Findings Of Fact The Respondent, Eric Nartek, is now, and in the years relevant to this case, 1984 and 1985, a licensed real estate broker. On about August 6, 1984, Kenneth P. Grant and Mary E. Grant gave to Mr. Martek a deposit of $1,000 (in two payments) as deposit for the purchase of a condominium from Goldenrod Realty Company. At that time, Mr. Nartek was the broker and president of Goldenrod Realty Company. Through no fault of Mr. and Mrs. Grant, closing of the sale of the condominium was prevented due to a cloud on title. Subsequently, on March 21, 1985, Mr. and Mrs. Grant demanded return of their $1,000 deposit. Mr. Martek's office manager, who worked under Mr. Martek's supervision, disbursed the $1,000 deposit to pay interest expenses of the developer, expenses which were not in any way an expense of the Grant's contract for sale. Mr. Martek asserted that he reviewed the disbursements from the escrow account every week and that he was in Boca Raton during this period, and not physically in the office. He discovered the disbursement after the fact. The disbursement was made to the developer by the office manager upon the request of the attorney for the developer. The office manager did not contact Mr. Martek before making the disbursement. Mr. Martek allowed his office manager to make disbursements from escrowed deposits without his prior review and approval. Mr. Martek requested an escrow disbursement order from the Florida Real Estate Commission, and that request was denied by letter dated June 24, 1985, since there was no contract closing date. The letter advised Mr. Martek that he immediately use one of the other two alternatives under section 475.25(1)(d), Fla. Stat., to either arrange for arbitration or to place the dispute before a civil court. Mr. Martek received the letter of June 24, 1985. He did not initiate either alternative. The $1,000 deposit has not been returned to Mr. and Mrs. Grant.
Recommendation For these reasons, it is recommended that the Petitioner enter its final order finding the Respondent in violation of sections 475.25(1)(b) and (d), Fla. Stat., and suspending his real estate license for one (1) year. DONE and RECOMMENDED this 13th day of May, 1988, in Tallahassee, Florida. WILLIAM C. SHERILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1988. COPIES FURNISHED: Arthur R. Shell, Esquire DPR-Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Eric Martek 5118 South Federal Highway Stuart, Florida 33494 Darlene F. Keller Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida, 32802 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
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 The issue in this case is whether the methodology that Respondent uses to determine the amounts payable to pharmacies for prescription drugs dispensed to Medicaid beneficiaries constitutes an invalid exercise of delegated legislative authority on the ground that the methodology in question, which is incorporated by reference in Florida Administrative Code Rule 59G-4.250, enlarges, modifies, or contravenes the specific provisions of law implemented.
Findings Of Fact The Parties Medicaid is a cooperative federal-state program in which Florida participates in partnership with the national government. Medicaid provides medically necessary health care—— including, relevantly, prescription drugs——to lower income persons. In addition to shouldering administrative and regulatory responsibilities, Florida partially funds the Florida Medicaid Program, contributing about 42 percent of the money budgeted for the program's operation in this state. Federal funds make up the balance. Respondent Agency for Health Care Administration (the "Agency") is the state agency charged with administering the Medicaid Program in Florida. (At the federal level, the Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services, known collectively as "CMS," is the agency authorized to administer Medicaid.) Among other things, the Agency is responsible for reimbursing Medicaid providers in accordance with state and federal law, subject to specific appropriations. In this connection, the Agency is authorized and required to prescribe, by rule, reimbursement methodologies. The Agency is permitted to publish such methodologies in policy manuals and handbooks, provided the latter are incorporated by reference in duly promulgated rules. Petitioner, The Florida Retail Federation, Inc. (the "Federation"), is a trade association whose members include all or most of the major drugstore chains doing business in Florida. These drugstore chains, which include Walgreen's, CVS, Eckerd's, Albertson's, Publix, Winn-Dixie, Target, and Wal-Mart, participate in the Federation's Chain Drugstore Council, which is the only organization in this state representing the interests of drugstore chains. Members of the Federation's Chain Drugstore Council operate more than 2,500 separate pharmacies, each of which is an enrolled Medicaid provider of prescription drugs. Given that there are approximately 4,000 pharmacy-providers participating in the Florida Medicaid Program, the Federation represents a significant percentage of the enrolled pharmacies. The Federation advocates on behalf of its members before the