The Issue Whether James F. Robertson signed a false affidavit in violation of Section 475.25(1)(a), Florida Statutes.
Recommendation In making a recommendation in this matter, the Hearing Officer considers the following factors relating to James F. Robertson's fitness to be a registrant of the Florida Real Estate Commission. Robertson admitted that he realizes that he executed a false affidavit. Robertson did not falsify the affidavit with the intent to defraud anyone because he intended to pay all the subcontractors and materialmen and thought that he had the ability to pay them. Robertson pledged his personal assets to the payment of the L & M account print to the lien which indicates his intent to make good the account. Robertson is apparently concerned about the Smith's problem but has not been able to settle the account with L & M. Based on the foregoing findings of fact, conclusions of law, and facts in mitigation, the Hearing Officer would recommend that the registration as real estate broker of James F. Robertson be suspended two years; and further, that this suspension be suspended as long as Robertson makes regular payments on the debt to L & M Builder Supplies, Inc., such that the debt will be liquidated at the end of the two year period and the lien against the Smith's home satisfied. DONE and ORDERED this 29th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32303 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James F. Robertson c/o Gernada Realty, Inc. 2007 Parsons Avenue, North Seffner, Florida 33584
The Issue Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that the Respondents are guilty of failing to maintain the required entrance sign on or about the entrance to the principal office in violation of Subsection 475.22, Florida Statutes and Rule 21V-10.024, Florida Administrative Code and are therefore in violation of Subsection 475.25(1)(e), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that Respondents are guilty of failing to register a branch office in violation of Subsection 475.24, Florida Statutes, and Rule 21V-10.023, Florida Administrative Code, and therefore are in violation of Subsection 475.25(1)(e), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that the Respondent Max S. Long, Jr., is guilty of failing to be a signatory on all escrow accounts in violation of Rule 21V-14.010, Florida Administrative Code and therefore is in violation of Subsection 475.25(1)(e), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that the Respondents' are guilty of failing to maintain trust funds in the real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized in violation of Subsection 475.25(1)(k), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that Respondents' are guilty of culpable negligence or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner is a state 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 Max S. Long, Jr. was at all times material hereto a licensed real estate broker in the State of Florida having been issued license numbers 0253744, 0253742, and 0258199 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker for Stonegate Realty, Inc., 2325 Ulmerton Road, Clearwater, Florida 34620 and Queens Harbour Realty, Inc., 711 San Pablo Road North, Jacksonville, Florida 32225. Respondent Long has been a licensed salesperson since 1974 and a licensed broker since 1978. The Respondent Stonegate Property Management Corporation was at all times material hereto a corporation registered as a real estate broker in the State of Florida having been issued license number 0240617 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 2325 Ulmerton Road, Clearwater, Florida 34620. The Respondent Stonegate Realty, Inc. was at all times material hereto a corporation registered as a real estate broker in the State of Florida, having been issued license number 0182660 in accordance with Chapter 475, Florida Statutes. The last licensed issued was at the address of 2325 Ulmerton Road, Clearwater, Florida 24620. The Respondent Queens Harbour Realty, Inc., is now and was at all times material hereto a corporation registered as a real estate broker in the State of Florida, having been issued license number 0257554 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 711 San Pablo Road North, Jacksonville, Florida 32225. On or about October 17, 1989, DPR investigator Marjorie G. Maye (hereinafter Maye) conducted an inspection and audit of Respondents' offices and escrow accounts in Clearwater. Maye discovered that the Respondents did not display an office entrance sign for the corporations. Since the inspection Respondents have erected the proper sign which has been displayed continuously since that date. Respondents were operating an unregistered branch office located at 13280 Broadhurst Loop S.W., Ft. Myers, Florida. Respondents did not register the office because the salesperson was an employee of the developer and sold only property at that project. Since the inspection Respondents have properly registered the branch office. At the time of the inspection and audit Respondent Long was not a signatory on Respondents' escrow