested in the same property. Whittington told him that he did not like the idea of placing a deposit on property that he had not seen and inquired as to whether or not he could secure a return of the deposit if, after he had seen the land he did not wish to purchase it. Respondent told him "That's no problem. You can get your deposit back". He advised him to send the deposit and that he would hold it until he came to Florida. Accordingly, Whittington sent a check for $360.00, dated March 20, 1974, to the Respondent which indicated on its face that it was a "deposit on Fla. shore lots - N.W. corner Needle Palm & 18th". The check was signed by Mrs. Whittington on a joint account with her husband. The sum of $360.00 represented 10 percent of a purchase price of $3600.00. After talking to Whittington, Respondent on March 20 wrote to the owners of the property, advised that a deposit check would be forthcoming and enclosed a standard sales contract for the sellers to execute and return to him. This was accomplished and Respondent then forwarded the contract to the Whittingtons for execution and return which they received on April 1st. Mr. Whittington thereupon called the Respondent and told him that he could not sign the contract without seeing the property. On April 12th, he and his wife went to Florida, met with the Respondent, looked over the lots in question, and informed the Respondent that he would call him the following Monday as to whether or not he wished to make the purchase. On April 15th, Whittington called the Respondent, informed him that he did not wish to purchase the property and requested return of his deposit. Respondent informed him he could not return it and that disposition of the deposit would be a matter to be determined by the seller. Thereafter, on April 19th, Respondent wrote to the Whittingtons informing them that after careful consideration, he intended to treat the matter as a forfeiture of deposit situation, and unless he heard from them to the contrary he would disburse the deposit to the seller under the terms of the contract. However, he stated in the letter that he would apply the full deposit to any purchase that the Whittingtons might thereafter wish to make. After receipt of this letter, Whittington again called the Respondent concerning the situation at which time Respondent informed him that he would try to get 1/3 of the deposit returned if Whittington would send him a letter indicating that he would accept such an amount. Nothing further was heard from the Respondent and the deposit was never refunded (Testimony of Mr. & Mrs. Whittington, Composite Exhibit 1, Exhibits 3, 4). On or about July 2, 1974, Respondent remitted 1/2 of the deposit to sellers and retained 1/2 for himself (Stipulation of parties) Respondent testified that Whittington had insisted he accept the deposit and send the contract to the seller to insure that he would be able to purchase the property, and that the proposed deal was not contingent upon the buyer's satisfaction with the property. He denied telling Whittington he could get his deposit back. He also testified that after the Whittingtons viewed the property in Florida, he asked Whittington about the contract and the latter said that he had not brought it with him but would send it within a few days. That when he thereafter called upon his return to Georgia, he informed Respondent that he did not wish to make the purchase because his wife was about to have a baby. Respondent contended at the hearing that he was never sure that Whittington wanted his deposit back, however, conceded that Composite Exhibit 1f was his letter to the sellers advising that the Whittingtons had requested the return of the deposit. Respondent asserted that it was his impression that if a deposit had been made in good faith, it was proper to consider that there was a binding contract even though the depositor had not signed a sales contract. He further indicated that if he was wrong in this respect he would return the deposit. At no time did the Respondent ever discuss the transaction with the sellers. He was unaware of the provisions of Section 475.25(1)(c), by which a registrant may seek advice from the real estate commission if he entertains, in good faith, doubt concerning his duty to account and deliver a deposit. Respondent has been in the real estate business for twelve years (Testimony of Respondent, Composite Exhibit 1f).
