Findings Of Fact The Department is the agency charged with the responsibility to prosecute violations of Chapter 475, Florida Statutes, allegedly committed by real estate brokers who are licensed in Florida. At all times material to these proceedings, Respondent Anglickis was a licensed real estate broker, having been issued licensed number 00001869 through the Division of Real Estate. Respondent American was a corporation registered as a real estate broker, having been issued license number 0169478. Both licenses were issued to the following address: 102 East Leeland Heights Boulevard, Lehigh Acres, Florida 33936. Respondent Anglickis was the qualifying broker for Respondent American, and held the office of president within the corporation. On April 19, 1989, the Respondents' accounting records were reviewed in a random, routine audit conducted by an investigator with the Division of Real Estate as part of the agency's regulatory functions. During the audit, the investigator determined that Sun Bank Account No. 013684, which was maintained by the Respondents in order to hold funds entrusted to them in pending real estate transactions, contained an overage of $9,639.83. According to the real estate company's records that were presented to the investigator, these funds were not being held for the benefit of any parties to any pending real estate transactions. At hearing, the Respondents' presented evidence to show that the funds in question in this particular trust account had been deposited as part of a number of pending real estate transactions involving installment lot sales from May 1986 through December 1986. During this time period, Respondent Anglickis was handling the bookkeeping matters within the company. He undertook this responsibility until he was able to find a replacement for the previous bookkeeper, who left on short notice. All the disbursements of funds were made on behalf of the buyers and sellers in the installment lot sales transactions except for the commissions belonging to the Respondent American. These funds were left in the trust account by Respondent Anglickis. When the new bookkeeper was hired, she reconciled the accounts every month from the time she came to the real estate company. The $9,639.83 was carried forward every month, and was never discussed again once the bookkeeper learned the money belonged to Respondent American early in her employment. This resulted in the isolation of these funds in the pending sales escrow account even though the sales had been completed and the files were considered as closed files within the office. By the time the evidence was presented at the administrative hearing, the Respondents had gone through the closed accounts involved in the installment lot sales during the period in question during 1986. The overage was shown to be the amount due to Respondent American for commission from these sales. These funds were then removed from the pending sales escrow account. Interest Bearing Sales Escrow Account In addition to the sales escrow/trust account at Sun Bank, the Respondents maintained an interest bearing account for the same purpose at the First Federal Savings and Loan Association of Fort Myers, Account No. 101222355. Unless a real estate client specifically allowed the Respondents to place the funds involved in a pending sale into an interest bearing account, they were required to place the funds in a non-interest bearing escrow account. In order for the Respondents to receive the interest on the money, full disclosure in writing had to be presented to the client, and written consent had to be obtained and documented. During the review of the Respondents' files and records relating to funds within the interest bearing sales account during the audit, the investigator was unable to locate the necessary disclosure forms for three clients whose funds were placed in the interest bearing account. When the investigator informed Respondent Anglickis of the real estate company's failure to comply with the disclosure requirements on the three pending contracts, the Respondent Anglickis indulged in a verbal tirade. It appeared from the evidence that this tantrum was unsuccessfully staged in order to either dominate or intimidate the young female investigator. During his harangue, the Respondent Anglickis said he would have his friend Harry Powell sign and backdate the required disclosure that was missing from Mr. Powell's file. The Respondent planned to then conveniently "find" the document misfiled in another file. Once he proposed this course of misconduct, the Respondent taunted the investigator concerning her inability to do anything about it if he chose to solve the problem in this manner. On her return visit to the offices on May 3, 1989, the investigator was presented with a copy of the required disclosure form for Harry Powell. The Respondent Anglickis informed the investigator that the agreement had been misfiled and was located in another file belonging to Mr. Powell. Mr. Harry Powell signed the disclosure statement during the actual sales transaction, as set forth on the form. In spite of his ongoing business relationship with Respondent Anglickis, he never backdated this disclosure, nor was he asked to do so by anyone at anytime. Charles Tucker, the real estate salesman with Respondent American who handled Mr. Powell's real estate purchase, had the client sign the disclosure statement during the sales transaction. This is a required sales procedure within the company. The bookkeeper located the disclosure in another closed file belonging to Mr. Powell within the real estate company. Mr. Powell purchased distressed properties within Lehigh Acres on a routine basis and had a number of closed files within the office. One of the other disclosure forms for a different client was sent to the title insurance company along with other documents. It was returned to Respondent American after the audit and was placed in the proper location. This form had been timely signed by the clients and allowed the Respondents to place the funds in the interest bearing account. The third and final missing disclosure form was in the possession of the real estate salesman who had it signed by the client before the escrow funds were placed in the interest bearing account. While the sales personnel are required to maintain a duplicate file, the office file in this case had not yet received the disclosure form from the salesman when the audit occurred. The Respondent Anglickis did not participate in any misconduct in order to advance the scheme he had proposed to the investigator during his tantrum. The Department's decision to prosecute the Respondents in this proceeding was proper due to the way in which the Respondent Anglickis' proposed scheme to circumvent the findings of the audit coincided with the later presentation of the missing disclosure statements.