Florida Legislature and the state regulatory agencies. Medicaid funding is one of the organization's top priorities. The Federation brought the instant proceeding because it believes that the Medicaid Program has been under- reimbursing its members based on a methodology that contravenes the applicable Florida statutes. The Disputed Rule The Medicaid reimbursement methodology for prescribed drugs is set forth in the Florida Medicaid Prescribed Drugs Services Coverage, Limitations, and Reimbursement Handbook, July 2001 (the "Handbook), which Handbook was incorporated by reference in, and hence adopted via Section 120.54(1)(i)1., Florida Statutes, as, Florida Administrative Code Rule 59G- 4.250. The methodology, which will be referred to hereafter as the "Reimbursement Rule," limits the amount that the Medicaid Program will pay for prescription drugs, as follows: Reimbursement for covered drugs dispensed by a licensed pharmacy that has been approved to be an eligible provider, or a physician filling his own prescriptions if there is no licensed pharmacy within a ten mile radius of his office, shall not exceed the lowest of: Average Wholesale Price (AWP) minus 13.25 per cent of the drug, (also known as the Estimated Acquisition Cost or EAC) plus the dispensing fee; Wholesaler Acquisition Cost (WAC) plus 7 per cent plus the dispensing fee; Federal Upper Limit (FUL) price plus the dispensing fee; The State Maximum Allowable Cost (SMAC) plus a dispensing fee established by the state on certain categories of drugs not reviewed by CMS (formerly HCFA); or Amount billed by the pharmacy, which cannot exceed the pharmacy’s average charge to the public (non-Medicaid) in any calendar quarter, for the same drug, quality, and strength. This average is known as the pharmacy’s usual and customary charge for the prescription. By its plain terms, the Reimbursement Rule (a) requires that five separate methods for determining reimbursement be applied with respect to each prescription and (b) mandates that the maximum allowable payment for each prescription be the lowest dollar amount resulting from the application of these five methods to the claim at hand.1 For ease of reference, the five separate methods enumerated in the Reimbursement Rule will be referred to collectively as the "Limits." Individually, the Limits will be called the "First Limit," "Second Limit," etc., with the numerical adjective corresponding to the order in which the Reimbursement Rule lists the respective Limits. (Thus, for example, the First Limit is the one based on average wholesale price; the Fourth Limit references the state maximum allowable cost.)2 The Reimbursement Rule was promulgated to implement two statutes in particular. One of these was Section 409.908, Florida Statutes, which provided in pertinent part as follows: A provider of prescribed drugs shall be reimbursed the least of the amount billed by the provider, the provider's usual and customary charge, or the Medicaid maximum allowable fee established by the agency, plus a dispensing fee. § 409.908(14), Fla. Stat. (2003). The other was Section 409.912, Florida Statute, which directed, in relevant part, that "[r]eimbursement to pharmacies for Medicaid prescribed drugs shall be set at the average wholesale price less 13.25 percent." § 409.912(40)(a)2., Fla. Stat. (2003). The Challenge The Federation filed its Petition for Invalidity of Rule ("Petition") on May 19, 2004, initiating the instant proceeding. The Petition describes a straightforward objection to the Reimbursement Rule, namely that the prescribed Limits include methods for determining reimbursement in addition to "average wholesale cost less 13.25 percent," which latter, according to the Petition, constitutes the exclusive method for reimbursing pharmacies, pursuant to Section 409.912(40)(a)2., Florida Statutes (2003). Thus, the Federation alleged, only the First Limit is permissible; the rest are unauthorized, and the Reimbursement Rule enlarges, modifies, or contravenes Section 409.912(40)(a)2. for using them, making the Reimbursement Rule an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(c), Florida Statutes. As this proceeding progressed, the Federation's position became a bit more complicated. Forced to deal with Section 409.908(14), Florida Statutes (2003), which was not mentioned in the Petition, the Federation effectively conceded (assuming it ever disputed) that "amount billed" and "usual and customary charge" are statutorily authorized methods for calculating reimbursement, in addition to discounted average wholesale price. Unable as a result to argue that the Fifth Limit should be rejected in toto, the Federation claimed instead that the Reimbursement Rule's definition of "usual and customary charge" enlarges, modifies, or contravenes the use of that term in Section 409.908(14), Florida Statutes (2003). On this point, the Federation presented expert testimony at hearing that "usual and customary charge" is a term of art used in the industry to mean the amount a pharmacy charges cash paying customers who have no insurance coverage for the prescription in question. The Reimbursement Rule's definition, in contrast, does not restrict the scope of "usual and customary charge" to uninsured