Recommendation That Respondent's registration as a real estate broker be suspended for a period of 60 days. That the period of suspension in excess of 30 days be vacated if the Respondent returns the $350.00 deposit to Mr. & Mrs. Alvin K. Whittington prior to the expiration of the aforesaid period of 30 days from the original date of suspension. DONE and ENTERED this 20th day of February, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact At all pertinent times, respondent Richard L. Faircloth has held a real estate salesman's license, No. SL 0407933, issued by petitioner Department of Professional Regulation, Division of Real Estate, authorizing him to work, since July 16, 1990, as a salesman for Discount Realty-Fla., Inc., a corporate broker in Alachua, Florida, whose "qualifying broker" is respondent's wife, Lise H. Faircloth. Petitioner's Exhibit No. 1. On December 1, 1990, Alvin and Betty J. Wilson came to Mr. Faircloth's office in Alachua to sign a form deposit receipt and purchase and sale agreement, Petitioner's Exhibit No. 2, by which they offered to purchase a house on Northwest 18th Terrace in Gainesville; and they gave Mr. Faircloth five hundred dollars in cash, as earnest money. Mr. Faircloth did not recall at hearing whether he put the money in his pocket at that point, but the money was never deposited in an escrow or trust account. After Mr. and Mrs. Wilson left, Mr. Faircloth communicated their offer by telephone to a representative of the house's owner. The offer was declined. When he telephoned the Wilsons with the news, he asked them to come back to his office. With their return later that day, a conversation lasting about an hour and a half began, at the end of which the Wilsons authorized respondent and his broker to retain the earnest money deposit for use in the event respondent located another house they decided to make an offer to purchase. For the same purpose, Mrs. Wilson later wrote respondent a check in the amount of $1,500, which was duly deposited in the broker's escrow account. Shortly thereafter, respondent drew a check on the escrow account in Mr. Wilson's favor in the amount of $200 (so he could pay an electric bill), but the bank refused to cash it. Funds in the escrow account were insufficient, because the Wilsons' $1,500 check had bounced. Mr. Faircloth also wrote a check the Wilsons used as a deposit when they rented a truck to move into a duplex they rented from him. The deposit check was ultimately returned to respondent, without being cashed. (When the Wilsons moved, respondent regained possession of the dog he had earlier given the Wilsons' son. He was never reimbursed $78 he expended for the care and feeding of this dog, after it had become the Wilsons' property.) The Wilsons paid $450 a month, in advance, while they rented the duplex, and nobody ever asked for a security deposit. When Mrs. Wilson received a check from Beneficial National Bank (who lent money against an anticipated tax refund) in the amount of $1,466, Petitioner's Exhibit No. 5, she endorsed it in favor of respondent or the broker and, as far as the evidence showed, this money was put in escrow (although $200 might have been deducted beforehand.) In any event, respondent transferred $200 to the Wilsons more or less contemporaneously. Altogether, the Wilsons entrusted respondent with $1,776 ($500 + $1466 - $200 = $1,766) for possible use as earnest money. After Mr. and Mrs. Wilson bought a house respondent had shown them in December of 1990, but through another broker's office, without availing themselves of Mr. Faircloth's assistance in closing the transaction, they asked him to return the money they had given him. He gave them a check signed by his wife, drawn on a Discount Realty-Fla., Inc. account in the amount of $1,316, on which was written "return of deposit less 450 00/100 security." Petitioner's Exhibit No. 6. The check was dated April 17, 1991. At hearing, Mr. Faircloth testified that the $1,316 check to the Wilsons represented a $50 overpayment. He conceded that $450 had been improperly deducted from the moneys the Wilsons paid, as a claimed security deposit. But he contended that he and the Wilsons had agreed to a non- refundable, $500 "finder's fee" during their second visit on December 1, 1990. In fact, the Wilsons never agreed to any finder's fee, non-refundable or otherwise. At the time it was received, respondent and his wife gave two receipts for the Wilsons' $500. Each reflected that it was to be deposited as earnest money, and no subsequent writing indicated any different agreement between the parties. As late as April of 1991, respondent's conduct, notably delivery of the $1,316 check to the Wilsons, was inconsistent with the putative agreement about a finder's fee he testified to at hearing.
Recommendation It is, accordingly, RECOMMENDED: That petitioner suspend respondent's license for one year. DONE and ENTERED this 14 day of August, 1992, in Tallahassee, Florida. Copies furnished to: Janine Myrick, Esquire P.O. Box 1900 Orlando, FL 33802 Richard L. Faircloth Post Office Box 1859 Alachua, FL 32615 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 ROBERT T. BENTON, II 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 14 day of August, 1992. Darlene F. Keller, Division Director Division of Real Estate 400 W. Robinson Street P.O. Box 1900 Orlando, FL 32802-1900
Findings Of Fact Roy Howard rented an apartment from Respondent from 23 October 1977 until 31 August 1978. The lease was oral with the rent of $175 payable monthly and due on the first of each and every month after October 1977. Respondent received a security deposit from Howard in the amount of $100 when the apartment was leased to Howard. Sometime shortly before August 15, 1978 Howard notified Mrs. Williams by telephone that he intended to vacate the premises on 31 August 1978. No written notice was given; however, Respondent acknowledged that actual notice was received of Howard's intention to quit the premises on 31 August 1978. Within a few days after Howard left the apartment, Mrs. Williams inspected the apartment and found damage to wall in hall due to furniture being moved out, the apartment dirty, and damage to hardwood floors. On 15 September 1978 Mrs. Williams sent Howard a letter outlining the above damages and a check for $31.50 representing the balance from the $100 security deposit after she had paid for the cleaning of the apartment. Howard protested withholding part of his security deposit for cleaning and complained to Petitioner, who issued the Notice to Show Cause in this case. At the time Howard entered into the lease with Mrs. Williams she told him his full security deposit would be refunded if he left the apartment in the same condition with respect to cleanliness and repair it was in when occupied by Howard. Subsequent to September 15, 1978 Mrs. Williams obtained an estimate of $115.95 to repaint the hallway and ceiling leading to the apartment occupied by Howard. No evidence was introduced indicating that any damage to the hall ceiling was occasioned by Howard's move from the apartment.