Recommendation Based upon the foregoing, it is recommended that Respondent Anglickis and Respondent American be found not guilty of Counts I-VII as set forth in the Administrative Complaint, and that the charges be dismissed. RECOMMENDED this 26th day of June, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 26th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5414 Petitioner's Proposed Findings of Fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #2. Accepted. See HO #2. Accepted. See HO #3. Accept that during the audit, the records pur- portedly revealed an overage in the escrow account. See HO #4. The bookkeeper's statements are rejected as uncorroborated hearsay. Accepted. See HO #8 - #10. Accepted. See HO #11 and #12. Accepted. See HO #13. However, the investigator is not the ultimate trier of fact and did not have all of the evidence presented to the Hearing Officer which refuted that the proposed misconduct by Respondent Anglickis had occurred. See HO #19. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See HO #15 - #18. Accepted. See HO #4 - #7. COPIES FURNISHED: Steven W. Johnson, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Robert P. Henderson, Esquire 1619 Jackson Street Post Office Box 1906 Fort Myers, Florida 33902 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller, Executive Director DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 =================================================================
The Issue Whether Michael Jacob Piwko (Respondent), committed the violations alleged in the Administrative Complaint dated December 15, 2009, and, if so, what penalties should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida created by Section 20.165, Florida Statutes. Petitioner is charged with the responsibility of regulating the real estate industry in Florida pursuant to Chapters 455 and 475, Florida Statutes. As such, Petitioner is fully authorized to prosecute disciplinary cases against real estate licensees. Respondent was at the times material to this matter, the holder of a Florida real estate associate license, license number 707518, issued by Petitioner. As last known, Respondent was an active sales associate with All Star Investment Realty, Inc., 9425 Sunset Drive #180, Miami, Florida 33173. From January 2008 through May 2008, Respondent was employed as a sales associate with Enrique Piwko, the qualifying broker for All Star Investment Realty, Inc. In January of 2008, Joaquin Inigo, a buyer, sought to purchase a condominium in Tampa, Florida. He gave Respondent a deposit for the purchase, but was later advised the deal had “fallen through.” On or about May 17, 2008, Mr. Inigo executed a contract for purchase and sale seeking to acquire a second condominium, unit number 208, at 310 Crestwood Circle, Royal Palm Beach, Florida 33411. As part of the transactions with Respondent, Mr. Inigo tendered approximately $77,000.00 to Respondent to be applied to the purchase price of unit 208. Monies were tendered to Respondent directly because Mr. Inigo expected Respondent to get an employee discount related to the sale and pass that on to him. The closing date in July passed without unit 208 being conveyed to Mr. Inigo. Efforts to achieve a refund of the deposit monies were fruitless. Upon investigation of the matter, Petitioner discovered that Respondent never deposited Mr. Inigo’s funds in escrow with his broker. Petitioner did not negotiate the purchase of unit 208. Petitioner did not refund the deposit monies. All monies provided by Mr. Inigo to Respondent were for the purchase of unit 208 and were not a personal loan to Respondent. Respondent asserted in pleadings that the monies from Mr. Inigo were a personal loan. Respondent did not, however, present written evidence of the alleged loan or its terms and declined to respond to the investigatory efforts made by Petitioner. Petitioner did not present evidence regarding the cost of investigating this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Respondent in violation of the provisions of law set forth in the Administrative Complaint as alleged by Petitioner, imposing an administrative fine in the amount of $2,000.00, and imposing a suspension of Respondent’s real estate license for a period of five years. DONE AND ENTERED this 18th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2010. COPIES FURNISHED: Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Heather A. Rutecki, Esquire Rutecki & Associates, P.A. Bank of America Tower 100 Southeast Second Street, Suite 4600 Miami, Florida 33131 Roger P. Enzor, Chair Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, N801 Orlando, Florida 32801 Thomas W. O’Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, N801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to these proceedings, Kalunian was registered as a real estate broker with FREC holding Certificate Number 0045958. Kalunian's registration with FREC was suspended by FREC in an emergency suspension order dated September 21, 1978. On or about July 18, 1978, Harry and Joan Soden, as buyers, entered into a contract with Warren and Barbara Grund, as sellers, for the sale and purchase of real property. In connection with that sale, the buyers entrusted the sum of $2,000.00 with Kalunian as an escrow money deposit. The closing for this transaction was scheduled for October 1, 1978, and at no time prior to the scheduled closing did the parties to the transaction authorize the disbursement of the escrow money deposit. On or about June 23, 1978, John and Wanda Carlantonio, as buyers, entered into a contract with Ralph and Margarie Steigerwald, as sellers, for the sale and purchase of real property. In connection with that contract, the buyers entrusted the sum of $7,000.00 with Kalunian as an escrow money deposit. The closing for this transaction took place on September 15, 1978. However, at the time of the closing, the $7,000.00 escrow money deposit was not accounted for. At no time prior to the closing did the parties to the transaction authorize a disbursement of the escrow money deposit. On or about July 8, 1978, Diane Maholland, as buyer, entered into a contract with Rita Auletta, as seller, for the sale and purchase of real property. In connection with that contract the buyer entrusted the sum of $9,500.00 with Kalunian as an escrow money deposit. The closing of the transaction took place on September 6, 1978. However, at the time of the closing, the $9,500.00 escrow money deposit was not accounted for. At no time prior to the closing did the oarties to the transaction authorize a disbursement of the escrow money deposit. On July 31, 1978, the balance in Kalunian's escrow account was $501.13. On August 6, 1978, a letter from Kalunian was discovered in Kalunian's office. In that letter, Kalunian admitted that he had converted funds from his trust account for his own use.
The Issue The issue in this case is whether the allegations of the Administrative Complaints are correct and, if so, what penalty should be imposed.
