Findings Of Fact The Respondent, Joyce Chandler, prior to February 2, 1982, was a real estate salesman employed by Frank Ambrose, a real estate broker. On February 2, 1982, Chandler became licensed as a real estate broker with the State of Florida, and holds license number 0348072. On February 8, 1982, the Respondent drafted an offer to purchase for herself property located at 811 Perrine Avenue in Miami, which belonged to Dr. Harry Moskowitz. The purchase price of the offer was $140,000. The Respondent took the offer to Carol Rebhan, the listing salesman of the property who was employed by Tauber-Manon Red Carpet Realty. The offer provided that an earnest money deposit of $100 would be placed in the escrow account of Roberta Fox, the Respondent's attorney, with an additional $5,000 to be deposited in Roberta Fox's escrow account within three working days of acceptance of the offer. The contract also called for a ten percent brokerage fee to be divided equally between the Respondent and Tauber-non Red Carpet Realty. Carol Rebhan and the Respondent presented the offer to Eugene Lemlich, attorney for the seller Dr. Harry Moskowitz. After contacting Dr. Moskowitz in Texas, Lemlich accepted the offer on his behalf. Three working days after the offer was accepted, Carol Rebhan called Roberta Fox's office repeatedly to determine whether the additional $5,000 deposit had been placed in escrow. Fox's office advised Rebhan that they did not have the $5,000 deposit. Rebhan confronted the Respondent with this information, and the Respondent stated that she was going to deposit the monies with Frank Ambrose at Landmark Title. The next day, Rebhan contacted Landmark Title and was informed that they did not have the deposit in escrow. On or about the 14th of February, 1982, Rebhan contacted Frank Ambrose personally and inquired about the $5,000 deposit. Ambrose told Rebhan that Landmark Title was in possession of the deposit. This was not true. Rebhan requested that Ambrose send her an escrow letter acknowledging possession of the $5,000 deposit. By letter dated February 18, 1982, Ambrose informed Rebhan that Landmark Title was in possession of the $5,000 deposit. On February 18, 1982, the Respondent gave Ambrose a $5,000 check payable to Landmark Title Company. The check was for the additional deposit on the Moskowitz property and was post-dated to February 28, 1982. The check was deposited on February 19, 1982. On February 25, 1982, Ambrose was informed that there were insufficient funds in the Respondent's account to pay the check. Ambrose notified the Respondent that the check had been returned unpaid. She advised him that she was expecting some funds, and would make the check good within a few days. Ambrose took no action to notify the parties at this time. In the first week of March, 1982, when Ambrose had still not received funds from the Respondent to cover the check, he contacted Carol Rebhan and informed her of the series of events which had occurred with regard to the deposit check. When Rebhan subsequently contacted the Respondent and told her that her $5,000 check had bounced, the Respondent seemed shocked at the news. The Respondent has not made good the check returned to Landmark Title Company, nor has she placed the $5,000 deposit in escrow in accordance with the terms of the contract with Dr. Moskowitz. Throughout the entire transaction, the Respondent misled the parties involved with regard to the location and existence of the earnest money deposit, she represented that she would replace the dishonored check or make it-good but has not done so, and she has thereby breached her contract to purchase the subject property from Dr. Moskowitz. The Respondent contends that she informed all parties that the $5,000 check would be post-dated, but there is not sufficient evidence to support this assertion. Nevertheless, the post-dated check given by the Respondent has never been made good, so the Respondent's contention that she advised the parties at the outset that the $5,000 check would be post-dated, is irrelevant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the license of the Respondent, Joyce A. Chandler, be suspended for a period of one year. THIS RECOMMENDED ORDER ENTERED this 9th day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Joyce A. Chandler 11231 S.W. 201st Street Miami, Florida 33189 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact 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, Richard A. Dunham, Jr., is now and was at all times material to the complaint a licensed real estate salesman in the State of Florida having been issued License No. 0130830 in