Findings Of Fact The Respondent, Aquatic Realty, Inc., is a licensed corporate real estate brokerage in the State of Florida, holding license number 0236839. That corporate broker has conducted an active practice since licensure in 1984 through the present time. The Respondent, Malcolm Lewis Hardy, is the sole stockholder of Aquatic Realty, Inc. and is the corporate president. He is also a licensed real estate broker in the State of Florida, holding license number 0407021. The Petitioner is an agency of the State of Florida, charged under the provisions of Chapter 475, Florida Statutes, with regulating the entry of real estate brokers and salesmen into the profession of real estate sales and brokerage and with enforcing the practice standards for those licensed professionals embodied in Chapter 475. In approximately September 1985, Ann Carrigan notified the Petitioner that she was practicing under her Florida real estate sales license with Aquatic Realty, Inc. She began to work there as a real estate salesperson charged with management of Aquatic's rental management program. Her primary duties at times pertinent hereto, in April through August 1986, involved management of various rental properties for clients of the corporate brokerage including securing tenants for those properties. She left her employment with Aquatic Realty, Inc., in approximately August 1986. In approximately early May 1986, Ross D. Knight contacted Aquatic Realty, Inc., by telephone and was directed to Ms. Carrigan by the receptionist in Aquatic's office. Mr. Knight owned a house at 6601 Pine Drive, Panama City Beach, Florida. He wished to rent that house for six months to a particular type of tenant. It was Mr. Knight's practice to live at his home in Canada for approximately six months of a given year. No specific agreement was reached between Knight and Ms. Carrigan at the time of the telephone call as to any contractual terms for Aquatic's services in regard to the attempted rental of his property. Later in May 1986, Ms. Carrigan, on behalf of Aquatic Realty, entered into an oral agreement with Mr. Knight to rent his residential property for a period of six months to one Steve Dobbs, who had previously been approved by Mr. Knight as an acceptable tenant. Pursuant to this oral arrangement, Aquatic Realty, Inc., received ten percent of the rents collected as remuneration for its services. There was no other agreement established regarding how performance was to be rendered by Aquatic or how Aquatic would be compensated, should a tenant fail to perform obligatory terms of any rental agreement and consequently forfeit his or her deposit. Likewise, there was no agreement regarding which party would bear the expenses incurred for the maintenance of the property. The Knight agreement was made with very little formalization between Ms. Carrigan and Mr. Knight at the point in time she procured the tenant, Steve Dobbs. The actual payment term was based upon the brokerage disclosure statement contained in the Dobbs' lease agreement. Until that time, no contract existed between Aquatic Realty, Inc., and Mr. Knight. Since the property involved was the Knights' personal residence and since they wished to continue living in the property during the winter months when they were not in Canada, they were quite concerned about the quality of potential tenants for their property. In this connection, they were still living in the house in May 1986, when Mr. Dobbs signed his lease with Aquatic Realty, Inc., and they personally approved him as a tenant. The lease term ran from May 1986 through November 1986. Upon Dobbs' entering into his lease with Aquatic, he paid a $450 security deposit to Aquatic, which was placed in Aquatic's escrow account to be held throughout the term of the lease. Mr. Dobbs failed to perform the terms of his lease and was relieved of his contract concomitantly forfeiting his $450 deposit in June 1986. Ms. Carrigan informed Mr. Knight of the forfeiture by phone, since he was residing in Canada at the time. He did not demand payment of any monies at that time. He did not inquire when he could expect his portion of the deposit money or inquire concerning how the forfeited deposit would be apportioned. He merely requested that Ms. Carrigan attempt to secure a tenant for his house. There was no further discussion at this time of any contractual terms regarding Aquatic's services, should it find a new tenant for the Knight property. Ms. Carrigan accordingly continued to attempt to rent the property. When Mr. Knight had departed for Canada in June 1986, he left Ms. Carrigan a key to the house and a set of deposit slips for her to use to deposit his share of any rents collected from the Dobbs' lease into his bank account in Panama City. Up until early August when she terminated her employment with Respondent, Ms. Carrigan attempted to rent the property and would periodically inspect the property to ensure that it was maintained in appropriate condition. Ms. Carrigan was unable to secure a tenant because she could not arouse much interest in potential tenants in the six month lease term required by the Knights. The usual tenant in the Panama City Beach area is interested in short- term rentals on a weekly or monthly basis or alternatively a lease for a term of a year or more. In fact, the majority of tenants at that time of year in Panama City Beach are short-term lessees consisting mostly of tourists visiting the beach during the main tourist season. Potential tenants were further limited because of the Knights' restrictions on the type of lessee they desired. They did not want any short-term tenants nor tenants who might be wont to hold rowdy parties in their residence since they wanted the property maintained in good condition in view of their use of it for their personal residence for a significant portion