Findings Of Fact Respondent James G. Adair is and at all material times has been licensed as a real estate broker, Florida license number 0409004, t/a Investor's Equity, 415 Beckwith Road, Suite 210, Panama City, Florida 23407 In November, 1988, Respondent negotiated a contract for the sale of real property identified as the Stopway Grocery. Said contract identified the purchasers of the property as Pakesh Jethani and Suresh S. Satiana. The Stopway Grocery property was owned by James A. White and located in Panama City, Florida. Respondent obtained an earnest money deposit in the amount of $5,000, allegedly from the purchasers, which was deposited into the Investor's Equity escrow account. Subsequently to the execution of the original contract, addenda to the contract were negotiated and agreed between the parties. The sale was to scheduled to close in December, 1988. During the period of time between the contract execution and the scheduled date upon which the sale was to close, the seller repeatedly contacted the Respondent to assure himself that the sale and closing were proceeding appropriately. At no time did Respondent inform the seller of any problems with the transaction or suggest that the sale would not close in December, 1988. The transaction did not close on the scheduled date. Neither the Respondent nor the purchasers attended the scheduled closing. Subsequent to the closing date, the seller contacted the buyers identified in the contract, at which time the seller learned that the buyers would not complete the transaction. The seller obtained legal representation. A demand for the escrow deposit was made on behalf of the seller. By letter dated May 1, 1989, Respondent informed the Petitioner that a dispute related to the escrow deposit had arisen between the parties to the transaction. By letter dated May 15, 1989, Petitioner advised Respondent of alternative methods by which the dispute could be resolved, and requested that Respondent notify Petitioner of the method chosen. After receiving no response, Petitioner, by letter dated July 14, 1989, again requested that Respondent notify Petitioner of the dispute resolution method chosen. As of July 1, 1991, Petitioner has received no further information from Respondent. Subsequent to the July 14, 1989 letter, an investigator for the Petitioner went to the Investor's Equity office in order to review the escrow account documentation. 1/ He was unable to do so because the books and records were not at the office but rather were allegedly in the Respondent's possession. The investigator attempted to contact both the Respondent and the alleged buyers in order to ascertain the disposition of the escrow deposit, but was unable to locate any of them. The Respondent's partner in the Investor's Equity operation, Robert Hodges handled mortgage brokerage activities for the business. The Respondent performed the real estate brokerage activities. Hodges testified that the referenced escrow deposit was received, but stated that the Respondent had stopped coming to the office during this time and was absent from the premises for more than one year. Hodges eventually closed the Investor's Equity operation. He stated that the relevant deposited funds were not in the escrow account, but was unable to otherwise identify the disposition of the deposit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order revoking the real estate broker licensure of James G. Adair. DONE and ENTERED this 1st day of August, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 1st day of August, 1991.
The Issue Whether the Respondent is guilty of fraud in violation of Section 475.25(1)(b), Florida Statutes. Whether the Respondent is guilty of having failed to account and deliver trust funds in violation of Section 475.25(1)(d), Florida Statutes. Whether the Respondent is guilty of having failed to immediately place upon receipt deposits received in trust and to maintain said trust funds in the real estate brokerage trust account until disbursement thereof was properly authorized in violation of Section 475.25(1)(k), Florida Statutes. Whether the Respondent is guilty of having failed to make available to the Petitioner or its authorized representative all bank statements for all escrow accounts