accordance with Chapter 475, Florida Statutes. The last license issued was as a salesman, c/o Merrill Lynch Realty, operating partnership L.P. LTD., 1234 West Palm Avenue, Sarasota, Florida 34236. Respondent was the sole stockholder of Guaranteed Leasing, Inc., a corporation that was not licensed with the Florida Real Estate Commission. Respondent formed Guaranteed Leasing, Inc., for the purpose of engaging in real estate ventures. Respondent was also the sole stockholder in other corporations established for the same purpose. On August 21, 1986, Guaranteed Leasing, Inc., entered into a lease agreement with Gail Walker whereby Guaranteed Leasing, Inc., leased a furnished townhouse for two years at $500 per month. Thereafter, respondent contacted Elizabeth Mitchell, a business associate and friend of respondent, to obtain her help in subleasing the townhouse. Respondent agreed to let Ms. Mitchell live in the townhouse in return for her maintaining the property and showing it to prospective sublessees. Respondent also agreed to pay Ms. Mitchell $200 if she subleased the property. On September 22, 1986, Kathryn E. Kelly entered into a written lease agreement with Guaranteed Leasing, Inc., to lease the townhouse for $600 per month. Ms. Kelly also agreed to pay a security deposit of $500. Ms. Kelly gave Elizabeth Mitchell a bank check, written to Guaranteed Leasing, Inc., in the amount of $500 for the security deposit. Ms. Mitchell thereafter delivered Ms. Kelly's check of $500 to respondent who deposited the check into the general corporate account of Guaranteed Leasing, Inc. Prior to signing the lease, Ms. Kelly met respondent. She was under the impression that respondent owned Guaranteed Leasing and that Ms. Mitchell worked for him. In December of 1986, Ms. Kelly vacated the townhouse premises. She had paid all appropriate rental payments. Ms. Kelly asked respondent, in person, to return her security deposit. Neither respondent nor Guaranteed Leasing, Inc., returned the security deposit. Neither respondent nor Guaranteed Leasing, Inc., gave notice of intent to impose a claim for damages upon the security deposit. After repeatedly demanding return of the security deposit, which demands were ignored by respondent, Ms. Kelly obtained counsel and filed a lawsuit against respondent, Guaranteed Leasing, Inc., and Ms. Mitchell. On July 1, 1987, a default judgment was entered against respondent, Elizabeth Mitchell and Guaranteed Leasing, Inc., jointly and severally in the amount of $544, plus costs and attorney's fees, for a total judgment of $785. The judgment has not been satisfied. Guaranteed Leasing, Inc., is no longer in existence. Respondent was the sole stockholder of Guaranteed Leasing, Inc., and was an officer of the corporation. Guaranteed Leasing, Inc., had no salaried employees. The only business activity of Guaranteed Leasing, Inc., was the transaction involved in this case. Respondent was in total control of the corporation's activities and was responsible for its actions. Indeed, as perceived by both Ms. Kelly and Mrs. Mitchell, Guaranteed Leasing, Inc., was, in essence, the respondent. Guaranteed Leasing, Inc., was merely the instrumentality through which respondent conducted this business transaction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that respondent committed those acts set forth in Subsections 475.25(1)(b) and (d), Florida Statutes, suspending respondent's license for a period of three months, and imposing an administrative fine of $1,000. DONE AND ENTERED this 17th day of June, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 17th day of June, 1988. APPENDIX Petitioner's proposed findings: 1-2. Accepted. 3. Accepted, except as to finding that Mitchell was an "employee" of respondent; however, it is clear that Mitchell was acting as respondent's agent in her dealings with Ms. Kelly. 4-9. Accepted generally. Respondent's proposed findings: 1-8. Accepted generally except as to proposed finding that Mitchell was an "employee" of Guaranteed Leasing, Inc. Mitchell was acting as respondent's agent in her dealings with Ms. Kelly. 9. Rejected as irrelevant. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Robert P. Rosin, Esquire ROSIN & DAVIS 1900 Main Street Suite 210 Sarasota, Florida 34236 Darlene F. Keller Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether the real estate license of Respondent, Deborah M. Segert (Segert), should be revoked or otherwise penalized based on the acts alleged in the Amended Administrative Complaint.