of each year. They had communicated these desires and restrictions on the selection of potential tenants to Ms. Carrigan. She ceased her attempts to locate a tenant when she left the Respondents' employ in August 1986. She took with her the items that Aquatic would need in order to perform its agreement with Knight. She took the key and the bank deposit slips which had been left to her by Mr. Knight and did not inform either Respondent of her actions. Although she attempted to explain her retention of the key to the house, she did not explain her retention of the Knight account deposit slips. If she had not been intending to continue representing Knight, she had no use for either item. Mr. Knight was apparently aware that Ms. Carrigan had both the key and the deposit slips since he did not ask the Respondent to return them and went directly to Ms. Carrigan to obtain possession of them at a later time. Mr. Knight did not discuss his property or the contract terms with anyone but Ms. Carrigan during the pertinent rental period. Ms. Carrigan had not discussed the Knight agreement with Respondent Lewis Hardy and did not discuss it with him or Mr. Knight when she left Aquatic Realty. At no time were any discussions or negotiations held between Knight and Lewis Hardy. In fact, Knight and Hardy had never personally conferred or met until October 25, 1986. Mr. Hardy had no way to contact Mr. Knight since he refused to leave his phone number or an address where he could be reached. Mr. Hardy had no information on Mr. Knight in his office files because Ms. Carrigan had taken that information concerning the Knight transaction with her when she left the Respondents' employ. When Mr. Knight began calling just prior to October 25, 1986, Mr. Hardy began investigating as to who he was. He learned through his office receptionist that there had been a rental contract on the Knights' property which had been breached and that there was a forfeited deposit by the breaching tenant remaining in his escrow account under Knight's name. It was only at this time that he realized that Knight was entitled to a portion of that deposit. He, therefore, surmised what Mr. Knight had attempted to contact him about. He discovered that Aquatic did not have a property management agreement with Mr. Knight but only the pro forma agreement discussed earlier. Since he had no agreement in his records concerning the issue of a forfeited security deposit and believing that Aquatic was legally entitled to compensation for its services performed with regard to the Dobbs' lease, Mr. Hardy, in an attempt to be fair, decided to follow the accepted method of practice in the real estate industry in the Panama City area concerning the manner of distribution of forfeited deposits. Since he had no formal agreement or management contract with Mr. Knight, he felt it was reasonable to follow the accepted method of distribution of forfeited escrow funds outlined in the "Board of Realtors Exclusive Right of Sale Contract" prevailing in the industry in the Panama City area (see TR page 49). The method of distribution provided for in this standard contract called for an equal split of the forfeited deposit amount, which totalled $450. Thus, on October 25, 1986, Mr. Hardy wrote Mr. Knight an escrow account check for $225, which was one-half of the escrow security deposit forfeited by Mr. Dobbs. Respondent Hardy left the check in that amount with his receptionist for Mr. Knight to obtain if he should call concerning the check or come in the office. Mr. Knight came to Aquatic's office shortly thereafter and received the check and asked to speak to Mr. Hardy. This was the first and only contact between Knight and Mr. Hardy. Their meeting lasted less than five minutes, during which Mr. Hardy accounted to Mr. Knight for the deposit money and explained his reasons for the manner in which the funds were apportioned. He explained to Mr. Knight that, based upon the prevailing "Exclusive Right of Sale Contract," which was the basis for his decision, that he was entitled to keep one-half of the forfeited deposit and was therefore paying Mr. Knight the other half. Mr. Knight then inquired, "Is that the best you'll do?" Mr. Hardy replied, "Yes, I think it's fair," whereupon Mr. Knight made no objection to the accounting, took his check and left the office. At no point did he indicate that he felt the division of the funds was wrong or incorrect or that he was due more money. No demand for further accounting or additional funds was ever made and he gave Mr. Hardy no indication which would leave the Respondent with the impression that he was dissatisfied with the accounting. The testimony of Mr. Hardy regarding these facts was corroborated by the testimony of Mr. Wiseman, who was present in the room during that meeting and established that he was in a position to hear the pertinent portions of the conversation. Mr. Knight cashed that check and received the proceeds therefrom and never again contacted Mr. Hardy.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint filed against Respondents, Malcolm Lewis Hardy and Aquatic Realty, Inc., be dismissed in its entirety. DONE and ENTERED this 22nd day of December, 1987, in Tallahassee, 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 22nd day of December, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate Past Office Box 1900 Orlando, Florida 32801 Diane Cleavinger, Esquire 300 East 15th Street Panama City, Florida 32405 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Acting Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue addressed in this proceeding is whether Respondent's life and health insurance agent's licenses should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 626, Florida Statutes and whether Respondent is eligible for renewal of his life insurance agent's license.
