Findings Of Fact Having heard the testimony and considered the evidence presented at the hearing, the undersigned finds as follows: At all relevant times, respondent was a licensed mortgage broker, holding license number 3256. (Exhibit A) On November 26, 1974, Carl Sciacca and George Williams, the general partners of a limited partnership known as University Professional Plaza Ltd., entered into a written contract with respondent to procure a mortgage loan commitment. Mr. Sciacca first went to respondent because respondent had been highly recommended to him. The amount of the mortgage was to be $2,450,000.00 and the commitment was to be procured "on or before 21 days from date all required exhibits are presented...". The agreement further provided that University would pay to respondent a brokerage fee in the amount of $24,500.00 upon funding of the loan. (Exhibit B) On the same date, November 26, 1974, University delivered to respondent a check in the amount of $7,500.00. This check bears the notation "For partial brokerage commission to be held in escrow." (Exhibit C) On November 27, 1975, respondent used said check to purchase a cashier's check and the money was never placed in escrow by respondent. While some correspondence from someone denoting an interest in the loan did transpire, the loan was never consummated. Sometime after the expiration of 21 days from November 26, 1974, Mr. Sciacca requested respondent to refund the deposit. A dispute arose between respondent and University regarding whether or not respondent had received from University all the required documents pertaining to the procurement of the loan. Respondent stated that University had not acted in good faith and thus was not entitled to a refund of the deposit. When attorneys were brought into the picture, it was learned that respondent no longer had all the deposit money. Respondent still has not refunded the $7,500.00 to University, however, respondent and University have now entered into an agreement whereby respondent and his wife executed a mortgage note to University in the amount of $9,000.00 secured by a second mortgage on their condominium apartment. This arrangement is satisfactory to University and represents complete settlement of the $7,500.00 owed to University, along with attorney There is some dispute in the evidence as to the parties' understanding of both the disposition to be made of the $7,500.00 deposit when the check was delivered to respondent and the actual terms of the mortgage loan commitment agreement. It was Sciacca's and William's opinion that all necessary documents for the procurement of the loan had been delivered to respondent and that if a loan were not procured within 21 days, the deposit was to be returned to University. It was respondent's opinion that the 21 days was to run from the date of receipt. of all necessary documents and that respondent had never received from University an accurate financial statement. Respondent further testified that he informed Mr. Sciacca of some problems involved with procuring the loan and that he would need some of the $7,500.00 to straighten out those problems. It was respondent's testimony that, despite the notation on the check "to be held in escrow", Sciacca told respondent to use whatever he needed to procure a loan.
Recommendation Based upon the findings of fact and conclusions of law set forth herein, it is recommended that: Respondent be found not guilty of violations of F.S. Section 494.05(1)(a) , (b) , or (c) or Section 494.05(2); Respondent be found guilty of violations of F.S. Section 494.05(1)(e) , (f) , and (g) and F.A.C. Rule 3-3.06(7) recognizing that the latter two statutes and the Rule involve the same offense - the failure to place the deposit in a trust fund or escrow account; and The Division of Finance issue, in such manner as it deems appropriate, a public reprimand or censure regarding respondent's violations as set forth above. Respectfully submitted and entered this 31st day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Joseph M. Ehrlich, Esquire Department of Banking and Finance Division of Finance The Capitol Tallahassee, Florida 32304 Barry Chapnick, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Legal Annex Tallahassee, Florida 32304 Attorney for Division of Finance Steve E. Moody, Esquire MOODY & JONES 207 E. Broward Boulevard Suite 200 Fort Lauderdale, Florida 33301 Jack E. London, Esquire 2134 Hollywood Boulevard Hollywood, Florida 33020 Attorney for Carl Sciacca and George Williams, members of the general public
Findings Of Fact Respondent is an applicant to register as a securities salesman with Realty Income Securities, Inc., said application having been submitted to the Division of Securities on February 2, 1975 and is currently pending (Testimony of Dove). During the period of approximately February through - September, 1973, Respondent, a registered mortgage broker, was employed by Financial Resources Corporation of Fort Lauderdale, Florida, in the sale of promissory notes secured ostensibly by first mortgages upon land located in Highlands County, Florida. These notes and security documents were issued by Equitable Development Corporation of Miami Beach, Florida. The notes were payable to "investors" at 14 percent interest per year, payable monthly for several years at which time the full principal balance would become due. The mortgage deeds recited that Equitable Development Corporation held the land which secured the notes in fee simple, free and clear of all encumbrances except real estate taxes. The mortgage deeds further recited that Equitable reserved the right to convey the land to a purchaser under an installment land contract subject to the lien of the mortgage and would deliver to the National Industrial Bank of Miami, an escrow agent, a copy of any such agreement for deed and a quit-claim deed which would be held in escrow. They also provided a procedure by which under any default of Equitable, the escrow agent would deliver the escrow documents to the investor (Testimony of Dove, Petitioner's Composite Exhibit 1). Respondent's association with Financial Resources Corporation came about as a result of a visit by Mr. Robert Rinehart, President of the firm, who explained the mortgage sales program to him and stated that the security instruments were indeed first mortgages. Additionally, Rinehart supplied Respondent with brochures, letters, and documents containing questions and answers concerning the program and the protection afforded thereby to investors. Respondent personally viewed the property in question at Highland Park Estates and observed that over a hundred homes had been constructed which were of a value from $14,000 to $40,000. He also observed that docks had been built on the lake in the project area and that almost all of the roads had been paved. He was shown the MIA appraisal on the property which stated that Rinehart's representations as to property values were accurate. Equitable further represented to him that the notes in question were exempt securities in that they came within the provisions of Section 517.06(7), F.S., concerning the issuance or sale of notes secured by a specific lien upon real property created by mortgage or security agreement. In fact, Respondent became so convinced of the merits of these transactions that he had his mother invest twenty thousand dollars in the program (Testimony of Respondent, Watts; Respondent's Exhibits 1,2). In September 1973, Respondent formed Florida Income Resources Corporation, a mortgage brokerage firm. He did not sell any of the Equitable notes for a period of some months and, prior to commencing sale of them through his firm in the Spring of 1974, his attorney looked over the various aspects of the Equitable program and advised him that everything seemed "open and above board." Respondent thereafter on April 9 and August 1, 1974 sold to William H. Mott secured promissory notes of Equitable Development Corporation in the amounts of $2,000 and $2,250 respectively (Testimony of Respondent, Zawadsky; Petitioner's Composite Exhibit 1). During the period of these sales, letters of Albert George Segal, attorney, were being sent to investors advising them that he had examined the title to the real property purchased and that it was free and clear of encumbrances and constituted valid first mortgages (Respondent's Exhibit 3, Stipulation). Administrative proceedings were brought against Respondent by the Division of Finance involving sales of the notes in question resulting in a settlement by stipulation whereby Respondent did not acknowledge any wrongdoing, but agreed to a suspension of his mortgage broker's registration for two years. Respondent's firm secured no appraisals or title searches on the property involved in the sales to Mott (Testimony of Respondent).