including cancel led checks, all check books and pending contracts and all documents pertaining to all escrow accounts and for having failed to make available such books and accounts to the Petitioner or its authorized representative at a reasonable time during regular business hours, as required by Rule 21V-14.012, Florida Administrative Code, and therefore in violation of Section 475.25(1)(e), Florida Statutes. Whether the Respondent is guilty of having failed or refused to appear at the time and place designated on the Subpoena Duces Tecum, served October 10, 1988, with respect to an official investigation of alleged violations of Chapter 475, Florida Statutes, in violation of Section 475.42(1)(h), Florida Statutes, and Section 475.25(1)(e), Florida Statutes.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters 120,455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0125817 in accordance with Chapter 475, Florida Statutes. The last license issued to the Respondent was as a broker with a business address of 1605 Main Street. Suite 810, Sarasota, Florida 34236 and a home address of 3409 Prudence Drive, Sarasota, Florida 34235. From on or about November, 1984 to on or about May, 1988, the Respondent was employed by the Boathouse on Longboat, Ltd., a Florida limited partnership, to sell condominium boat storage berths for the limited partnership in which Respondent was a limited partner. On April 15, 1988, Harold Kornhaus, made a offer to purchase a storage space in the amount of $19,500.00. The offer by Harold Kornhaus was not for a specific size storage berth but the berth was to be a specific size. An agent of the Respondent named Michael Tewksbury took the offer from Harold Kornhaus and stated he was obligated to present the offer to the Respondent. The Kornhaus offer was delivered to the Respondent who never presented it to the general partner, Barry R. Lewis. The Respondent changed the Kornhaus offer by changing the first page and indicating another seller, named Currier but otherwise left all other pages as drawn by Tewksbury. The Respondent represented individual limited partners at the expense of the partnership entity by having one of the limited partners, Currier, purchase a storage space at a reduced amount and then reselling that space at a profit to a purchaser, Kornhaus. The Respondent and /or his agent Tewksbury handled the transaction, and received a commission. In another transaction involving the Huntsman to Bradt contract written on April 28, 1988, the Respondent wrote an escrow check at closing on April 28, for $1,950.00, which check was dishonored due to insufficient funds on account. Herbert Jacobs, chairman of Ajax Paving Industries, Inc., of Florida, a renter of space at the Boathouse of Longboat, decided to buy a storage space for his company. The Respondent arranged to sell a storage space to William Pettibon, who was a limited partner. The contract selling William Pettibon a storage space was written on February 1, 1988, for storage space #2325. On April 1, 1988, the Respondent arranged to sell Pettibon's unit #2325 to Herbert Jacobs, chairman of Ajax Paving Industries, Inc. On April 28, 1988, the limited partnership records show the bank balance in the Respondent's escrow account should have been $44,436 when in fact there was a negative balance of $1,120.82. Naples Federal Savings and Loan Association loaned approximately $987,500.00 to the limited partnership. One of the conditions of the loan was that Respondent's escrow account pertaining to all sales contracts, deposits, etc., for the limited partnership be placed with Naples Federal. On February 26, 1987, Respondent wrote a letter to William T. Kirtley, attorney for the limited partnership, and stated that the total balance in the Boathouse escrow account was $82, 109.85. The Respondent could not make a proper accounting of his escrow account on that date, and misrepresented to Mr. Kirtley that he had in excess of $80,000 in his escrow account. On December 22, 1987, the Respondent wrote check No. 151 from the escrow account to Mr. Edward Lerian "Larry" Ay, Jr., in the amount of $11,500. Mr. Ay was a contracted buyer of a boat storage unit and had made a personal loan to the Respondent in the amount of $10,000 in December, 1986. The $11,500 check from the Respondent to Mr. Ay was repayment of the loan, plus $1,500 in interest. Mr. Ay thought that he was loaning money to the Boathouse of Longboat, Ltd., the limited partnership, but such was not the case. The Respondent had no valid reason for writing Mr. Ay a check from the escrow account. The Respondent did not have the prior consent of the general partner for either the loan or the use of escrowed funds. On October 27, 1987, Respondent wrote two checks from the escrow account to David Buyher in respective amounts of $5,317.50 and $187.50. The checks represented repayment of a loan, with interest, made to Respondent by Buyher in 1986. Respondent was without authority to use escrow funds for said purposes. On February 26, 1988, the Respondent wrote check number 203 from the limited partnership escrow account in the amount of $616.73 to the "Mountain Chalet" in Snowmass Village, Colorado. The funds were used for the personal lodging and other services of the Respondent and was done without authority. On March 28, 1988, Respondent wrote check No. 236 in the amount of $10,873.11 to himself. On April 28, 1988 Respondent wrote check No. 258 in the amount of $14,600 also to himself. The two checks referred to above were used to obtain cashiers checks to be used at real estate closings. Respondent was fired as the real estate broker for the Boathouse of Longboat, Ltd., in May, 1988. In August and September, 1988, during Petitioner's investigation, several appointments were made with the Respondent to review the Respondent's escrow account which appointments the Respondent cancelled. On the day of the fifth appointment, the Respondent called and cancelled. The Respondent stated he would not permit the account to be reviewed without a subpoena. On or about October 10, 1988, the Respondent was served with a Subpoena Duces Tecum commanding him to produce for inspection and copying at 1605 Main Street, Suite 810, Sarasota, Florida 34236 on October 10, 1988, at 10:00 a.m., for the Department of Professional Regulation "all bank statements for all escrow accounts including cancelled checks from September 1, 1987 to the present time. All checks books and pending contracts and all other documents appertaining to all escrow accounts." Respondent did not comply with the Subpoena Duces Tecum on October 10, 1988. On or about October 14, 1988, a Subpoena Duces Tecum was properly served on Thomas E. Finley, First Vice President or the Custodian of Records, Naples Federal Savings and Loan Association, 5801 Pelican Bay Boulevard, Naples, Florida 33941-3004 commanding that such Custodian of Records appear at the Petitioner's Office of Investigative Services on October 18, 1988, at 11:00 a.m., and have with him "all bank statements and checks from June 1, 1987, through June 30, 1988, appertaining to the escrow account of Michael H. Diffley, account number 1600070019531." Naples Federal Savings and Loan Association provided the May 31, 1988, statement of Respondent's aforementioned account.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order which finds as follows: Respondent Michael H. Diffley guilty of fraud, violating the provisions of Subsection 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint; Respondent Michael H. Diffley guilty of having failed to account and deliver funds, violating the provisions of Subsection 475.25(1)(d), Florida Statutes. Respondent Michael H. Diffley guilty of having failed to maintain funds in trust, violating the provisions of Subsection 475.25(1)(k), Florida Statutes; Respondent Michael H. Diffley guilty of violating the provisions of Rule 21V-14.012, Florida Administrative Code, for having failed to preserve and make available to the Department account records kept in accord with good accounting prac- tices, and therefore guilty of violating Subsection 475.25(1)(e), Florida Statutes; and Respondent Michael H. Diffley guilty of having violated Subsection 475.42(1)(h), Florida Statutes, by having failed to appear at the time and place required by subpoena, and therefore violated Subsection 475.25(1)(e), Florida Statutes. It is further recommended that the Final Order entered by the Florida Real Estate Commission revoke the Respondent's real estate license for the above- stated violations