accounts. Since the inspection, Respondent Long has been added as a signatory to the escrow accounts. At the time of the audit Respondents' escrow account titled Queens Harbour Realty - Escrow account number 0089798317 maintained at C & S Bank of Pinellas County on September 30, 1989, had a current liability of $54,010.66, a reconciled bank balance of $8,537.99 thus indicating a shortage of approximately $45,472.67. Ultimately, the Respondents reduced the shortage to zero and the accounts balanced. At the time of the inspection and audit, Ed Perry, CPA, was employed by Respondent Queens Harbour in the accounting department and was in charge of the Queens Harbour Realty - Escrow account which was maintained out of Clearwater, Florida. George Patterson and Ed Perry, CPAs, and other individuals were signatories on this escrow account. The escrow accounts were used for deposits on real estate sales and leases. The funds were disbursed at sale or upon termination of the lease. Some of the funds received by Respondents were not required to be held in escrow. Eventually the deposits from several projects were placed in the escrow accounts. Disbursements were made from the escrow accounts even though the funds were not required to be deposited in the escrow account. This resulted in confusion as to the exact amounts of funds required to be maintained in the escrow accounts and which funds were available for distribution. Shortages in the escrow accounts were a result of intercompany loans and disbursements, as well as, from the co-mingling of funds. These were made at the direction of George Patterson. On or about October 13, 1989, Ed Perry, CPA and George Patterson, supervisor of the accounting department, signed a $6,000.00 check from Respondents' escrow account which was used for the purchase of a vehicle for Queens Harbour Yacht and Country Club. When this error was discovered the $6,000.00 was re-deposited to the escrow account. Respondent Long, became the broker for Stonegate Realty at the request of his cousin, Fred Bullard, the President of the Bullard Group, and a majority shareholder in Queens Harbour Realty, Inc. He was not aware of and did not sign any of the checks representing the inter-company loans or for the purchase of the vehicle. He derived no benefit from these loans. Respondent Max S. Long, Jr. understood at all times material to the allegations in the Administrative Complaint that an escrow account is one used to hold funds belonging to third parties and that he, as the real estate broker, acted in a fiduciary capacity to those third parties. Respondent Long relied completely on the corporation's in-house accountants to properly prepare the accounting for the escrow funds. Since the DPR investigation, there have been no shortages in the escrow account, monthly reconciliation reports are prepared and signed by Respondent Long, and the escrow accounts are routinely reviewed by Respondent Long. Respondent Long has had no prior disciplinary proceedings before the Commission.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and the evidence of the record, including the contents of the several exhibits received into evidence, it is, therefore: RECOMMENDED that the Respondents be found guilty of having violated Subsections 475.25(1)(b), (e) and (k), Florida Statutes, (1989), as charged in the Administrative Complaint. It is further RECOMMENDED that Respondents shall jointly pay a penalty of $500 and that Respondent Long's real estate licenses be suspended for a period of one year, followed by a one year period of probation upon such conditions as the Florida Real Estate Commission shall reasonably impose. DONE and ENTERED this 21st day of August, 1991, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 21st day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 15, 16, 17, 18, 19, 20. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, Respondents' proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42. Rejected as irrelevant: 9, 13, 40. COPIES FURNISHED: Janine B. Myrick, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kelli Hanley Crabb, Esquire Post Office Box 4110 St. Petersburg, Florida 33743 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Jack L. McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Respondent, Naomi N. Radcliff, is licensed in Florida as a real estate broker (license No. 0369173) and has been at all times material to the Administrative Complaint. On December 2, 1987, Respondent submitted a Request for License or Change of Status form which sought to cancel the license. Thereafter, the Department reclassified Respondent as an inactive broker. In July, 1986, Randy Mangold and his wife entered into a contract to purchase real property located in Indian River Estates. Naomi Radcliff was the real estate agent who handled the transaction on behalf of the Mangolds. The Mangolds' contract provided for occupancy prior to closing with a security deposit for the rental in the amount of $1500. This amount was paid to Respondent. At closing the $1500 security deposit was to be applied to the buyers' closing costs. The Mangolds rented the