Findings Of Fact Respondent, Lemar Bonne Hall, is a licensed life and health insurance agent in the state of Florida. He has been so licensed for more than 10 years. Respondent has made application for the renewal of his life insurance agents license pursuant to Chapter 626, Florida Statutes. In the early 1980's, Respondent and his wife began experiencing credit difficulties due to some inaccurate information on their individual credit reports. The nature of the inaccuracy was not disclosed by the evidence presented at the hearing. Respondent and his wife could not get the inaccurate information removed from their credit reports and in 1983 sought the help of a credit repair service located in Houston, Texas. After paying the credit repair service $1,800.00, the service advised the Halls to create alternate credit reports through the use of different social security numbers. The credit repair service represented that this tactic was legal as long as there was no intent to defraud a financial institution. The credit repair service gave the Hall's a list of social security numbers to use. The social security numbers were numbers of various relatives of the Halls and included Mr. Hall's military identification number. It was not until 1988 that the Halls implemented the repair service's program of creating alternate credit reports. In 1988 the Halls made application to several financial institutions for loans of differing amounts. The loan officers Mr. Hall dealt with had been acquainted with him for several years. Mr. Hall testified that he gave these various officers all of his social security numbers. However, when the loan officer's secretary typed in the information on the loan application, the secretary only inserted one of the many numbers he had given. No substantial evidence was submitted to rebut Mr. Hall's testimony. The Halls made regular payments on the loans until they filed for bankruptcy in 1989. Payments on the loans eventually resumed. The bankruptcy was filed because of a potential judgment which might result from tort litigation involving Mr. Hall. At that time the bankruptcy trustee discovered the anomalous social security numbers and contacted the FBI. Mr. Hall cooperated with the FBI in every respect and is one of the government's witnesses in a nationwide investigation of credit repair services advising people to use the file segregation method of credit repair. However, on August 3, 1989, Respondent was indicted on seven (7) counts of violating Title 18, United States Code, Section 1014, and with seven (7) counts of violating Title 42, United States Code, Section 408(g)(2). All the counts involved felonies, punishable by more than one year imprisonment, and were generally related to obtaining or attempting to obtain a loan from a federally insured financial institution by the use of false social security numbers, misrepresentation or fraud with the intent to defraud such institution. Respondent's wife was also indicated on similar counts. Throughout the FBI investigation and in particular after the Halls' indictment, Ms. Hall's health began to seriously fail her due to the embarrassment and pressure she felt from the criminal charges she and her husband were facing. Therefore, on November 29, 1989, Respondent sacrificed himself for the sake of his wife and entered a plea of guilty to three (3) counts of violating Title 18, United States Code, Section 1014, and three counts of violating Title 42, United States Code, Section 408(g)(2), as charged in the indictment in Case No. TCR-04036. As part of the plea agreement entered into by Mr. Hall, all charges were dropped against Ms. Hall. The plea of guilty, involved in this case, was entered for the convenience of the Halls and not because Mr. Hall had committed any crimes involving moral turpitude. In fact, the evidence did not demonstrate that the Halls had any intent to defraud the financial institutions they dealt with and did not demonstrate that Mr. Hall was untrustworthy or lacked the fitness necessary to engage in the business of insurance. However, the evidence did demonstrate that Mr. Hall violated Section 626.621(8), Florida Statutes, by pleading guilty to a felony or a crime punishable by more than one year imprisonment. Respondent is, therefore, subject to discipline for the violation outlined above.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Respondent be found guilty of the violating Section 626.621(8), Florida Statutes, and that his licenses and eligibility for licensure be suspended for a period of six (6) months, after which Respondent's licenses and eligibility for licensure be reinstated without prejudice. DONE and ORDERED this 14th day of January, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 14th day of January, 1991. APPENDIX TO RECOMMENDED ORDER 1. The facts contained in paragraphs 1, 2, 3, 4, 5 and 6 are adopted in substance, in so far as material. COPIES FURNISHED: Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 David D. Hershel, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Mark Zilberberg, Esquire 217-19 East 6th Avenue Tallahassee, Florida 32302 Don Dowdell General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue Whether Respondent's license under Chapter 509, Florida Statutes, should be suspended or revoked, or a civil penalty imposed for alleged violation of Section 83.49(2) and (3) , Florida Statutes, as set forth in Notice to Show Cause. Respondent Glyn G. Dean appeared at the hearing unaccompanied by legal counsel and he was thereafter advised of his rights as a respondent in an administrative proceeding. He indicated that he understood such rights and desired to represent himself at the hearing.