customers, but rather requires that charges to all non-Medicaid customers be taken into account in determining the average charge that equals "usual and customary charge." Because private insurers and HMOs typically negotiate discounts not available to uninsured consumers, the inclusion of amounts charged to insured customers in the equation for calculating "usual and customary charge," à la the Reimbursement Rule, is likely to produce, in most instances, a lower "usual and customary charge" than would obtain were charges to insured customers excluded from the calculation. The Federation argues that the legislature intended "usual and customary charge" to have the more generous technical meaning that the industry ascribes to it, and therefore that the Reimbursement Rule enlarges, modifies, or contravenes the specific law implemented by giving the term a different, more parsimonious meaning. Confronting Section 409.908(14) also compelled the Federation to argue that, while the section imposes (and hence enables the Agency to implement) limits on reimbursement in addition to discounted average wholesale price, the reference therein to "the Medicaid maximum allowable fee established by the agency" as an alternative reimbursement limit nevertheless cannot be construed as authority for the adoption of a methodology that would result in reimbursement at less than the least of (a) the amount billed by the provider, (b) the provider's "usual and customary charge" (as the Federation would define that term), or (c) average wholesale cost less 13.25 percent. In this regard, the Federation asserts that Section 409.908(14) and Section 409.912(40)(a)2.——which might at first blush appear to be inconsistent with one another——can easily be harmonized by construing "Medicaid maximum allowable fee established by the agency" to mean "average wholesale price less 13.25 percent." The Agency's Defense of Reimbursement Rule The Agency's arguments in support of the Reimbursement Rule can be reduced to two principal propositions. First, the Agency insists that if it were to reimburse pharmacies for all prescribed drugs at average wholesale price less 13.25 percent, the resulting payments, in the aggregate, would exceed federal limits on reimbursement, for reasons that need not detain us here. Exceeding federal limits, the Agency asserts, could cause CMS to take adverse action against the Florida Medicaid Program, perhaps putting at risk Florida's continued receipt of federal matching funds. Second, the Agency contends that Section 409.912(40)(a)2., Florida Statutes (2003), which requires that reimbursement be set at the average wholesale price less 13.25 percent, does not establish a floor (as the Federation maintains) but rather, when read in conjunction with Section 409.908(14), Florida Statutes (2003), prescribes another potential ceiling in addition to the pharmacy's actual charge, "usual and customary charge," and "the Medicaid maximum allowable fee established by the agency," which are the other potential ceilings pursuant to Section 409.908(14). Under this interpretation of the statutes, application of the Reimbursement Rule always produces the Medicaid maximum allowable fee established by the Agency——a statutorily authorized limit——and if that fee happens in a given situation to be less than the discounted average wholesale price, so be it. The New Statutory Methodology The 2004 Legislature amended Sections 409.908(14) and 409.912(40)(a)2., Florida Statutes (2003), enacting a bill (House Bill No. 1843) that was signed by the governor while this case was pending, on May 28, 2004. See Laws of Florida, Ch. 2004-270, §§ 12 and 17. The relevant statutory amendments took effect on July 1, 2004, id. at § 25, which was shortly after the final hearing in this case——and prior to the date of this Final Order. As amended, Section 409.908(14), Florida Statutes (2004), reads in relevant part as follows, with the recently added language underlined: A provider of prescribed drugs shall be reimbursed the least of the amount billed by the provider, the provider's usual and customary charge, or the Medicaid maximum allowable fee established by the agency, plus a dispensing fee. The Medicaid maximum allowable fee for ingredient cost will be based upon the lower of: average wholesale price (AWP) minus 15.4 percent, wholesaler acquisition cost (WAC) plus 5.75 percent, the federal upper limit (FUL), the state maximum allowable cost (SMAC), or the usual and customary (UAC) charge billed by the provider. As amended, Section 409.912(40)(a)2., Florida Statutes (2004), provides in pertinent part as follows, with the newly added language underlined and recently deleted language stricken through: Reimbursement to pharmacies for Medicaid prescribed drugs shall be set at the lesser of: the average wholesale price (AWP) minus 15.4 percent, the wholesaler acquisition cost (WAC) plus 5.75 percent, the federal upper limit (FUL), the state maximum allowable cost (SMAC), or the usual and customary (UAC) charge billed by the provider the average wholesale price less 13.25 percent. Collectively, Sections 409.908(4) and 409.912(40)(a)2., Florida Statutes (2004), will be referred to hereafter as the "New Statutory Methodology."