Recommendation That the allegations be dismissed and that Respondent Edgar A Dove be registered as a securities salesman if he otherwise meets the qualifications set forth in Section 517.12, Florida Statutes and Chapter 3E-30, Florida Administrative Code. DONE and ENTERED this 15th day of March, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Fred O. Drake, III Assistant General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 H. Gordon Brown, P.A. 301 W. Camino Gardens Boulevard Suite B P.O. Box 1079 Boca Raton, Florida 33432
Findings Of Fact A Quit-Claim Deed was executed the 3rd day of March, 1975, by Bayshore 21, Inc., first party to Marc Broxmeyer an undivided 70 percent interest; Gerald Schefflan and Pearl Schefflan, his wife, an undivided 20 percent interest; and Yetta Young an undivided 10 percent interest. The deed was recorded in Official Records Book of Dade County, Florida. The deed reflects that no documentary stamp taxes were affixed to the deed. At the time of the conveyance there existed upon the property three outstanding mortgages: one in the amount of One Million Four Hundred Fifty Thousand Dollars ($1,450,000) in favor of Washington Federal Savings and Loan; one in the amount of One Million Eight Hundred Eighty Thousand One Hundred Six Dollars ($1,880,106) in favor of Sidney Salomon, et al.; and Twelve Thousand Five Hundred Dollars ($12,500) in favor of Harold Kravitz. The total consideration for the conveyance amounted to Three Million Three Hundred Forty- Two Thousand Six Hundred Six Dollars ($3,342,606). The undisputed facts of the transaction as outlined at the hearing and agreed to by the Petitioners' attorney are as follows: Prior to August 17, 1974, all the outstanding stock of a corporation known as Tepmon of Florida, Inc., (Marvin Glick, presidents and controlling person and Eugene J. Howard, secretary) was held by Sidney Salomon, Jr., Hid Salomon, III, Elliot Stein, the Estate of Preston Estep and John Soult. On or about April 17, 1974, these people entered into an agreement for purchase and sale of corporate stock with Bayshore 21, Inc., pursuant to which Bayshore 21, Inc., agreed to purchase for Three Million Five Hundred Thousand Dollars ($3,500,000) all of the outstanding capital stock of Tepmon of Florida, Inc. At the time, Tepmon of Florida, Inc., had as its only asset a certain parcel of real property known as the Golden Strand Hotel, as shown by suit, Shoprite Air Conditioning, Inc. v. Tepmon, Inc., et al. in the Circuit Court of Dade County, Florida, Case No. 74-29983. Pursuant to the purchase and sale agreement, a closing was to be held in various stages on August 19 and 20, 1974, at which time Sidney Salomon, et al., delivered to Bayshore 21, Inc., all of the capital stock of Tepmon of Florida, Inc. Bayshore 21, Inc., in turn executed and delivered at the closing a chattel mortgage in the amount of One Million Eight Hundred Eighty Thousand One Hundred Six Dollars ($1,880,106), the security for which there was sixty-nine (69) shares of capital stock of Tepmon of Florida, Inc., which stock represented the outstanding stock of Tepmon of Florida, Inc., and carried with it the ownership and control of said corporation. Also given to Sidney Salomon, et al, by Bayshore 21, Inc., at the closing was a purchase money mortgage in the amount of One Million Eight Hundred Eighty Thousand One Hundred Six Dollars ($1,880,106), which mortgage secured the real property known as the Golden Strand Hotel. The reason for the two separate security devices, one the chattel mortgage secured by the outstanding sixty-nine (69) shares of Tepmon of Florida, Inc., stock and the other the real property mortgage secured by the Golden Strand Hotel, was that the parties contemplated that upon Bayshore 21's acquisition of the outstanding Page 3 of 7' pages capital stock of Tepmon of Florida, Inc., Tepmon would be dissolved and completely liquidated. Mindful that such liquidation would render valueless as collateral the capital stock of Tepmon, the parties provided in a collateral security agreement, dated August 20, 1974, that the purchase money real estate mortgage would constitute the substitute collateral security for repayment of the outstanding purchase money obligation owed by Bayshore 21, Inc., to Sid Salomon, et al., effective upon the dissolution of Tepmon of Florida, Inc. Subsequent to acquiring all the capital stock of Tepmon of Florida, Inc., Bayshore 21, Inc., did in fact effectuate a complete dissolution and liquidation of Tepmon of Florida, Inc. Pursuant to such dissolution, the sole asset of Tepmon of Florida, Inc, the Golden Strand Hotel, should have become titled in the name of Tepmon of Florida, Inc.'s sole stockholder, Bayshore 21, Inc., in order to give effect to the validity of the purchase money mortgage. This is not what occurred however, as Sidney Salomon, et al., point out in their Cross-Claim to the aforementioned suit, the truthfulness of which assertions have been admitted by the Petitioners. The September 5, 1974 deed of conveyance of the Golden Strand Hotel from Tepmon of Florida, Inc., to Petitioners (which should have been to Bayshore 21, Inc.) contained only minimum stamps in the amount of eighty-five cents (85). As a result of the Cross-Claim in the aforementioned suit filed by Sidney Salomon, et al., against Petitioners, a stipulation and agreement was entered into resolving the matter in a manner which gave effect to the purchase money real estate mortgage given by Bayshore 21, Inc., to the Salomons. Pursuant to such stipulation, the Petitioners agreed that "the allegations made in the Cross Claim . . . are true and correct and Cross Claimants are entitled to the relief prayed for therein. Cross Defendants [Petitioners] have no defenses thereto, legal or equitable, or any kind whatsoever Pursuant to this stipulation, the Petitioners agreed to execute Quit-Claim Deeds conveying any interest they may have received in the property pursuant to the September 5, 1974 deed of conveyance from Tepmon of Florida, Inc., to Bayshore 21, Inc., the entity which was the sole stockholder of Tepmon of Florida, Inc., at the time of its dissolution and liquidation. By Quit-Claim Deeds dated January 2, 1975, Gerald and Pearl Schefflan conveyed their interest to Bayshore 21, Inc., Yetta Young conveyed her interest back to Bayshore 21, Inc., Marc Broxmeyer conveyed his interest back to Bayshore 21, Inc., and the last Board of Directors of Tepmon of Florida, Inc., comprised of Marvin Glick and Eugene Howard, also conveyed any interest that entity may have retained back to Bayshore 21, Inc. At this point Bayshore 21, Inc., finally held the title it was supposed to have acquired upon the dissolution and liquidation of Tepmon of Florida, Inc. Also at this point the validity of the purchase money real estate mortgage given by Bayshore 21, Inc., to Sidney Salomon, et al., was reestablished and the parties were returned to the posture called for and required by their purchase and sale agreement dated April 17, 1974. When, on March 3, 1975, Bayshore 21, Inc., conveyed title to the Golden Strand Hotel to the Petitioners in this action, by unstamped deed, the conveyance was a voluntary conveyance. At the time of the conveyance, three outstanding mortgages encumbered the real property. Such mortgages were a One Million Four Hundred Fifty Thousand Dollar ($1,450,000) mortgage in favor of Washington Federal Savings and Loan; the One Million Eight Hundred Eighty Thousand One Hundred Six Dollar ($1,880,106) purchase money mortgage in favor of Sidney Salomon, et al.; and a Twelve Thousand Five Hundred Dollar ($12,500) mortgage in favor of Harold Kravitz. When Petitioners took title to this real property, they took title subject to three outstanding mortgages. The Hearing Officer further in summary finds: The transactions related in the foregoing findings of fact ultimately transferred title of real property to Bayshore 21, Inc., pursuant to an agreement dated April 17, 1974. Fee simple title was then transferred from Bayshore, Inc., to Petitioners by Quit-Claim Deed dated March 3, 1975, subject to mortgage liens.
Recommendation Affirm the assessment of documentary stamp taxes made by the Respondent in this cause. DONE and ORDERED this 30th day of March, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold F. X. Purnell, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 Eugene J. Howard, Esquire 2212 Biscayne Boulevard Miami, Florida 33137
The Issue Whether the application of the Respondent Melvin Haber for a mortgage broker's license should be approved or denied.