of Chapter 475, Florida Statutes. It is further recommended that the Final Order entered by the Florida Real Estate Commission impose an administrative fine in the amount of $1,000 for each of five (5) counts of the Administrative Complaint for a total administrative fine in the amount of $5,000 to be paid within thirty (30) days of the Final Order of the Florida Real Estate Commission. DONE AND ENTERED this 8th day of January, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by the Petitioner: Paragraphs 1 through 39- accepted in substance, except for paragraph 5 which is rejected as unnecessary and paragraph 31 which is in the nature of argument. Proposed Findings of Fact submitted by the Respondent: Paragraphs 1 and 2 - rejected as argumentative. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney Department of Professional Regulation Post Office Box 1900 Orlando, FL 32302 Kenneth M. Meer, Esquire 423 Country Club Drive Winter Park, FL 32789 Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact At all times material to this case, Respondent, Antonio Prado, has been a licensed real estate broker in the State of Florida, license no. 0138312. Respondent, Antonio Prado, is the President and qualifying broker for a real estate company called Bayside International Realty, Inc. Respondent, Bayside International Realty, Inc., has been issued real estate license no. 1001760. The Department is the state agency charged with the responsibility of regulating real estate licensees. On January 13, 1995, an investigator employed by the Department conducted an office inspection and audit of the Respondents' place of business. During the course of the audit, the investigator discovered that the escrow account for the business contained $1,000.00. None of the $1,000.00 was, in fact, "trust funds" owed or belonging to a third party as Respondents have not held "trust funds" since August, 1990. The investigator advised Respondent that he was not allowed to hold personal funds in excess of $200.00 in the company escrow account. Based upon that information, Respondent immediately, on January 13, 1995, removed $800.00 from the escrow account leaving a balance of $200.00. The purpose of holding $1,000.00 in the account related to a Barnett Bank policy which required the minimum balance of $1,000.00 to avoid service charges on the account. Respondent, Antonio Prado, has not been active in the real estate practice for several years and was unaware of changes to the escrow policy dating back to December, 1991, which prohibit more than $200.00 of personal funds in an escrow account. Respondent, Antonio Prado, has been licensed for 19 years and has never been disciplined for any violations of the real estate law.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Real Estate Commission enter a final order determining the Respondent, Antonio Prado, committed only a minor technical violation of Section 425.25(1)(e), Florida Statutes, and, in recognition of Respondent's exemplary record as a broker, which, along with his willing, immediate action to correct the error, demonstrates sound judgment, issue a letter of reprimand and guidance regarding escrow account rules and regulations. All other allegations against these Respondents should be dismissed. DONE AND ENTERED this 15th day of May, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 15th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0038 Rulings on the proposed findings of fact submitted by Petitioner: None submitted. Rulings on the proposed findings of fact submitted by Respondent: Paragraphs 1 and 2 are rejected as statements of fact as they are restatement of argument or comment made at the hearing. Paragraphs 3 through 6 are accepted. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Theodore R. Gay Senior Attorney Department of Business and Professional Regulation Division of Real Estate Rhode Building Phase II 401 Northwest Second Avenue N607 Miami, Florida 33128 Antonio Prado, pro se and as President of Bayside International Realty, Inc. 1390 Brickell Avenue, Suite 230 Miami, Florida 33131
The Issue The issue presented is whether Respondents are guilty of the allegations contained in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken against them, if any.