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
The Issue The issues in this case are whether Respondents violated Sections 475.25(1)(e) and (b), Florida Statutes (1995),1 by failing to provide timely written notification to the Florida Real Estate Commission (the "Commission") of any good faith doubt as to whom funds in Respondents' escrow account should be disbursed; by engaging in fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust; and, if Respondents violated either or both statutes, what, if any, penalty should be imposed against Respondents' licenses.
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of licensees in the state. Respondents are both licensed in the state. Respondent Carey is licensed as a real estate broker and holds license number 0577832. The last license was issued to Respondent Carey as a broker at Crescent Properties, Inc., 200 N. Denning Drive, Suite 2, Winter Park, Florida 32789-3762. Respondent Carey was licensed and operating as broker and officer of Respondent Crescent Properties, Inc. ("Crescent"). Crescent is registered as a real estate broker corporation and holds registration number 0577832. The last registration was issued to Crescent as a broker, Crescent Properties, Inc., 200 N. Denning Drive, Suite 2, Winter Park, Florida 32789-3762. On October 10, 1995, Respondents and Estrella Acosta entered into a property management agreement for a residence located at 563 Northbridge Drive, Altamonte Springs, Florida. The landlord agreed to pay Respondents half of the first month's rent for securing a tenant and 10 percent of all rent payments for managing the property. On December 16, 1995, Respondents, as Acosta's agent, leased the property to Victor and Maria Thompson (the "tenants"). The lease agreement provided in relevant part that: the tenants would pay a $735.00 security deposit and $735.00 a month in rent for 12 months; Crescent would act as the landlord's agent and would collect all funds due under the lease. The tenants paid the $735.00 security deposit to Respondents. Respondents placed the security deposit into the escrow account. However, the tenants paid monthly rent directly to the landlord. By letter dated January 31, 1996, Acosta advised Respondents that Acosta was terminating the property management agreement. The letter requested that Respondents release the $735.00 security deposit to Acosta. On February 12, 1996, Respondents mailed a letter to the tenants. The letter requested the tenants' consent to release the security deposit to Acosta. The tenants did not respond to the letter. Respondents did not know whether the tenants agreed to or objected to release the security deposit. Respondents continued to hold the security deposit in Respondents' escrow account. Respondent Carey sought advice from the legal hot line service made available by the local Realtor association. Respondent Carey was confused and erroneously believed that the hot line acted as an agent for the Commission. Respondents did not advise the Commission in writing that Respondents had a good faith doubt as to whom the security deposit should be disbursed. Respondents did not send the tenants a certified letter advising that the tenants must respond by a date certain or Respondents would disburse the security deposit to Acosta. Respondents did not institute one of the settlement procedures set forth in Section 475.25(1)(d)1 including a request that the Commission issue an escrow disbursement order. Respondents had a good faith doubt as to whom the security deposit should be disbursed. Respondents mailed Acosta a monthly accounting dated February 6, 1996, which stated in relevant part: SECURITY DEPOSIT: $735.00 IN DISPUTE AN ESCROW DISBURSEMENT ORDER HAS BEEN FILED. The reference to a disbursement order was not a misrepresentation. Respondent believed that she was undertaking the appropriate steps for a disbursement order by following the advice obtained on the hot line provided by the local Realtor association. On February 12, 1996, less than two weeks after the landlord advised Respondents that the landlord had terminated the lease, Acosta filed a complaint against Respondents with Petitioner. By letter dated February 26, 1996, Petitioner notified Respondent Carey of Acosta's complaint. Respondents did not know whether Acosta's termination of the lease was based on a default by the tenants or was itself a default by the landlord. Pursuant to the terms of the lease agreement, Respondents asserted an offset against the landlord for half of the first month's lease and 10 percent of the lease payments due for the 12 month lease term. In a letter to Acosta dated August 27, 1996, Respondents stated in relevant part: Per my conversation with the Department of Business and Professional Regulation Division of Real Estate: It has been determined that your claim against us was unwarranted and false . . . You have caused everyone us, DBPR, our attorney, a great deal of unwarranted lost time . . . .