Findings Of Fact Respondent Glyn G. Dean owns and operates the Elegante Apartments, a five-unit apartment building located at 1040 NE 78th Road, Miami, Florida. Respondent holds a license issued by Petitioner to operate a public lodging establishment pursuant to the provisions of Chapter 509, Florida Statutes. (Testimony of Dean, Teller) On January 28, 1978, Respondent rented Apartment 2 to George Tulloch and his wife on a weekly basis. Thereafter on April 1, 1978, Respondent and Tulloch entered into a lease of the apartment for a period of one year at a rental of $275 per month, including $25 a month as a "damage deposit." The lease provided that the lessee would pay for the cost of repairing all damage to the apartment caused by himself or his family and the cost of removing foreign substances from toilets and sinks. At no time did Respondent inform the lessee as to the manner in which he would hold the payments representing security deposits. Payments in the amount of $275 were made by Tulloch each month from April through October 1978. Thereafter, Tulloch paid as follows: November 30, 1978 - $250.00 December 8, 1978 - 80.00 December 24, 1978 - 50.00 January 23, 1979 - 170.00 February 19, 1979 - 75.00 March 10, 1979 - 100.00 (Testimony of B. Tulloch, Respondent, Respondent's Exhibits 1-2, Petitioner's Exhibit 1) In October 1978, there was a ceiling leak in the apartment which caused a bedroom and kitchen to sustain water damage. A section of the kitchen ceiling also fell and struck Mr. Tulloch who later instituted a claim against Respondent under the latter's insurance policy. (Testimony of Tulloch, Dean, supplemented by Respondent's Exhibit 4) The lessee vacated the apartment at the expiration of the lease on March 31, 1979. At that time, he did not provide Respondent with a forwarding address and it was not until late May that Respondent learned of the same. He thereafter sent a certified letter of his intention to make claim against the security deposit which was received by the lessee on May 28, 1979. He sent a further letter of June 22, 1979, which listed various costs for cleaning and damage to the apartment and reflected that after application of a total of $175 representing deposit payments made during the course of the year, Respondent was due $153 from Tulloch. After termination of the lease, she tenant paid Respondent $650 representing back rent due under the lease. Mrs. Tulloch denied at the hearing that she and her husband had caused any damage to the apartment. (Testimony of Dean, B. Tulloch, Petitioner's Exhibits 3-4, Respondent's Exhibit 3)
Recommendation That Petitioner impose an administrative fine of $100 against Respondent Glyn G. Dean pursuant to Sections 83.49(7) and 509.261(2), Florida Statutes, for violation of Section 83.49(2), Florida Statutes. DONE and ENTERED this 13th day of November, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Dan Brown, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Glyn G. Dean 1040 NE 78th Road Miami, Florida 33138 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATIONS DIVISIONS OF HOTELS AND RESTAURANTS DIVISION OF HOTELS & RESTAURANTS, DEPARTMENT OF BUSINESS REGULATION, Petitioner, vs. CASE NO. 79-1625 H & R No. 23-1935H-3778 GLYN G. DEAN AND GRADY WILSON t/a ELEGANTE APARTMENTS, Respondent. /
Findings Of Fact Respondent is and at all material times has been a licensed real estate broker in the State of Florida. He holds license number 0404010. On or about October 14, 1985, Respondent, as seller, entered into a purchase and sale contract with William and Lois Ehmke, as buyers, with respect to Respondent's condominium known as Unit 502 of Blind Pass Lagoon Condominiums located at 9825 Harrell Avenue, Treasure Island, Florida. The Ehmke contract called for a purchase price of $85,000, which included $15,000 as an earnest money deposit. The contract form provided a paragraph for the closing date, but this was left blank. The only special clause in the contract provided that: The Buyer(s) shall pay $550.00 monthly beginning the date said unit is occupied by buyer and until buyers home in Deluth, Minn. is sold. At the time of closing upon Condo Unit 502, Phase 3, the buyers' shall reimburse the Seller the difference between $550.00 and actual costs to carry the unit per month. ($755.00 plus 90.00 maintenance, or $300.pr [i.e., $300 per month]. The Ehmkes duly paid Respondent the $15,000 deposit and moved into the condominium, which they occupied continuously from October, 1985, through December, 1986. The Ehmkes paid Respondent $550 per month for each month of their occupancy. When making the deal, the Ehmkes were aware that the average time that a house remained unsold on the market in Deluth was 210 days. They knew that the market was very slow because of a sluggish local economy. They expected their house to be sold in about 210 days. After 210 days passed and the house had not sold after the Ehmkes' good faith efforts to sell it, the Ehmkes asked Respondent to refund their $15,000 deposit. Respondent refused. Negotiations resulted in Respondent returning to the Ehmkes $10,000 of the deposit in July, 1987. Respondent did not stand in a confidential or fiduciary relationship with the Ehmkes. William Ehmke had owned and operated a restaurant in Deluth and, after meeting Respondent, initiated discussions with Respondent concerning Mr. Ehmke's desire