Findings Of Fact Respondent Melvin Haber applied for registration as a mortgage broker by filing an application for registration as a mortgage broker on December 20, 1976. On January 14, 1977, Petitioner issued to Respondent its Notice of Intent to Deny Respondent's Application for registration as a mortgage broker. The reasons for such denial were set forth in an accompanying document entitled "Administrative Charges and Complaint." Petitioner Division of Finance had determined that Respondent Melvin Haber did not meet the proper qualifications necessary to be licensed as a mortgage broker and that he had, through Guardian Mortgage and Investment Corporation, charged and received fees and commissions in excess of the maximum allowable fees or commissions provided by the Florida Statutes; and although he had stated otherwise on his application, Respondent in fact had been charged in a pending lawsuit with fraudulent and dishonest dealings; and had demonstrated a course of conduct which was negligent and or incompetent in the performance of acts for which he was required to hold a license. By letter dated January 19, 1977, to Mr. Joseph Ehrlich of the Comptroller's Office, Tallahassee, Florida, Petitioner received a request from the Respondent Melvin J. Haber in which he acknowledged receipt of his rejection for mortgage broker's license and stated, "I received notice today of my rejection for my mortgage broker's license. I would, therefore, withdraw my application and re- quest return of $75.00 as I will not answer the rejection as I can't afford an attorney at this time." A Special Appearance to Dismiss Complaint was entered on February 11, 1977. The grounds are as follows: "1. The Department of Banking and Finance does not have jurisdiction over this Respondent. There is no jurisdiction in any administrative proceeding over this Respondent. There is no pending application for any mortgage broker's license by this Respondent. The application originally filed for the mortgage broker's license was withdrawn on January 19, 1977. A copy of the letter withdrawing application is attached hereto as Exhibit A. The proceedings are moot and would serve no useful purpose. Permitting this tribunal to proceed on a non-existent request for broker's license would deny to the Respondent due process of law, equal protection of the law, and his rights under the State and Federal Constitutions applicable thereto." On March 4, 1977, the Division of Administrative Hearings received a letter from Eugene J. Cella, Assistant General Counsel, Office of the Comptroller, State of Florida, requesting a hearing in this cause be set at the earliest practical date, and enclosed in the letter requesting a hearing was a copy of the Division of Finance's Administrative Complaint and a copy of the Respondent's Special Appearance to Dismiss the Complaint. A hearing was set for April 22, 1977, by notice of hearing dated March 30, 1977. A letter was sent by Irwin J. Block, Esquire, informing the attorney for the Petitioner that the Respondent "intends to permit the matter to proceed solely upon the written Special Appearance to Dismiss Complaint heretofore filed." Evidence was submitted to show that between May 29, 1973 and continuing through November 25, 1976, Guardian Mortgage and Investment Corporation and Melvin Haber as Secretary/Treasurer charged and received fees and commissions in excess of the maximum allowed fees or commissions in violation of the Florida Statutes and the Florida Administrative Code. Respondent's application for registration as a mortgage broker indicated that Petitioner was not named in a pending lawsuit that charged him with any fraudulent or dishonest dealings. However, on August 5, 1976, a suit was filed in Dade County, Florida, which charged the Petitioner and others with fraud in violation of the Florida Securities Law. The application was filed by Respondent, was processed by Petitioner and a Notice of Intent to Deny Respondent's Application for Registration was filed together with Administrative Charges and Complaint. The Division of Administrative Hearings has jurisdiction upon request of a party for a hearing once an application has been received and the Division has investigated and fully considered the application and issued its Notice of Intent to Deny and filed a Complaint on the applicant. In this cause the question of whether the applicant is entitled to a refund of fees also must be resolved. An orderly procedure to finalize the resolution of the issues is desirable and necessary. The Proposed Order filed by the Petitioner has been examined and considered by the Hearing Officer in the preparation of this order.
Recommendation Deny the application of applicant Melvin Haber for a mortgage broker's license. Refund the Seventy-Five Dollar ($75.00) fee Respondent paid upon filing the application. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Assistant General Counsel Office of the Comptroller Legal Annex Tallahassee, Florida 32304 Irwin J. Block, Esquire Fine, Jacobson, Block, Goldberg & Semet, P.A. 2401 Douglas Road Miami, Florida 33145
The Issue The issue presented for decision herein is whether or not the Respondents' retention of and failure to deliver an earnest money deposit constitutes conduct violative of Section 475.25(1)(a), Florida Statutes, and thereby failed to account and deliver monies which came into their possession and was converted in contravention of Section 475.25(1)(c), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Pursuant to an administrative complaint filed approximately April 25, 1980, the Petitioner, Department of Professional Regulation, Board of Real Estate, seeks to suspend, revoke or otherwise discipline the Respondents as licensees based on conduct which will be set forth hereinafter in detail. Respondent, Richard A. Anglickis, is a registered real estate broker and is issued license number 00018669. Respondent, American Heritage Realty, Inc., is a registered corporate real estate broker, having been issued license number 169478. Respondent Anglickis is registered with Petitioner as the active firm member broker of and for Respondent, American Heritage Realty, Inc. On March 1, 1979, Michael T. and Louise E. Keating of Pineola, North Carolina, entered a contract for purchase and sale of real property from Mr. and Mr. Aubrey of Springfield, Ohio, for a total sales price of $23,900.00. The transaction was scheduled to close on or before May 15, 1979. The contract was contingent upon the purchasers obtaining a $19,000.00 new purchase money mortgage for which application was made with First Federal of DeSoto in Lehigh, Florida. Respondent, through its sales agents, assumed the task of obtaining purchase money financing for the Keatings. Upon entering the contract, purchasers gave Respondents a $900.00 earnest money deposit in the form of a check payable to Respondent, American Heritage Realty, Inc., which was to be held in escrow according to the terms of the contract. The Keatings also tendered to Respondent, American Heritage Realty, Inc., an additional deposit of $4,000.00 in the form of a check which was also to be held in escrow until the transaction closed on May 15, 1979. By letter dated May 8, 1979, First Federal of DeSoto advised Respondent and the Keatings that their application for a $19,000.00 purchase money first mortgage financing could not be approved since "their debt ratio of 44 percent far exceeded First Federal's guidelines of a 33 percent debt ratio". (Petitioner's Composite Exhibit B.) Robert Campbell, a mortgage broker for Lee County Mortgage and Title Company, presented the application to secure financing for the Keatings. Mr. Campbell did not submit any application for mortgage financing for the Keatings other than the application submitted on behalf of the Keatings to First Federal of DeSoto. On May 11, 1979, during a telephone conversation with Mrs. Keating, Mr. Campbell advised Mrs. Keating that her loan application for mortgage financing had been rejected and inquired if the Keatings were willing to make an additional down payment in the amount of $7,000.00. The Keatings advised Mr. Campbell that they would consider making the larger down payment but declined to do so inasmuch as Mr. Keating had become ill and they were of the opinion that they needed to retain as much ready cash as possible until such time as they sold their home in North Carolina. The Keatings made it clear to Messrs. Campbell and Respondent, Richard A. Anglickis, that they were not interested in closing the transaction if it required making an additional down payment of $7,000.00. (See Petitioner's Exhibit D.) Also, the Keatings were of the opinion that they were receiving a refund of $4,775. which amount represented the total down payment less the maximum amount of forfeiture of $125.00 as provided for in paragraph two (2) of the contract. (Petitioner`s Exhibit A.) Paragraph two (2) under "Terms and Conditions of Sale" provides in pertinent part that: "In the event PURCHASER'S application for mortgage financing is not approved within 120 days from date hereof, all monies receipted for, less an amount not to exceed $125.00 to reimburse BROKER for costs and expenses incurred, will he returned to the PURCHASER and this contract will be null and void." In this regard, Petitioner stipulated that the amount which should have been withheld as a forfeiture should not have exceeded the maximum amount of $125.00. The Keatings maintained throughout that they considered that they would be getting a refund of approximately $4,775.00. At no time did the Keatings indicate to Respondents' agents that they were agreeing to forfeit the $900.00 deposit if the transaction did not close. In this regard, the Keatings testified that they preferred to lose 900.00 as opposed to the entire down payment of $4,900.00; however, they at no time agreed to a forfeiture of any of the deposit since the transaction did not close. The Keatings received a refund of $4,000.00 from Respondent, Richard A. Anglickis, on approximately May 21, 1979. (Petitioner's Exhibit C.) By letter of same date, Respondent Anglickis advised the Keatings that the tender of the $4,000.00 represented a "full refund of the cancellation of your contract number R-1981". Respondent Anglickis added that that payment confirmed an agreement and understanding between the Keatings and a Mr. Marciano of Respondent's staff. RESPONDENT'S DEFENSE Respondents urged that the Keatings anticipatorily breached the purchase contract on approximately May 18, 1979. In support of this position, Respondent points to the position that when the Keatings advised that they were no longer interested in pursuing the matter further if additional monies were paid, that there was still remaining approximately seventy-five (75) days within which Respondent had time to secure or otherwise arrange financing for the Keatings. However, Respondent Anglickis and mortgage broker Campbell conceded that the mortgage financing application submitted to First Federal of DeSoto was the only mortgage application submitted on behalf of the Keatings. Respondent Anglickis considered that the Keatings underwent what is commonly referred to as "buyer's remorse" and wanted to cancel the contract based on his understanding of the conversations between the Keatings and Mr. Marciano of his staff. (Testimony of Richard A. Anglickis and Robert Campbell.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondents, Richard A. Anglickis and American Heritage Realty, Inc., be ordered to return the entire nine hundred dollar ($900.00) earnest money deposit paid by the Keatings under the Contract of Purchase and Sale of Real Property from Mr. and Mrs. Aubrey of Springfield, Ohio, within thirty (30) days of the rendition of the Petitioner's final order in this administrative proceeding. That in the event Respondents fail to refund to the Keatings the full deposit, their licenses, numbers 0018669 and 169478, be suspended for a period of one (1) year. That upon full refund to the Keatings of their entire earnest money deposit, the Respondents be issued a written reprimand cautioning them against further violations of Section 475.25, Florida Statutes. RECOMMENDED this 19th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980.