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondents guilty of violating Section 475.25(1)(e), not guilty of violating Section 475.25(1)(b), issuing a written reprimand to Respondents, and requiring Respondent Carey to complete seven hours of continuing education in one or more escrow management courses for real estate brokers. DONE AND ENTERED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. Hearings Hearings DANIEL MANRY Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 4889675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 6th day of January, 1998.
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 is whether Respondents' real estate licenses should be disciplined on the ground that Respondents allegedly violated a rule and various provisions within Chapter 475, Florida Statutes, as charged in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondents, Edward D. Armbruster and Colleen Michele Armbruster, were licensed real estate brokers having been issued license numbers 0002159 and 0362890, respectively, by Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). Respondents served as qualifying brokers and officers of Respondent, Armbruster Realty, Inc., a corporation registered as a real estate broker and located at 1031 West Nelson Avenue, DeFuniak Springs, Florida. The corporation holds license number 0211855, also issued by the Division. On July 10, 1996, Gerald and Joyce Singleton, who had just relocated to California, entered into a contract with James B. and Joyce Patten to sell their single-family residence located on Madison Street in the City of Freeport, Florida, for a price of $78,000.00. The contract called for the Pattens to pay $1,000.00 as an earnest money deposit, to be held in escrow by Respondents. The contract further provided that "[c]losing shall be within 30 days (more or less) after acceptance of this contract," and that "[i]n the event that buyer defaults and deposit is forfeited, it is agreed said deposit shall be divided equally between seller and broker." The transaction was handled by Geraldine Dillon (Dillon), a salesperson in Respondents' office, who is now retired. Because the Pattens had recently moved to Walton County from Washington State, and they were temporarily living with a relative in a mobile home, the time for closing was of the essence. Accordingly, the Pattens inserted into the contract a provision requiring that a closing be held within "30 days (more or less)." This meant that a closing should be held on or about August 10, 1996, give or take a few days. The parties acknowledge that property boundary problems were somewhat common in certain areas of Freeport, including the area where the subject property was located. To satisfy the bank and title company, a surveyor was engaged to prepare a survey of the property. However, the parties agree that the surveyor noted problems with the boundaries of the lot. When a second surveyor would not undertake the survey because of similar boundary problems, Joyce Patten, who was the principal negotiator for the couple, notified Dillon that they did not wish to close because of potential title problems and wanted a refund of their deposit. Notwithstanding this concern, Dillon advised Joyce Patten that a third surveyor would be hired, at the seller's expense, and he could "certify" the property. Although Joyce Patten expressed concern that the bank might not accept a third survey after two earlier ones had failed, and she did not want to pay for another survey, she did not instruct Dillon to stop the process. Accordingly, Dillon engaged the services of Tommy Jenkins, a local surveyor, to perform another survey. After a certified survey was obtained by Jenkins on August 12, 1996, which Respondents represent without contradiction satisfied the lender and title company, a closing was scheduled within the next few days. This closing date generally conformed to the requirement that a closing be held by August 10, 1996, "more or less." The seller, who by now had relocated to California, flew to Florida for the closing, and the title company prepared a closing statement and package. Just before the closing, however, Respondents learned through a representative of the title company that the Pattens were "cancelling the closing," apparently in violation of the contract. Shortly after the aborted closing, Joyce Patten requested that Dillon return their deposit. By this time, the Pattens had already entered into a second contract to buy another home in the same area and closed on that property before the end of August. Respondents were never informed of this fact by the Pattens. On August 21, 1996, Colleen Armbruster prepared a rather lengthy letter to the Pattens (with a copy to the sellers) in which she acknowledged that they had orally requested from Dillon that their escrow deposit be returned. The letter has been received in evidence as Petitioner's Exhibit 4. Armbruster stated that she was "perplexed" that they were demanding a refund of their earnest money deposit, given the fact that the seller had "met the terms and conditions of the sale." Armbruster outlined the three reasons in the contract which would allow the Pattens to