to purchase property in Florida. Respondent showed the Ehmkes other properties and informed them from the start that Respondent and his daughter owned the condominium unit in question. The mortgage payments, insurance, taxes, and maintenance fees on the condominium unit were about $850 per month in October, 1985. During the period that the Ehmkes occupied the condominium unit, the maintenance fees went up by $30 per month and there was a $1200 special assessment. All of these expenses were borne by Respondent. However, Mr. Ehmke was aware that every month he was losing $300 of his deposit toward these expenses. The fair rental value of the condominium unit from December 1 through April 30 each year is $1400 to $1600 per month. By the time that the Ehmkes vacated the unit, Respondent had paid at least $3000 in monthly expenses over the rent received and the $1200 the special assessment. He had also lost at least $3000 in premium seasonal rentals. Mr. Ehmke has since received his real estate salesman's license. He admits that the $5000 retained by Respondent does not cover Respondent's out-of- pocket expenses. He also admits that he has no complaints about the transaction in retrospect. Frank Myles owns all of the stock of Myles, Inc., which owned Unit 202 of Blind Pass Lagoon Condominiums in Treasure Island. Having been neighbors with Respondent for two years and also involved part-time in real estate sales, Mr. Myles mentioned to Respondent that he was trying to sell his unit. After their conversation, Respondent delivered to Mr. Myles a contract for the purchase and sale of his unit. The contract was executed by all parties on July 29, 1986. The buyers were Ralph and Margaret Magno, who had recently purchased another unit in the same complex through Respondent as the broker. The purchase price was $94,000 to be paid cash at closing, as Mr. Myles had said he desired. The contract contained no contingencies, such as for financing, which was also consistent with Mr. Myles' previous instructions to Respondent. The contract called for a closing on or before August 25, 1986, and provided that time was of the essence. The Magnos paid an earnest money deposit of $8000 to Pat Jano and Associates, "reg. real estate broker." The form language of the contract provided that Respondent was to "hold said earnest money or deposit and act as escrow agent until closing of deal ..." The contract elsewhere provided that if the purchaser failed to perform any of his obligations, then he "shall forfeit said earnest money or deposit; and the same shall be retained by the Seller as liquidated damages, and the escrow agent is hereby authorized by the purchaser to pay over to the Seller the earnest money or deposit." In the event of a default by the purchaser, the earnest money would be divided equally between Respondent and the seller. On or about August 13 or 14, 1986, the Magnos discovered that the financing terms that they had arranged with a third-party lender could no longer be obtained. Respondent promptly notified Mr. Myles of the problem. Mr. Myles and Respondent tried unsuccessfully to resolve the problem with the lender, which ultimately declined to make the loan. When first informed of the buyers' financing problems, Mr. Myles told Respondent that the two of them should push the sellers through to closing. (Tr. 82.) Immediately after this conversation with Respondent, Mr. Myles stepped aside so that his lawyer could handle what had become a "shaky" deal. (Tr. 84.) On August 16, 1986, Respondent refunded all of the earnest money to the Magnos by delivering to Mr. Magno a check drawn on Respondent's escrow account in the amount of $8000 and payable to Mr. Magno. Respondent returned the deposit without the prior knowledge of Mr. Myles or consent of Myles, Inc. (Tr. 73 and 8.) Mr. Myles' lawyer sent a letter dated August 20, 1986, to Respondent informing him that Myles, Inc. intended to proceed to closing and would not consent to the release of the earnest money deposit to the Magnos. Mr. Myles appeared at the closing at the time and place specified in the contract. The Magnos did not appear. Myles, Inc. never received its share of the forfeited deposit. Myles, Inc., through Mr. Myles, stated in a letter dated May 13, 1987, that it was "no longer" pursuing any legal action against Respondent and that no suits were filed and no further action would be taken. During a lengthy meeting with Petitioner's investigator, Respondent never suggested that he had had Myles' permission to return the Magnos' deposit. Rather, he said only that he had returned the deposit out of "loyalty" to the Magnos. At the hearing, Respondent testified that he told Mr. Myles that Respondent was going to return the deposit to the Magnos and Mr. Myles' only reaction was that "those are the breaks." (Tr. 129.) This apparent inconsistency between the testimony of Mr. Myles and Respondent, both of whom were credible witnesses, is reconciled by the finding that Mr. Myles never consented to the release of the earnest money, but Respondent misunderstood their conversation in this regard. Since October 16, 1986, Respondent's principal place of business has been 7345 Bay Street, St. Petersburg, Florida. Respondent failed to maintain a sign at this location from October 16, 1986, through January 8, 1987. He was having a sign prepared by a third party during that time.