Findings Of Fact On November 15, 1976, the Outrigger Club, Inc., a Florida corporation, through its president, Ervin Freeman, and its Secretary, Joan Dimon, executed a warranty deed conveying all right, title and interest, in and to certain property located at Northeast 135th Street and Biscayne Boulevard, North Miami, Florida, to Petitioner, Biscayne South, Inc. (hereafter Biscayne South), a Florida corporation. The warranty deed was recorded with the Clerk of the Circuit Court of Dade County, Florida, on November 16, 1976. On November 22, 1976, Biscayne South executed a mortgage deed in favor of Fidelity Mortgage Investors, a Massachusetts business trust, as a second mortgage on the same parcel of land to secure the payment of a promissory note in the principal sum of $1,500,000.00 which note was made by Outrigger Club, Inc., on the same date in favor of Fidelity Mortgage Investors. On November 22, 1976, Outrigger Club, Inc., as the "borrower" executed a future advance agreement with Fidelity Mortgage Investors as "lendor". The future advance agreement provides for the advancement of the sum of $1,500,000.00 to be secured by a prior mortgage dated October 27, 1972, executed by Outrigger Club, Inc., in favor of Fidelity Mortgage Investors, which mortgage provided for future advances. On November 22, 1976, a construction loan and disbursement agreement was executed by the parties thereto which provided that the $1,500,000.00 advance be paid to Miami National Bank as disbursement agent for the benefit of Biscayne South. On November 23, 1976, the mortgage deed and the future advance agreement were recorded in the public records of Dade County, Florida, and on that same date, the warranty deed was rerecorded in the public records of Dade County, Florida. Because the 1.5 million dollars was paid to Miami National Bank to be disbursed for future construction work on a draw-down basis, Outrigger Club, Inc., the grantor, never received the 1.5 million dollars. The warranty deed provides in paragraph 9 thereof that the conveyance is subject to: a second mortgage wherein the Outrigger Club Inc., is mortgagor and the trustees of Fidelity Mortgage Investors, a Massachusetts business trust, is mortgagee, dated the day of November, 1976, which said mortgage is given as additional collateral for payment of certain sums as provided under a settlement and release agreement between the Outrigger Club, Inc., a Florida corporation, and Lawrence F. Lee, Jr., and others as trustees of Fidelity Mortgage Investors, a Massachusetts business trust dated the 16th day of January, 1976. Neither the Department of Revenue nor Biscayne South have introduced evidence to establish that such a mortgage in fact exists or if it did, the value of such mortgage. The only mortgage in evidence is Respondent, Department of Revenue's Exhibit 2, which shows Biscayne South as mortgagor rather than the Outrigger Club, Inc., as recited in the warranty deed. However, the future advance agreement introduced as Respondent's Exhibit No. 3, establishes the existence of a mortgage encumbering the subject property in which the Outrigger Club, Inc., is mortgagor and Fidelity Mortgage Investors is mortgagee. Such mortgage is dated October 27, 1972, and not dated with the month of November, 1976, as recited in paragraph 9 of the warranty deed. As recited in the future advance agreement, the mortgage of October 27, 1972, secured an indebtedness of $7,214,000.00. The mortgage provided that future advances could be made to Outrigger Club, Inc., not to exceed in the aggregate $16,500,000.00. The future advance agreement provides that an additional advance of $1,500,000.00 is to be made to Outrigger Club, Inc., thereby increasing the indebtedness represented by the October 27, 1972, mortgage to the aggregate sum of $8,715,000.00. In other words, the buyer of the property sought to borrow an additional 1.5 million dollars. The lender, in order to achieve priority of lien to secure its loan, treated the funding as an advance against a preexisting mortgage originally binding the seller, but then delivered the 1.5 million dollars directly to Miami National Bank for the benefit of the buyer. Accordingly, the seller never received the proceeds of the loan but rather participated in a "book transaction" for the benefit of the buyer and the lender.
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
The Issue The issue in this case is whether Respondents sold subdivided lots in violation of provisions of Chapter 498, Florida Statutes, and, if 80, what penalty should be imposed.
Findings Of Fact Cambridge Park is a mobile home park located in Brevard County, Florida. Respondent Cambridge Park, Inc. owns about 40 contiguous acres of platted and unplatted land, of which the mobile home park is a part. As relevant to this case, the park was originally owned by C.H.K.S., Inc., whose interest was subject to a mortgage in favor of Executive Center. The mortgage contained a release clause that reportedly released lots for payments of about $4000 per lot. In the process of developing the land for use as a mobile home park, on October 5, 1984, C.H.X.S., Inc. dedicated a plat map for the uses described in the map. On September 6, 1985, the Clerk recorded the plat after finding that it conformed with the requirements of Chapter 177, Florida Statutes. The plat of Cambridge Park, Phase I (as it later was known), which contains about nine acres, comprises 25 lots: Lots 1-4 and 5361, Block A, and Lots 1-4, 34-37, and 53-56, Block B. Before selling a significant number of lots, C.H.K.S., Inc. sold the 40-acre tract, including the Cambridge Park subdivision, to a Mr. Coomer. It appears that C.H.K.S., Inc. may have taken back a purchase money mortgage, which was sold to Chrysler Credit Corp. Mr. Coomer held the property for about a year, experienced some difficulty remaining current on the Chrysler Credit mortgage, and reconveyed the property to C.H.K.S., Inc. After it reacquired the property, C.H.K.S., Inc. needed cash to service and possibly reinstate the mortgage debt and develop the property so lots could be marketed. At some stage, another mortgage in favor of Southeast Bank may have been placed on the property, and it may have been in default too. C.H.K.S., Inc. made few if any sales while seeking new capital. At all times, Bonnie Kay remained the sole officer and director of C.H.K.S., Inc., although she probably did not control all of the stock of the company. About four years ago, Ms. Kay married Ralph Bates and is hereafter referred to as Mrs. Bates. Mrs. Bates, who lacked significant real estate experience prior to Cambridge Park, was assisted in real estate matters by her husband. Throughout these complicated transactions, however, Mr. Bates maintained a low profile, such as by taking no ownership or management positions due to pending divorce proceedings. Since the early 1980's, a mortgage brokerage firm known as Northeast Mortgage, Inc. had been operating in Brevard County. Northeast Mortgage originated and sold mortgages, although the company also owned interests in real estate and a; restaurant. The principal of Northeast Mortgage was George Newman. As a result of recommendations from various reputable sources in the community, Mr. and Mrs. Bates contacted Northeast Mortgage to see if it could help them with their capital needs. Neither of them had ever met anyone involved with Northeast Mortgage. At Northeast Mortgage, the Bateses met several times with Respondent Harrington, who was an employee of Northeast Mortgage. Respondent Harrington, who owned an office building with Mr. Newman, had been employed at Northeast Mortgage for three to five years. Respondent Harrington'a duties included the origination of mortgagee and sale of mortgages to private parties. In a short time, the Bateses, Respondent Harrington, and Mr. Newman, who had joined the negotiations, reached an agreement. In return for their assistance in obtaining financing and marketing the lots, Mr. Newman and Respondent Harrington would each receive one-quarter of the profits from the sale of the lot.. In return for their equity (if any) and development work, such as for constructing site improvements, the Bateses would receive one-half of the profits from the sale of the lot. Mr. Newman and Respondent Harrington were also to receive their normal commission; from originating and selling mortgages. Some of these mortgagee would be from C.H.R.S., Inc. and represent, in effect, partial refinancings of the project. Other mortgagee would be purchase money mortgagee given by purchasers of individual lots. The Bateses were 1ikewise to receive their normal payments for development work, which was to be performed by Clyde's Mobile Home Sales, Inc. Clyde's a corporation controlled by Mrs. Bates and possibly Mr. Bates. The agreement was never reduced to writing. By failing to memorialize the agreement, Mr. Newman intended to conceal his equity position from the purchasers of