home for a year and attempted to obtain financing for the purchase. When their mortgage application was denied, they elected to vacate the property. After they vacated the property, the Mangolds requested the return of the $1500 security deposit. Demands were made on Respondent who refused to return the deposit despite the fact that the Mangolds had fully paid all rents owed and had left the house in good condition. Finally, the Mangolds sued Respondent in the St. Lucie County Court and obtained a judgment for the $1500 security deposit. Respondent has not satisfied the judgment. At one point Respondent did give the Mangolds a check for $500 which was returned due to insufficient funds in the account. In December, 1986, Respondent acted as a rental agent for Walter Zielinski, an out-of-state owner. Mr. Zielinski owned two houses in Port St. Lucie, one of which was located at 941 Fenway. In early December, 1986, Respondent advised Mr. Zielinski that the tenants had left the home at 941 Fenway and that the unit was in fairly good condition. Sometime later in the month, Mr. Zielinski discovered the house was empty but that it had been damaged. There were holes in the wall in the utility room approximately two feet in diameter. The flooring in the utility room and kitchen was ripped up. There was a hole in the wall in the master bedroom. More important to Mr. Zielinski, the house was unsecured because the garage door latch was broken and the house was accessible through the garage. After discovering the unit was at risk for additional damage, Mr. Zielinski attempted to contact Respondent but numerous calls to Respondent, her place of work, and to a former employer proved to be unsuccessful. Finally, Mr. Zielinski obtained another real estate agent to represent the 941 Fenway home. The new agent, Cathy Prince, attempted to obtain from Respondent the keys, the security deposit, and the rent money belonging to Mr. Zielinski. In January, 1987, Mr. Zielinski came to Florida from Illinois to take care of the rental problems. Mr. Zielinski incurred expenses totalling $876.74 to repair the damages to 941 Fenway. Also, Mr. Zielinski wanted to collect the rents owed by Respondent for his other property and have the security deposit for the second property transferred to the new agent. Respondent issued a personal check for the security deposit which was returned for insufficient funds. A second personal check paid to Mr. Zielinski for the rent owed was accepted and cleared. According to Mr. Zielinski, Respondent did not maintain an office where he could find her during the latter part of December, 1986 through January, 1987. In March, 1987, the security deposit for Mr. Zielinski's second rental was paid to the new agent. The check was issued by Respondent's mother. Respondent never personally returned any calls to the new agent. In June, 1986, Alyssa and Jeffrey Maloy entered into a contract to purchase a house. Respondent handled the real estate transaction for the Maloys. The closing was to be December 9 or 10, 1986. Respondent held monies that were required to complete the Maloy closing. Respondent attended the closing but the check tendered to the closing agent, Chelsea Title, was drawn on an trust account which had been closed. The closing agent discovered the problem and requested sufficient funds. Respondent left the closing and returned some hours later with new checks drawn on another account. After checking with the bank, it was again discovered that the funds in the account were insufficient to cover the amount needed for closing. Finally, some days later the Respondent's brother delivered a certified check to cover the amount needed to close the Maloy transaction.
Recommendation Based on 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 suspending the Respondent's real estate broker's license for a period of five years. DONE and RECOMMENDED this 12th day of July, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 12th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4631 Rulings on Petitioner's proposed findings of fact: Paragraphs 1-3 are accepted. With regard to paragraph 4, with the exception of the date referenced (November, 1986) the paragraph is accepted. Paragraph 5 is rejected a hearsay evidence unsupported by direct evidence of any source. The first sentence of paragraph 6 is accepted. The second sentence calls for speculation based on facts not in the record and is, therefore, rejected. Paragraphs 7-11 are accepted. With regard to paragraph 12, the first four sentences are accepted; with regard to the balance, the Respondent's brother did deliver funds to allow the Maloy transaction to close however the source of the funds is speculation based upon hearsay unsupported by the record. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Darlene F. Keller, Executive Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Naomi N. Radcliff 1420 Seaway Drive Fort Pierce, Florida 33482
The Issue Whether Respondents' real estate licenses should be disciplined upon alleged violations of Sections 475.25(1)(b), (d) and (k) as set forth in the Administrative Complaints.