withdraw without forfeiting their deposit, but noted that none were applicable here. Accordingly, she advised them that the seller would be consulted as to his wishes regarding the deposit, and that the Pattens should contact her if they had any questions. Through oversight, however, she did not include a notice to the Pattens that they must respond to her letter within a stated period of time reaffirming their demand for the trust funds, or the deposit thereafter would be disbursed pursuant to the contract. By failing to include this specific language, and sending the letter by regular rather than certified mail, return receipt requested, Respondents committed a technical, albeit minor, violation of an agency rule. Even so, the Pattens acknowledged receiving the letter, and there is no reason to believe that they did not understand its import, especially the requirement that they contact the broker if they disagreed with the proposed disbursement of the money. It can be reasonably inferred that the Pattens did not respond because they "figured [they weren't] going to be able to get [their] money back" due to their failure to perform. On September 13, 1996, the seller's attorney advised the Pattens by letter that the seller considered the deposit forfeited pursuant to paragraph 15(a) of the contract, which pertains to the "Default" provisions. The Pattens never responded to either letter, and they also failed to respond to telephone calls made by Respondents or their agents regarding this matter. In view of the Pattens' lack of response or reaffirmance of their demand, and the fact that they had already closed on another property, Respondents logically and fairly assumed that the Pattens were in agreement with the disbursement procedures outlined in Coleen Armbruster's letter of August 21. Accordingly, on September 17, 1996, Edward Armbruster, who had not been involved in this transaction to date, in good faith signed two disbursement checks giving $697.50 to the seller and retaining the balance for his firm. This division was consistent with the terms of the contract. In making this disbursement, there was no intent on the part of Respondents to trick, deceive, breach their trust, or in any way unlawfully deprive the Pattens of their deposit. Respondents did not notify the Florida Real Estate Commission (Commission) that they had received conflicting demands for a deposit, nor institute any other procedures regarding the deposit, since they no longer had any good faith doubt as to whom was entitled to their trust funds. This was because the Pattens had failed to respond to letters and telephone calls regarding the sellers' claim to the deposit. There is no evidence that Respondents have ever been the subject of prior disciplinary action during their lengthy tenure as licensees. At the same time, it is noted that Respondents acted in good faith throughout the process and genuinely believed that there was no dispute. It should also be recognized that, for at least part of the time, the Pattens were working two contracts simultaneously without advising the realtors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding Respondents guilty of a technical violation of Rule 61J2-10.032(1), Florida Administrative Code, and Section 475.25(1)(e), Florida Statutes, and that they be given a reprimand. All other charges should be dismissed. DONE AND ENTERED this 28th day of July, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1998. COPIES FURNISHED: Henry M. Solares, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Christine M. Ryall, Esquire 400 West Robinson Street Suite N-308 Orlando, Florida 32801-1772 Edward D. Armbruster Colleen M. Armbruster Post Office Box 635 DeFuniak Springs, Florida 32433 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the two Respondents, one individual and one corporation, on the basis of alleged violations set forth in an eight-count1 Administrative Complaint. The Respondents are charged with violation of Section 475.25(1)(b), Florida Statutes, and with multiple violations of Section 475.25(1)(e), Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with responsibilities and duties which include the prosecution of Administrative Complaints against licensees under Chapter 475, Florida Statutes. Respondent Hilda H. Bell is now, and was at all times material hereto, a licensed Florida real estate broker, having been issued license number 0349586 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker at Sharmic Realty, Inc., at the following address: 8701 Willes Road, Unit 16-308, Coral Springs, Florida 33067. Respondent Sharmic Realty, Inc., is now, and was at all times material hereto, a corporation registered as a Florida real estate broker, having been issued license number 0243150 in accordance with Chapter 475, Florida Statutes. The last license issued was at the following address: 8701 Willes Road, Unit 16- 308, Coral Springs, Florida 33067. At all times material hereto, Respondent Hilda H. Bell was licensed and operating as the qualifying broker of, and an officer of Respondent Sharmic Realty, Inc. On September 27, 1994, Petitioner's Investigator Margaret R. Hoskins audited Respondents' escrow accounts. The