mortgages from Northeast Mortgage. By failing to disclose his interest in the Cambridge Park development, Mr. Newman made it easier to sell the mortgagee. Mr. Newman explained to the Bateses that Northeast Mortgage had to control the finances for the protection of those persona buying mortgagee from 0a company. In May, 1987, the parties executed the first stage of the transaction. On May 20, 1987, C.H.X.S., Inc. and Mrs. Bates individually executed five notes and mortgages in favor of Northeast Mortgage. On May 27, 1987, C. H. K. S., Inc. and Mrs. Bates individually executed a sixth note and mortgage in favor of Northeast Mortgage. The loans appear to have bean for between $16,000 and $43, 000 and were typically repayable by 11 equal monthly payments of a small amount followed by a single, lump-sum payment of the balance. In most if not all cases, Northeast Mortgage immediately sold the mortgages. The loan proceeds probably were used to bring current, satisfy, or obtain partial releases from the existing mortgagee, including those owned by Executive Center and Chrysler Credit, as well as to develop and market Cambridge Park. All of the May, 1987, mortgages given to Northeast Mortgage contained release clauses, According to borrower's closing statements for the six May, 1987, loans, the proceeds were used to pay commissions (of a little less than 101) and origination fees to Northeast Mortgage and typical closing coats to other parties. The closing costs included an item for "title search or policy" that was presumably payable to the closing agent, Atlantic Title & Escrow, Inc. The amounts paid to Atlantic Title for title searches or policies varied directly with the else of the loan, suggesting that mortgagee title insurance policies were contemplated rather than title opinions. For the sex loan closings in May, 1987, the remaining proceeds were divided between C.H.K.S., Inc. and Atlantic Title. The former, as owner of the property and mortgagor, received a total of $20,590.36. Atlantic Title, as closing agent, received a total of $130,768 for disbursement to mortgagees. The funds retained by Atlantic Title were to be paid to Executive Center on the first mortgage, Chrysler Credit on what apparently was a second mortgage, and any other mortgagee, such as Southeast Bank. These payments were necessary to give the May, 1987, mortgagees the priority that they expected to receive.1 According to Mr. Newman, the funds were so used. Although by this time most if not all of the lots in Phase I of Cambridge Park had been released from the mortgage, this payment may have obtained the release of portions of the 40-acre tract that had not been subdivided. In early fall, 1987, at Mr. Newman's suggestion, the Bateses incorporated Respondent Cambridge Park, Inc., which took title to the Cambridge Park property from C.H.K.S., Inc. by various deeds dating from late 1987 through mid 1988. Mr. Newman obtained the legal services of William Block in Titusville to incorporate the new company. Mr. Block, who also owned Atlantic Title, expired shortly after Northeast Mortgage discontinued doing business in the fall of 1988. On November 19 and December 22, 1987, according to borrowers' closing statements, C.H.K.S., Inc. and Respondent Cambridge Park, Inc., respectively, executed two more mortgages in favor of Northeast Mortgage, Inc. in the respective amounts of $25,000 and $55,000. Several lots used to collateralize these mortgages had been used to secure one or more May, 1987, mortgagee. For the November and December mortgages, Northeast Mortgage took no commission, although it did take a mortgage origination fee. This time, no funds were retained by Atlantic Title. C.H.X.S., Inc. received $24,092.25 from the first loan and Respondent Cambridge Park, Inc. received $53,298.40 from the second. Both closing statements reflected costs for "title search or policy." As was the case with the May, 1987, closings, these costs varied directly with the amount of the loan, suggesting the use of mortgagee policies rather than title opinions. As May, 1988, approached, and the balloon notes on the May, 1987, mortgages were about to mature, Mr. Newman and Respondent Harrington contacted the mortgagees and obtained their agreement to rollover the loans for another year on the same terms. Mortgage modification agreements were signed by the mortgagor--C.H.X.S., Inc. (although it no longer owned many of the lots)--but were never signed by the mortgagees, who reportedly agreed verbally to the extensions. On May 17, 1988, Mrs. Bates, as president of Respondent Cambridge Park, Inc., dedicated Phase II of the Cambridge Park. Covering about 15 acres immediately north and west of Phase I, Phase II comprises Lots 35-52, Block A, and Lots 27-33 and 38-52, Block B, for a total of 40 lots. Finding the plat in conformance with Chapter 177, Florida Statutes, the Clerk of the Court recorded the plat on July 15, 1988. Petitioner argues that the plat was defective due to the lack of "Joinders." The Clerk's certificate states that the plat conformed with Chapter 177, Florida Statutes. More importantly, the Opinion of Title does not establish by clear and convincing evidence any deficiencies in the plat or any lack of joinders. Sales of lots in Phase II began in earnest in the first half of 1988. By this time, the roles of the Bateses, Mr. Newman, and Respondent Harrington had evolved from their original arrangement. At all times, Mrs. Bates remained the sole officer, director, and shareholder of Cambridge Park, Inc., as reflected by the corporate records. However, pursuant to their initial agreement, and with Mrs. Bates' knowledge and consent, Mr. Newman and Respondent Harrington acted on behalf of Respondent Cambridge Park, Inc. in financing and marketing matters . In connection with the sale to Mrs. Holcomb, for instance, Respondent Harrington represented to her that he was the vice-president of Respondent Cambridge Park, Inc. He did this in the presence of Mrs. Bates, who did not correct him or object. Based on the evidence, it is clear that Mr. Newman and Respondent Harrington possessed actual and apparent authority to represent Respondent Cambridge Park, Inc. By some point during 1988, Respondent Harrington concentrated almost exclusively on Cambridge Park matters at Northeast Mortgage. Mrs. Bates agreed to allow Respondent Harrington to become a paid employee of Respondent Cambridge Park, Inc. He was to receive $500 weekly, although he withdrew double this amount. During 1988, Respondent Harrington assumed primary responsibility for Cambridge Park, as between him and Mr. Newman. The two men would meet a few times a week so Respondent Harrington could keep Mr. Newman informed of what was happening. There is no evidence that Mr. or Mrs. Bates was aware of what eventually took place, although there is considerable evidence of Mrs. Bates' bad judgment, as she allowed Mr. Newman and Respondent Harrington to handle all corporate matters with little involvement on her part. Prior to October, 1987, corporate checks for Respondent Cambridge Park, Inc. could be signed by any two of Mrs. Bates, Mr. Newman, and Respondent Harrington. Most checks were signed by the latter two because they did not often see Mrs. Bates . Respondent Harrington opened a new corporate account on or shortly after October 9, 1987. The corporate resolution of that date reflects that Respondent Harrington was the president and secretary, Mr. Newman was the vice-president, and an employee of Northeast Title was the secretary. The signature card executed on October 14, 1987, which shows that the account is an escrow account for Respondent Cambridge Park, Inc., authorizes any one of the three "officers" to sign cheeks. The card states that the corporate office was located at an office of Respondent Harrington. Respondent Harrington was the only person authorized to sign checks on a corporate escrow account, according to a signature card executed on December 1, 1987. Mr. Newman admitted that he and Respondent Harrington attempted to keep certain checks from Mrs. Bates, so she would not see who was being paid what. Mr. Newman also testified that Mrs. Bates had no knowledge of the above-described signature cards or corporate resolution. Petitioner produced at the hearing copies of recorded general warranty deeds from December, 1987, through September 30, 1988, corresponding to the 24 transactions cited in the Notices to Show Cause. Each warranty deed represents that the land was free of all encumbrances, such as mortgages. Each deed was promptly recorded following execution (except for one that went unrecorded for 17 day;). Each deed bears a corporate seal and is signed by Respondent Harrington as either president or vice-president of Respondent Cambridge Park, Inc. The notation on each recorded deed concerning documentary stamps shows taxes of between $75 and $110 for most conveyances. At the rate then in effect under Section 201.02(1), Florida Statutes (1987), ($0.55 per $100), the lots were sold for about $13,000 to $20,000 each. Most if not all lot purchasers executed purchase money mortgagee to Respondent Cambridge Park, Inc., which routinely assigned the mortgages to Northeast Mortgage. Northeast Mortgage would assign partial or whole interests in the mortgages to its customers, who included individuals and Fleet Mortgage. Although Fleet Mortgage was sometimes advised that a purchase money mortgage was not a first mortgage, the individual purchasers of mortgages were never so advised, according to Mr. Newman. Mr. Newman admitted that the purpose of this concealment was to induce the purchasers to buy the mortgages. He testified that Respondent Harrington was aware of the deception, but the Bateses were not. The proceeds from the sale of the mortgagee by Respondent Cambridge Park, Inc. would generally be used to pay senior mortgagee and operating expenses of the company. On occasion, Mr. Newman and Respondent Harrington would divert funds from Respondent Cambridge Park, Inc. to a recreational- vehicle development known as Willow Lakes, which Mr. Bates had owned. The Bateses, Mr. Newman, and Respondent Harrington had entered into a verbal arrangement under which the profits from Willow Lakes would be divided by allocating one-third to the Bateses received, one-third to Mr. Newman, and one-third to Respondent Harrington. However, funds received from the sale of mortgages secured by land at Willow Lakes sometimes were deposited in the account of Respondent Cambridge Park, Inc. Apparently toward the end of the arrangement, in an attempt to cover bad checks of Northeast Mortgage, Mr. Newman from time to time would cause Atlantic Title to issue checks payable to Mr. Bates. Mr. Newman would then deposit them in a Northeast Mortgage account without the Bateses' knowledge. Consistent with the representations contained on each warranty deed, Mr. Newman and Respondent Harrington assured each purchaser of a lot that he or she would receive fee simple title to 0a or her lot clear of all mortgages except any purchase money mortgage. Mr. Newman testified that the plan was, following the conveyance to the lot purchaser, to pay off or obtain releases from the other mortgagee, which by this time appear to have been reduced to the 1987 mortgagee from C.H.K.S. to Northeast Mortgage and assigned to third parties, although there is some evidence that the Executive Center mortgage may not have been fully satisfied. Mr. Nawman admitted that he often decided to use the proceeds from the sale of the purchase money mortgages for other purpose, s0 the underlying mortgages were not removed from the property following closing. He testified that Respondent Harrington was "not in all cases" kept informed of Mr. Newman's decisions of this type, and the Bateses ware never so informed. According to Mr. Nawman, he and Respondent Harrington asked Mr. Block at Atlantic Title to prepare the closing documents without any indication of the underlying 1987 mortgages to Northeast Mortgage. Mr. Newman and Respondent Harrington assured Mr. Block that they would clear up the mortgages following closing, but Mr. Block never checked back with them to see if they had. Unknown to Respondent Harrington, Mr. Newman had verbally agreed with Mr. Block that Mr. Newman would share in a percentage of the profits of Atlantic Title. Atlantic Title rarely issued the title commitments or policies called for in the closing documents. Complaints from persons purchasing mortgages from Northeast Mortgage culminated in the appointment of a receiver for the company by the Florida Comptroller in October, 1988. Respondent Cambridge Park, Inc. continued to sell lots for awhile, but eventually complaints from lot purchasers resulted in the commencement of the subject proceeding. Petitioner produced a recorded warranty deed dated June 30, 1988, showing that Curtis Scott Singleton purchased property described by metes and bounds and also known as Lot 50, Block A, pursuant to an unrecorded plat. The Opinion of Title, which fails to find the deed into Mr. Singleton, notes an assignment of mortgage from Northeast Mortgage to a third party, but omits any mention of the origination of the mortgage. Without such information, it is impossible to find, by clear and convincing evidence, that the mortgage assignment evidences an enforceable lien against the property. The Opinion of Title also notes the "possibility of a mortgage encumbrance, n possibly referring to the Executive Center mortgage and a deficiency in the joinder process. This information does not constitute clear and convincing evidence of an outstanding mortgage or a deficiency in the joinder process. Petitioner produced a recorded warranty deed dated June 17, 1988, to Rudolph T. and Patricia B. Heward for property described by metes and bounds and also known as Lot 43, Block B, pursuant to an unrecorded plat. The Opinion of Title notes a quitclaim deed from Respondent Cambridge Park, Inc. Dated August 30, 1988, but omits mention of the warranty deed. The Opinion of Title states that, at the time of the quitclaim deed, a third party held a mortgage for which no record exists of the mortgage's origination. The Opinion of Title also notes the "possibility" of a mortgage similar to that described in the preceding paragraph. On December 28, 1990, a foreclosure judgment was entered against the Hewards in favor of the third party holding the mortgage for which no record exists of its origination. Absent evidence as to whether the Hewards defended the foreclosure action, the evidence is not clear and convincing that the warranty deed to the Hewards was incorrect in the omitting a recorded mortgage (rather than merely an assignment) and absent a clearer indication in the report that another mortgage actually encumbers the property. Petitioner produced a recorded warranty deed dated June 1, 1988, to James C. Sawyer and Lottie A. Sawyer for Lot 34, Blook B. The only potential problem disclosed in the Opinion of Title is the "possibility of a mortgage encumbrance," which has been discussed above. Petitioner produced a recorded warranty deed dated May 12, 1988, to Cheryl L. Pagell Barding, Kevin Watera, and Robert J. Pagell for Lot 56, Block A. Although two mortgagee existed at the time of the conveyance, they were later satisfied. Respondent Cambridge Park, Inc. assigned the purchase money mortgage to "two different parties," but the Opinion of Title does not indicate whether partia1 interests were assigned. In any event, even two assignments of entire interests in the purchase money mortgage would not damage the lot purchasers, who would continue to be liable for only a single mortgage note. Petitioner produced a recorded warranty deed dated June 1, 1988, to John A. Napoli and Rachel Weiner for property described by metes and bounds and also known as Lot 42, Block A, pursuant to an unrecorded plat. The Opinion of Title notes only a quitclaim deed from Respondent Cambridge Park, Inc. Dated August 30, 1988, and a "possibility of a mortgage," as discussed previously. Petitioner produced a recorded warranty deed dated June 1, 1988, to Darl W. Morton and Janet M. Morton for property described by metes and bounds and also known as Lot 41, Block A, pursuant to an unrecorded plat. The Opinion of Title notes a quitclaim deed from Respondent Cambridge Park, Inc. Dated August 30, 1988, a "possibility of a mortgage," and a foreclosure action commenced on a mortgage for which there is no record evidence of its origination. Petitioner produced a recorded warranty deed dated May 23, 1988, to Butord W. Brooka and Carol A. Brooks for property described by metes and bounds and also known as Lot 52, Block A, pursuant to an unrecorded plat. However, the Opinion of Title, which notes a "possibility of a mortgage, did not find the deed. Petitioner produced a recorded warranty deed dated June 24, 1988, to Peggy SUQ Speeker for Lot 61, Block A. The Opinion of Title clearly establishes a problem in this transaction because two undisclosed mortgages existed at the time of the conveyance. One mortgage for $16,000 was to Robert and Barbara Clark and one mortgage for $27,000 was to Edwin and Anna F. Scott. Both mortgagee remain outstanding. Petitioner produced a recorded warranty deed dated June 15, 1988, to John F. Oxendine for Lot 58, Block A. Although two mortgagee existed at the time of the conveyance, they were both released. Petitioner produced a recorded warranty deed dated June 27, 1988, to Robert K. and Susan L. Mast for property described by metes and bounds and also known as Lot 51, Block A, pursuant to an unrecorded plat. The opinion of Title fails to report the warranty deed, but notes an August 30, 1988, quitclaim deed from Respondent Cambridge Park, Inc. and a "possibility of a mortgage." Petitioner produced a recorded warranty deed dated July 27, 1988, to James A. Lichlyter and Deborah D. Johnson for Lot 47, Block A. The Opinion of Title notes a "possibility of a mortgage," which is presently in foreclosure. Petitioner produced a recorded warranty deed dated July 1, 1988, to Willlam Thomea and Julia C. Loeffler for Lot 57, Block A. The opinion of Title notes that two mortgages encumbered the property at the time of the conveyance, but were both satisfied. Although the Opinion of Title states that the satisfactions took place "much later," there is no indication of when, relative to the closing, the satisfactions were obtained or recorded. The opinion of-Title fails to show by clear and convincing evidence that the satisfaction of these mortgages did not conform to the prevailing custom in real estate closings in which satisfactions and releases are not obtained and recorded until after closing. Petitioner produced a recorded warranty deed dated July 6, 1988, to James A. and Dorothy A. Scanzillo for Lot 59, Block A. The opinion of Title notes that two mortgagee encumbered the property at the time of the conveyance, but were both satisfied. Although the Opinion of Title states that the satisfactions took place "much later," there is no indication of when, relative to the closing, the satisfactions were obtained or recorded. Petitioner produced a recorded warranty deed dated July 1, 1988, to Steven J. and Laura A. Allen for property described by metes and bounds and also known as Lot 38, Block A, pursuant to an unrecorded plat. The Opinion of Title reports a corrective quitclaim deed dated August 30, 1988, and a "possibility of a mortgage." The Opinion of Title also notes that Respondent Cambridge Park, Inc. gave Northeast Mortgage a $12,000 mortgage on August 9, 1988, and this mortgage remains outstanding. There is no information as to when the mortgage was recorded. It is likely that Respondent Cambridge Park, Inc. did not have record title on July 1, 1988, so a corrective deed was necessary. Absent evidence of when Respondent Cambridge Park, Inc. obtained title, however, it is impossible to find by clear and convincing evidence that the August 9 mortgage is enforceable. Petitioner produced a recorded warranty deed dated August 15, 1988, to Daniel A. and Barbara White for Lot 30, Block B. The Opinion of Title clearly discloses a problem in this transaction. Aside from a "possibility of a mortgage," the Opinion of Title reports that, at the time of the conveyance to the Whites, the property was encumbered by a mortgage in the amount of $7000 in favor of B. Wright, and the mortgage remains outstanding. Petitioner produced a recorded warranty deed dated June 1, 1988, to H. Roger and Darlene R. Parsons for Lot 54, Block B. The Opinion of Title notes that the grantor, Respondent Cambridge Park, Inc., did not have title at the time of the conveyance. On June 14, 1988, C.H.K.S., Inc. conveyed title to Respondent Cambridge Park, Inc. by quitclaim deed. A mortgage encumbering the property at the time of the conveyance by warranty deed was later satisfied. Petitioner produced a recorded warranty deed dated July 27, 1988, to Leon R. and Virginia D. Cronk for Lot 51, Block B. Aside from noting the possibility of a mortgage," the Opinion of Title reports that the Cronks defaulted on their purchase money mortgage and lost the land in the ensuing foreclosure action. Petitioner produced a recorded warranty deed dated February 24, 1988, to Charles A. and Hilda N. Hobday for property described by metes and bounds and also known as Lot 42, Block B, pursuant to an unrecorded plat. The Opinion of Title fails to find the deed into the Hobdays, but reports the "possibility of a mortgage." Petitioner produced a recorded warranty deed dated February 24, 1988, to Duayne Charlea Paguette for property described by metes and bounds and also known as Lot 41, Block B, pursuant to an unrecorded plat. The Opinion of Title fails to find the deed into Mr. Paquette, but reports the "possibility of a mortgage." The Opinion of Title notes an outstanding mortgage, but does not indicate the origination of the mortgage. Petitioner produced a recorded warranty deed dated September 30, 1988, to Joseph Wayne and Catherine Marie Holcomb for Lot 44, Block A. The Opinion of Title reports the "possibility of a mortgage," for which a foreclosure action is pending. Petitioner produced a recorded warranty deed dated December 18, 1987, to Rick Eugene and Sherry Rae Greene for Lot 54, Block A. The grantor, Respondent Cambridge Park, Inc., did not have title to the property at the time of the conveyance, but acquired title from C.H.X.S., Inc. by quitclaim deed dated January 8, 1988. Respondent Cambridge Park, Inc. then gave the Greenes a corrective warranty deed. The Opinion of Title clearly discloses a problem in this transaction. Two mortgages existed at the time of both warranty deeds. One was in the amount of $16,000 to Robert H. Clark and his wife. The other was in the amount of $27,000 to B. Wright. The Clark mortgage was later satisfied, but the Wright mortgage was not and is in foreclosure. Petitioner produced a recorded warranty deed dated September 9, 1988, to George W. and Peggy A. Bauer for Lot 44, Block B. The Opinion of Title discusses several matters involving this transaction. The only matter approaching clear and convincing evidence of a title problem arises when, on August 9, 1988, Respondent Cambridge Park, Inc. gave a mortgage to Northeast Mortgage, which assigned it on August 15. However, the Opinion of Title does not report, as it does in other cases, that the August 9 mortgage remains outstanding. Other matters are mentioned as possibilities or, in the case of two mortgages, fail to include record evidence of the origination of mortgages. Petitioner produced a recorded warranty deed dated August 12, 1988, to William D. Newman for Lot 40, Block A. The Opinion of Title reports only a "possible" competing interest in the property. Petitioner produced a warranty deed dated June 20, 1988, to Charles LaMattina for property described by metes and bounds and also known as Lot 48, Block A, pursuant to an unrecorded plat. The Opinion of Title fails to find the warranty deed, but reports a quitclaim deed from Respondent Cambridge Park, Inc. dated August 30, 1988. Otherwise, the Opinion of Title reports a "possibility of a mortgage" and the assignment of a mortgage for which no record of origination was found. In sum, the Opinion of Title establishes by clear and convincing evidence title problems in three transactions: Lot 61, Block A (two outstanding undisclosed mortgages); Lot 30, Block B (one outstanding undisclosed mortgage); and Lot 54, Block A (one outstanding undisclosed mortgage). There is no problem with the title status of 10t 54, Block B for reasons discussed in the Conclusions of Law. In addition to Lot 54, Block B, the opinion of Title establishes that Lot 56, Block A; Lot 57, Block At Lot 58, Block A; and Lot 59, Block A suffer no title defects. The status of title for the remaining 16 lots is unclear. The record establishes that the following 10 "lots" were not sold as subdivided lots, but rather were sold by metes and bounds: Lot 38, Block A; Lot 41, Block A; Lot 42, Block A; Lot 48, Block A; Lot 50, Block A; Lot 51, Block A; Lot 52, Block A; Lot 41, Block B; Lot 42, Block B; and Lot 43, Block B. 0f these parcels, only Lot 41, Block B was sold prior to the dedication of the plat for Phase II on May 17, 1988. At no time did either Respondent possess a valid order of registration from Petitioner or establish a valid reservation program, nor did anyone ever provide lot purchasers with any public offering statement.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Division of Florida Land Sales, Condominiums and Mobile Homes enter A final order finding each Respondent guilty of 20 violations of Section 498.023(1), 20 violations of 498.023(2), and two violations 498.051(1)(b); ordering each Respondent to cease and desist from future violations of Chapter 498; ordering Respondent Harrington to pay a fine of $20,000, subject to reduction as provided below; ordering Respondent Cambridge Park, Inc. to pay a fine of $20,000, subject to reduction as provided belongs ordering Respondent Cambridge Park, Inc. to provide the purchasers of the 20 lots for which a public offering statement should have been provided with written notice giving them seven days from receipt to exercise their right to rescind their purchases; and ordering both Respondents to establish an escrow account to assure the payment of refunds to those 20 lot owners timely electing to rescind and the payment of such sums necessary to provide the nonelecting lot owners from among those 20 owners with clear and marketable title to their lots. Each Respondent will receive a 100% credit against his or its S20,000 fine for all moneys actually deposited into the escrow account or actually and reasonably expended in clearing the title. ENTERED this 2nd day of October, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalaches Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991.