Findings Of Fact At all times material hereto, Respondent Richard Shindler has been a licensed real estate salesman in the State of Florida, having been issued License No. 0395044. The last license issued was as a salesman with Global Real Estate & Management, Inc. At all times material hereto, Respondent Global Real Estate & Management, Inc., has been a corporation registered as a real estate broker in the State of Florida, having been issued License No. 0223589. At all times material hereto, Mark H. Adler was licensed and operated as the qualifying broker and officer of Global Real Estate & Management, Inc. Adler's license is currently under suspension by agreement with Petitioner as a result of the activities complained of in the Administrative Complaint filed in this cause. At no time has Respondent Shindler been a director or officer of Respondent Global Real Estate & Management, Inc. At all times material hereto, Respondent Shindler has been the sales manager for Respondent Global Real Estate & Management, Inc. As the sales manager, Respondent Shindler sometimes helped other salesmen structure financing and helped them with other problems. Respondent Shindler was not responsible for the collection of funds from individual salesmen. Each individual salesman was responsible for collecting funds from any real estate transaction and giving those funds to Respondent Global's bookkeeper for deposit. As sales manager, Shindler was a signatory on the escrow account in order to make disbursements for small transactions mainly involving rental properties. In addition, Respondent Shindler was responsible for the hiring and firing of office personnel. However, he had no control over the contracts of other salesmen. On March 13, 1989, Respondent Shindler, as a private purchaser, made two purchase offers for two pieces of property owned by the same sellers. The purchase offers were for $115,000 and $80,000, respectively, and required that Respondent Shindler place $6,000 and $5,000, respectively, into Respondent Global's escrow account as a deposit on the purchase of the properties. Respondent Global and real estate broker Jay Hirsch were to receive commissions on the sale of the properties. Those offers to purchase disclosed in writing that Respondent Shindler was also a licensed real estate salesman. Although both offers to purchase were accepted by the sellers, the transactions involving the purchase of these properties did not close due to Respondent Shindler's inability to obtain financing, which was a contingency of the contracts. In October, 1989, demands for the release of the escrowed monies were made by the sellers and by the sellers' broker Jay Hirsch. They made demand upon Respondent Global's attorney. Additionally, Jay Hirsch made demand on Mark Adler by telephone and then by demand letter to Adler, who, as the qualifying broker for Respondent Global, was responsible for the release of the escrowed funds. Subsequent to the demands made by the sellers and their broker, Respondent Global filed a complaint for interpleader. The escrowed deposits were eventually disbursed pursuant to a settlement among the parties claiming an interest in the escrowed deposits. In March, 1990, Petitioner began an investigation of the Respondents and Adler. Investigators Castro and Rehm both participated in the investigation. Investigator Castro believed Respondent Shindler to be the office manager of Respondent Global. During the initial interview with Respondent Shindler, he produced records which indicated that a deposit of $14,265.69 had been made on January 13, 1989, into Respondent Global's escrow account. This check had been given by Respondent Shindler to Global's bookkeeper for deposit. This deposit represented proceeds from the sale of property owned by Respondent Shindler's brother Paul, and was placed in escrow in anticipation of the offers to purchase made by Respondent Shindler on the two properties involved in this cause. Investigator Rehm examined the escrow account bank records and determined that for a two-month period the escrow account balance had dropped below the minimum $11,000 balance required by the two contracts in question herein alone. Initially, Respondent Shindler advised the investigators that the bank where the escrow account was maintained had represented that it had debited the escrow account as a result of a lien placed on