Recommendation Based on the foregoing, it is recommended that a final order be entered dismissing Counts I, II and IV of the Administrative Complaint and finding Respondent guilty of the allegations set forth in Counts III and V of the Administrative Complaint. It is recommended that the Final Order impose an administrative fine of $1000 with respect to Count III and a reprimand with respect to Count V. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 20th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4391 Treatment Accorded Petitioner's proposed Findings 1,3-5. Adopted. 2,6. Rejected as unnecessary and irrelevant. The location of Respondent's "principal office and each branch office" is relevant under Section 475.22 to determine where he was required to maintain a sign. The statute does not refer to the office registered with Petitioner. 7-8,16. Adopted. 9-.14. Adopted. 15,17. Rejected as unnecessary. 18. Rejected as unnecessary and irrelevant for the reason set forth for rejecting the proposed findings in paragraphs 2 and 6. Treatment Accorded Respondent's Proposed Findings Rejected as legal argument, except that Respondent and the Ehmkes entered into a contract. Last sentence - rejected as unnecessary and irrelevant. Remainder rejected as contrary to the greater weight of the evidence. Rejected as unnecessary, except that the blast sentence is adopted as to the sign being made. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Brian E. Johnson, Esquire 7190 Seminole Boulevard Seminole, Florida 34642 Darlene F. Keller Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the posthearing memorandum and the entire record compiled herein, I hereby make the following relevant findings of fact: Respondent, Alfred Rifflard, Jr., during times material herein, was a licensed real estate broker-salesman and is the holder of license number 0338064. Respondent, Thomas L. Narog, during times material herein, was a licensed real estate salesman and is the holder of license number 0309097. On approximately May 24, 1982, Respondent Narog represented to John F. Wodalski that Respondent Rifflard, as an investor, was interested in purchasing certain real property owned by Wodalski. Based on discussions with seller Wodalski, Wodalski and Respondent Alfred Rifflard entered into a deposit receipt and contract for sale and purchase of the Wodalski property. The purchaser is listed on the deposit receipt contract as Alfred Rifflard and/or assigns." (Petitioner's Exhibit 3) The negotiations for the sale of the subject property were conducted at the bar of a country club where both Respondent Naroq and seller Wodalski were employed. Respondent Rifflard was aware that the subject property had been on the market for approximately eighteen months. Seller Wodalski expressed (to Respondent Narog) disenchantment that he was unable to move the property as he had planned to purchase other properties with the proceeds received from the sale of the subject property. Respondent Narog attempted to sell the Wodalski property to enable him (Wodalski) to purchase the other property. During the negotiations for the sale of the subject property, Respondent Wodalski tendered a copy of his business card to seller Wodalski. That business card reflected that Respondent Rifflard was a licensed real estate salesman. Following the execution of the deposit receipt contract by Respondent Rifflard, Respondent Rifflard showed the property to approximately three prospective purchasers in an effort to sell the property prior to the purported closing date. Federal Land Title Corporation of Ft. Lauderdale, Florida was commissioned to handle the closing of the property from seller Wodalski to Respondent Rifflard and/or his assigns. This is confirmed by a letter dated August 19, 1982 to seller Wodalski wherein loan processor Kathy Bradley advised the seller that she expected to expedite the closing of the Wodalski property. (Petitioner's Exhibit 4) Upon receiving the above-referred letter from Federal Land Title Corporation, seller Wodalski demanded a tender of the $1,000 earnest money deposit which is referred to in the deposit receipt contract executed by Respondent Rifflard. At that time, Respondent Narog was told that no monies could be disbursed to him prior to closing. Seller Wodalski called off the closing based on his claim that another broker advised him that it was illegal for an undisclosed licensed real estate salesman to purchase property in his name. Based on the testimony of Respondents Rifflard and Narog including the testimony of the Petitioner's investigator, Anthony Nicola, who investigated the subject complaint, it is specifically found herein that the Respondents disclosed the fact that Rifflard was a licensed real estate salesman at the time the deposit receipt contract was executed herein. In making this finding, consideration was given to seller Wodalski's testimony to the effect that he was busy 2/ at the time that he entered the deposit receipt contract and that it was indeed possible that Respondent Rifflard tendered a business card to him at the time he entered the subject contract. Paragraph two of the deposit receipt contract reveals that the method of payment includes a $1,000 deposit, in the form of a note, which would be returned to the buyer at closing. It is undisputed by the Respondents that no earnest money deposit note in the amount of $1,000 was given the buyer's attorney to be held in trust until the closing was completed. The Respondents acknowledged that it was an error on their part to fail to execute the earnest money deposit as Respondent Rifflard agreed in the subject deposit receipt contract. Further, Respondent Rifflard urges that his failure to execute a note was an oversight on his part.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondents, Alfred Rifflard, Jr. and Thomas L. Narog, be privately reprimanded by the Petitioner, Division of Real Estate, based on their failure to place in deposit, to be held in trust, a $1,000 earnest money deposit in connection with the transaction surrounding the deposit receipt and contract for sale and purchase entered into by Alfred Rifflard, Jr., as purchaser of certain real property owned by John Wodalski. RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida. JAMES E. BRADWELL 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 31st day of January, 1984.
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