The Issue Is Respondent, Victoria D. Wiedle, guilty of failure to account for and deliver funds, in violation of Section 475.25(1)(d)1, Florida Statutes, and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. At all times material hereto, Respondent Wiedle was a licensed real estate broker, having been issued license number BK-0646846, and was principal broker of Escarosa Realty. Respondent's license is still active. Janice Marlene Christian is a realtor associate. She was an independent contractor with Escarosa Realty from December 1998 until April 1999. Accordingly, Respondent Wiedle was Ms. Christian's registered broker during this time. Ms. Beverly Lewis is the mother-in-law of Ms. Christian's brother. Ms. Lewis came to Ms. Christian in February 1999 because she was interested in looking for and purchasing a house. On February 16, 1999, Ms. Christian facilitated an Exclusive Buyer Brokerage Agreement (the Agreement) on behalf of Escarosa Realty with Ms. Lewis. The Agreement was on a form created by Formulator, a software company. "Florida Association of Realtors" appears on the face of the document. Paragraph 6 of the Agreement reads in pertinent part: RETAINER: Upon final execution of this agreement, Buyer will pay to Broker a non- refundable retainer fee of $0 for Broker's services ("Retainer"). Accordingly, Respondent was not entitled to any money as a retainer fee for broker services pursuant to this agreement. The agreement was signed by Ms. Lewis, Ms. Christian, and Ms. Wiedle and became effective on February 16, 1999. The specified termination date of the agreement was August 17, 1999. On or about February 27, 1999, Ms. Christian tendered an offer to sellers on behalf of Ms. Lewis, for property located at 107 Poi Avenue in Santa Rosa County (subject property). Pursuant to this offer, Ms. Lewis gave a $500.00 check dated February 27, 1999, to Ms. Christian as earnest money. The check is made out as follows: "Escarosa Realty Inc. Escrow". Ms. Lewis wrote in the memo section of the check that the check was escrow money for 107 Poi Terrace. The $500.00 check was deposited in Escarosa Realty's escrow account on March 1, 1999. Respondent accounted for the $500.00 check on the March 1999 monthly reconciliation statement for Escarosa Realty. The seller of the subject property made a counter- offer for a higher price which Ms. Lewis rejected. The testimony differs as to what happened next. According to Ms. Christian, Ms. Christian spoke to Respondent sometime after Ms. Lewis rejected the counter-offer about refunding the escrow money to Ms. Lewis. According to Ms. Christian, Respondent informed her that she did not have to give the escrow money back to Ms. Lewis yet because she had the buyer broker agreement. Ms. Christian further asserts that she filled out a written request on March 16, 1999, on a form entitled "EMD Request," which means earnest money deposit request, and gave it to Respondent who again asserted that the $500.00 did not need to be returned at that time because of the buyer brokerage agreement. Ms. Christian's testimony is consistent with Ms. Lewis's. According to Ms. Lewis, she talked to Ms. Christian about getting a refund of the $500.00 shortly after she rejected the counter-offer. She and Ms. Christian discussed the EMD form. She initially agreed that Respondent could temporarily maintain the escrow funds. However, when Ms. Lewis discovered that the financing she was seeking through the rural development program would take several months, she decided she wanted the money returned. Ms. Christian ended her contract with Escarosa Realty effective April 14, 1999. Because Ms. Christian was no longer at Escarosa, Ms. Lewis contacted Respondent by telephone on or about April 21, 1999. Ms. Lewis informed Respondent about the purchase offer and rejection of the counter-offer for the subject property. According to Ms. Lewis, Respondent initially told her she would return the money to her in the mail. When she did not receive it, Ms. Lewis again called Respondent and was told that the $500.00 would not be returned because of the buyer brokerage agreement was still in place. Ms. Lewis asserts that Respondent never told her any request for a refund of the $500.00 had to be in writing. Ms. Lewis then went to the Escarosa Realty office. Ms. Weidle was not there but Elnora Alexander was there. Ms. Alexander was also a realtor associate who was an independent contractor with Escarosa Realty. Ms. Lewis explained to Ms. Alexander about the circumstances of the subject property and that she wanted her earnest money back. Ms. Alexander gave a copy of the buyer broker agreement to Ms. Lewis. After going to Escarosa Realty, Ms. Lewis had numerous other telephone conversations with Respondent about the money. Respondent denies any knowledge of the Poi Terrace failed transaction until she spoke to Ms. Lewis on the phone. She also denied ever receiving the EMD request from Ms. Christian. Respondent asserts that she repeatedly told Ms. Lewis that she would return the $500.00 if Ms. Lewis would only make a request in writing, but that Ms. Lewis refused. This assertion is not credible. It is inconceivable that after all of the efforts made by Ms. Lewis to get her $500.00 returned to her, that she would refuse to make a written request for the money. In any event, there is no dispute that Ms. Lewis made verbal requests to Respondent for the return of the escrow monies. Respondent Wiedle admits that Ms. Lewis requested the money over the telephone. Further, in an April 2, 2001 letter from Respondent to the Division of Real Estate, Respondent acknowledged that Ms. Lewis asked for a refund of the money in the beginning of May and again in early June of 1999. Clearly, if Respondent Wiedle had not previously been aware of the failed Poi Terrace transaction, she was made aware of it during the telephone conversations with Ms. Lewis. Notwithstanding Respondent's assertion that the reason she did not refund the $500.00 to Ms. Lewis was that the request was not in writing, it is clear from Respondent's testimony and from a letter she wrote to Mr. Clanton, Petitioner's investigator, that she believed the $500.00 was connected to the buyer brokerage agreement, not to any offer for purchase of property. In an undated letter from Respondent Wiedle to Mr. Clanton, Respondent wrote: Dear Mr. Clanton, This is in response to your letter dated August 17th, 1999. First Beverly A. Lewis was refunded her money on August 20, 1999 check #111. Second I would like to respond to her complaint. Beverly A. Lewis signed a Exclusive Buyer Brokerage Agreement with EscaRosa Realty, Inc. on February 16th, 1999 with it to terminate on August 17th 1999. Beverly A. Lewis knew that her deposit was a refundable deposit after the agreement is expired not before. As the Broker of this company I had no contact with Beverly Lewis until the agent Marlene Christian was asked to leave the company. If there ever was a contract for her to purchase a house then her agent Marlene Christian never informed me of nor did she ever provide any such contract. The deposit was given to me with the Exclusive Buyer Brokerage Agreement only. Nor did her agent Marlene ever fill out the EMD refund request form requesting a refund to be given to Beverly A. Lewis. However, The result would have been the same. I asked Beverly Lewis If she had changed her mind on purchasing a house she said no she was still going to buy a house but that she knew if she didn't buy her house through Marlene at her new company that Marlene would make life very hard on her. I told her I was sorry but that is the whole purpose in the contract was to secure your buyers from just going all over the place. . . .(emphasis supplied) Respondent refunded the $500.00 to Ms. Lewis on August 10, 1999. At hearing, Respondent volunteered that there was a previous complaint against her for failing to return money she held under a buyer brokerage agreement with a former client. In that instance, the Probable Cause Panel of the Florida Real Estate Commission found no probable cause but issued a letter of guidance to Respondent.1
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, the evidence of record and the demeanor of the witnesses, it is RECOMMENDED: That a final order be entered by the Florida Real Estate Commission finding the Respondent, Victoria D. Wiedle, guilty of violating Section 475.25(1)(d), Florida Statutes, in that she failed to deliver escrow money upon demand, imposing a fine of $1,000.00, and placing Respondent Wiedle on probation for a period of two years. As conditions of probation, Respondent should be required to attend a continuing education course which addresses appropriate handling of escrow funds and be subject to periodic inspections and interviews by a Department of Business and Professional Regulation investigator. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2002.
The Issue The issue in this case is whether Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed in the State of Florida as a real estate broker-salesman, holding license number 0476966. On May 21, 1990, while employed as a broker-salesman by Active One Realty, Inc., Respondent obtained a contract from Steven Mead to purchase a parcel owned by Dr. Samuel Martin. The contract, which was signed by Mr. Mead on May 21, recites that Active One Realty is holding the earnest money deposit. Dr. Martin signed the contract on May 26, 1990, which was four days prior to the expiration of the time for acceptance. Pursuant to the contract, closing was set for no later than June 2, 1990. A day or two prior to the closing, the buyer decided not to purchase the parcel. When the deadline for closing passed without further communication from the buyer or Respondent, Dr. Martin's listing broker, Robert Martin (no relation) contacted Susan Cobb, who is in charge of Active One Realty, Inc. In response to Mr. Martin's request for information about the closing, Ms. Cobb told him that her office had no record of the contract and was holding no earnest money deposit in connection with the transaction. In fact, Respondent failed to obtain the earnest money deposit from Mr. Mead prior to presenting the contract to Mr. Martin for consideration by the owner. Intending to obtain the deposit later in the day on May 21, Respondent first presented the contract to save time," according to his own testimony. Respondent did not offer to explain why, after not obtaining the deposit later in the day, he failed to inform his employing broker, Mr. Martin, or Dr. Martin of the misrepresentation contained in the contract concerning the earnest money deposit. Respondent has not previously been disciplined. About six months after the events described above, Respondent, in his capacity as a broker-salesman, procured the sale of the subject parcel.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Section 475.25(1)(b), imposing an administrative fine of $500, and placing his license on probation for one year, during which time he shall complete successfully such additional training in ethical and other matters pertaining to his profession as the Commission shall require; provided, however, that if he fails to complete successfully the additional training that the Commission orders with the one-year period, his license shall be suspended for a period of two years, commencing with the end of the probationary period. ENTERED this 19 day of June, 1991, in Tallahassee Florida. ROBERT E. MEALE 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 19 day of June, 1991. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Steven W. Johnson, Senior Attorney Department of Professional Regulation P.O. Box 1900 Orlando, FL 32801-1722 Anthony Jesus Torres 1074 Chesterfield Circle Winter Springs, FL 32708