that account by the Internal Revenue Service. Upon further investigation, Respondent Shindler advised the investigators that the bank itself had withdrawn $3,200 from Global's escrow account to cover a shortage in Respondent Global's operating account. At all times material hereto, both Adler and Respondent Shindler were signatories on the escrow account. As part of its investigation, Petitioner served a subpoena on Maria Aguerra, Respondent Global's bookkeeper, requesting from Adler, or Respondent Shindler, or the custodian of records for Respondent Global Real Estate, all contracts, leases, agreements, monthly bank statements, deposit slips, and cancelled checks for all accounts for the period of January 1, 1989, through March 22, 1990. Some of the requested documents were initially unavailable because they had previously been sent to the Florida Real Estate Commission. Although Adler testified that he was initially unaware that a subpoena had been served, he was given a 30-day extension to produce the records when he met with investigators Castro and Rehm on May 1, 1990. Although Adler had both the responsibility for and control over the records of Respondent Global, he was not fully familiar with the records, and the bookkeeping was in disarray. At all times material hereto, Adler, as the broker for Respondent Global, was responsible for operating the Global office, for overseeing Global's escrow account, for reviewing contracts, and for being aware of the day-to-day events in the Global office. In addition, as the broker, Adler was required to be an officer of the corporation, to be a signatory on the escrow account, to have prepared and to sign the monthly escrow account reconciliations, and to respond to Petitioner if there were complaints or requests for production of documents. Adler, as the broker for Respondent Global, did not reconcile and sign escrow account statements on a monthly basis since he was not aware of the requirement that he do so. However, Adler did testify that he was aware of his responsibility for escrowed funds. At no time did Respondent Shindler have the responsibility to maintain Global's escrow account or to reconcile the escrow account on a monthly basis. At no time did Respondent Shindler represent that he was the broker for Respondent Global or that he was a broker. Respondent Shindler did not state to investigator Rehm that he was acting as the broker for Global or that Adler had simply lent Adler's license to Shindler to use. At no time did Adler and Respondent Shindler enter into an agreement whereby Shindler would act as the broker for Global using Adler's broker's license, and Adler was never paid any monies for any use of his broker's license. Adler testified that his involvement with Global's business had declined as he had pursued his growing interest in performing appraisals.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered: Dismissing Counts II, III, VII, VIII, and IX of the Administrative Complaint filed herein; Finding Respondent Global Real Estate & Management, Inc., guilty of the allegations contained in Count V of the Administrative Complaint; and Ordering Respondent Global Real Estate & Management, Inc., to pay a fine in the amount of $500 by a date certain. RECOMMENDED in Tallahassee, Leon County, Florida, this 20th day of March, 1991. LINDA M. RIGOT 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 20th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4522 Petitioner's proposed findings of fact numbered 2-5, 7-9, 11-12c, 13, 14, and 16 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 6 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 10, 15, and 17 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 12d has been rejected as being irrelevant to the issues under consideration herein. Respondents' proposed findings of fact numbered 1-22 have been adopted either verbatim or in substance in this Recommended Order. The transcript of proceedings, together with Petitioner's Exhibits numbered 3, 5, and 8-14 and Respondents' Exhibit numbered 1 which were admitted in evidence. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate - Legal Section 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Harold M. Braxton, Esquire 9100 South Dadeland Boulevard Suite 400 - One Datran Center Miami, Florida 33156 Jack McRay General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