audit revealed that the Respondents maintained Property Management Escrow Account Number 00300066617 at Glendale Federal Bank, Fort Lauderdale, Florida. A total trust liability for the Respondents' Property Management Escrow Account could not be determined because the Respondents did not have complete and accurate records. On August 11, 1992, the Respondents deposited $20,000.00 into their Property Management Escrow Account for a person who did not have a checking account. On August 11, 1992, the Respondents issued escrow check number 0972 in the amount of $20,000.00. On August 18, 1992, the Respondents loaned Cecil Sailsman $500.00 from the Property Management Escrow Account. On January 12, 1993, the Respondents deposited $22,496.91 in personal funds into the Property Management Escrow Account. The Respondents subsequently disbursed $15,045.00 of the personal funds from the Property Management Escrow Account.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case to the following effect: Dismissing Counts III and IV of the Administrative Complaint; Concluding that the Respondents are guilty of the violations charged in Counts I, II, V, VI, VII, and VIII of the Administrative Complaint; and Imposing administrative penalties consisting of the following: An administrative fine against Respondent Hilda H. Bell in the amount of three thousand dollars ($3,000.00); A six month suspension of the real estate brokerage license of Respondent Hilda H. Bell; A one year period of probation for the Respondent Hilda H. Bell, to begin immediately following the period of suspension; A requirement that the Respondent Hilda H. Bell complete additional education in the form of a seven hour course in real estate brokerage escrow management during her period of probation; and A reprimand of Respondent Sharmic Realty, Inc. DONE AND ENTERED this 2nd day of April 1996 in Tallahassee, Leon County, Florida. MICHAEL M. 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 2nd day of April 1996.
The Issue Whether Respondent violated Sections 475.25(1)(b),(e),(k), and Section 475.42(1)(b), Florida Statutes, and Rule 61J-14.009, Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Tam N. Shigley (Shigley) was provided notice of the final hearing in this case by Notice of Hearing by Video dated December 6, 1996. The final hearing was scheduled to commenced at 9:00 a.m. on January 31, 1997. The Administrative Law Judge and counsel for Petitioner waited until 9:15 a.m. to commence the hearing, but Shigley did not appear. Shigley did not advise either the Division of Administrative Hearings or the Petitioner that she would not be appearing at the final hearing. Shigley is now and was at all times material to this proceeding a licensed Florida real estate salesperson, issued license number 0465639. On March 27, 1994, Shigley was employed by First Nationwide Mortgage. She negotiated a contract between Bich Hue and Minh Huynh (hereinafter Buyers) and Lois A. Hopwood (hereinafter Seller) for the purchase of a house located in Sunrise, Florida. Shigley was listed as the contract escrow agent on the contract. Shigley received a check for $5,500 from the Buyers as a deposit to be held in escrow until the closing. Shigley cashed the check and did not deposit the proceeds of the check in an escrow account. Shigley’s employer was unaware that Shigley had accepted the check, had cashed the check, and had not deposited the check in the escrow account. At the closing of the real estate transaction, Shigley did not have the $5,500 which she had received from the Buyers and stated that she had lost the money. On May 23, 1994, Shigley entered into an agreement with the seller in which she agreed to pay the Seller the $5,500 within six months and that if she did not repay the money within the specified time that the Seller would report Shigley’s actions to the Real Estate Board. Shigley did not repay the money to the Seller. Michael Millard filed a complaint with the Broward County Sheriff’s Department in March, 1995, alleging that Shigley had absconded with $1350 which he had given her as a deposit on a lease. On March 14, 1995, Harvey Kosberg filed a complaint with the Department of Business and Professional alleging that Shigley, while registered as a salesperson with Rainbow Realty had acted as a broker and took and kept money in her name. The Department undertook to investigate the allegations of Mr. Kosberg and was unable to locate Shigley. She did not have a telephone listing, and the post office did not have a forwarding address for her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Tam N. Shigley violated Sections 475.25(1)(b),(e),(k), and 475.42(1)(b), Florida Statutes, and Rule 61J2-14.009, Florida Administrative Code and revoking her license as a real estate salesperson. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of March, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1997. COPIES FURNISHED: Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation/Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772 Tam N. Shigley 5834 Autumn Ridge Road Lake Worth, Florida 33463 Henry M. Solares, Division Director Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