Findings Of Fact Finding of Fact Paragraphs 1-3, above, are reiterated, adopted and incorporated here. Prior to July 1984, Respondents employed Sarah Sampson as a real estate sales person. Upon leaving the employ of Respondent, Mrs. Sampson had earned commissions in the LeMay to Gordon and the DiChristina to McHugh real estate transactions and on a lease agreement involving a Richard Dietz, totalling approximately $2,700.00. Prior to July, 1984, Respondents had received the proceeds from the transactions referred to in Paragraph 12 supra but failed to pay over to Mrs. Sampson her share of the commissions. Subsequent to Mrs. Sampson's departure from the Respondents' employ, Mrs. Sampson made demands upon the Respondents for the commissions. Payment was not forthcoming. On June 11, 1984, Mrs. Sampson loaned to Respondent Bostad, on a personal basis, $5,000.00. Respondent Bostad promised in writing to repay Mrs. Sampson with interest in one week's time. Respondent Bostad failed to repay in said time period. Subsequent to June 18, 1984 Mrs. Sampson made demands upon Respondent Bostad for the return of the $5,000.00 personal loan, which Respondent Bostad again promised in writing to repay by a date certain. Respondent Bostad again failed to pay the $5,000.00 personal loan. Thereafter after Respondent repeatedly failed to account for or deliver the earned commissions to Mrs. Sampson and after Respondent Bostad repeatedly failed to repay the personal loan of $5,000.00, Mrs. Sampson filed suit. A November 27, 1984 Amended Judgment in that cause was entered against Respondents Realty One of Broward Inc. and Robert G. Bostad for the commissions owed and against Respondent Bostad personally for the personal loan. This judgment has not been satisfied as of the date of formal DOAH hearing held April 10, 1985. Respondent Bostad admits to owing Mrs. Sampson the commissions as to LeMay and DeChristina and as to the $5,000.00 personal loan. Respondent Bostad testified to extraordinary attempts to collect the liquid capital to pay these debts but to date of hearing had not done so. He emphasized that all his troubles stem from being a good salesman but a poor bookkeeper and from financial problems arising from his divorce. Each of the agency investigators involved in the Petitioner's audit of Respondents' accounts noted that Respondents' failure to carry balances forward in the escrow account checkbook could be misleading as to the amount of monies actually in the escrow account at any given time. Respondent emphasized that he has not tried to leave the community but wishes to make good his debts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, recommended that: Petitioner enter a final order suspending Respondents' licenses for two years and ordering Respondents to pay an administrative fine of $2,500.00. However, if Respondents establish that the nine transactions pending on June 21, 1984 have successfully closed without loss and pay Mrs. Sampson the commissions owed her then Respondents' licenses should not be suspended but in addition to payment of the $2500.00 fine, Respondents' licenses should not be suspended but should be monitored in a probationary status for five years. DONE and ORDERED this 19th day of July, 1985 in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1985.
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
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission enter its final order directing Capitol Rental and Realty, Inc. and Lawrence D. Van Ore cease and desist from using non-registrants as real estate salesmen and further from failing to use the full name of the registrant and the term "Broker" or "Realtor" within its classified advertisements. The Hearing Officer further recommends that the registration of the registrant be suspended until the corporate broker and associate broker Lawrence D. Van Ore have complied with said order of the Commission. DONE and ORDERED this 26th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Gough, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Don Scarlet, Esquire 801 Magnolia - Suite 317 Orlando, Florida 32803