Findings Of Fact Segert is now and was at all times material to this case a licensed real estate salesperson in the State of Florida having been issued license number 0527365. Her last license issued was as a salesperson, % New Horizons Realty of Central Florida, Inc., 1411 Kass Circle F, Spring Hill, Florida 34606. On July 5, 1990, Ivette Summers entered a lease agreement to rent property at 10567 Chalmer Street, Spring Hill, Florida, from Consumer Aid Realty, Inc., (hereafter CAR) for $450.00 per month. The Summers-CAR lease was negotiated by Segert on behalf of CAR. Segert suggested to Summers that the monthly rent be paid in cash. Summers followed Segert's suggestion and made the monthly rent payments in cash to Segert. Segert gave Summers receipts for the cash rent payments. Summers paid a pro rata share of the monthly rent for August, 1990, and the security deposit with a money order in the amount of $762.04. The $762.04 was an overpayment and Summers received a $100.00 refund check #1214 dated July 31, 1990, drawn on the account of Consumer Aid Realty, Inc. Property Management and signed by Doris J. Ross. On January 26, 1992, Stanley and Sandra Varvel entered into a lease agreement to rent property at 10565 Chalmer Street from CAR for $485.00 per month. Segert negotiated the lease on behalf of the CAR and at Segert's instruction the Varvels paid the rent to her in cash. Stanley Varvel received receipts from Segert for the cash rent payments. On September 6, 1991, Segert gave Sandra Varvel a receipt for rent paid in cash for the month of September 1991. The Varvel lease agreement was altered to show a start date of October 1, 1992, and a term of six months. The Varvels were not aware of and did not authorize the changes in the lease. The Varvels moved into the property in February 1991. On May 9, 1991, Scott Poquette and Sue Forcino entered a lease agreement to rent property at 10573 Chalmer Street, Spring Hill, from CAR for $450.00 per month. Segert represented CAR in the lease agreement with Poquette and Forcino and collected the rent. On July 15, 1991, Poquette gave Segert check #101 payable to CAR for $450.00 for rent for the month of July 1991. Poquette and Forcino gave Segert cash for the security deposit and first month's rent for the property at 10573 Chalmer Street and paid rent in cash to Segert for at least two other months. Segert gave Poquette and/or Forcino receipts for rent paid in cash for August and September 1991. John Rorabacher was registered with the Department of Professional Regulation, Division of Real Estate, as a qualifying broker for CAR from May, 1990, until November, 1991. Doris J. Ross was registered with the Department of Professional Regulation, Division of Real Estate, as a qualifying broker for CAR from its inception until approximately May, 1990. Doris J. Ross' signature appears on the refund check, #1214 dated July 31, 1990, given to Ivette Summers and drawn on the account entitled Consumer Aid Realty Inc. Property Management. James K. Foster was registered with the Department of Professional Regulation, Division of Real Estate, as a qualifying broker for CAR from October 15, 1990, until August 7, 1991. Adele Poston was registered with the Department of Professional Regulation, Division of Real Estate, as a qualifying broker for CAR from sometime in August, 1991, until sometime in October, 1991. During the time Rorabacher, Ross, Foster and Poston were brokers for CAR, Segert was employed as a real estate salesperson for CAR. Segert never gave Rorabacher, Ross, Foster, or Poston cash for rent payments for properties managed by CAR. Winston Griffith was the owner of Consumer Aid Realty, Inc. Griffith is not and has never been a real estate licensee. Segert was employed by CAR as a real estate salesperson from January, 1990, until September, 1991. Jesse Newberry, owner of the rental properties managed by CAR, requested an audit of the records pertaining to the properties. The date for the audit was set for September 18, 1991, and Segert was advised by Griffith to be prepared to review the records. Segert immediately resigned her employment with CAR and took the property management records and other documents belonging to CAR. On September 16, 1991, Griffith contacted Attorney Richard Padgett for advice regarding Segert's resignation and taking of corporate records. Padgett sent a letter to Segert requesting her attendance at the September 18, 1991, audit with Jesse Newberry and production of the records. Segert did not appear at the audit and as of the date of the formal hearing has not returned the corporate records nor delivered to Griffith any of the rental funds she received from tenants. Marjorie May is employed as an investigator and auditor with the Department of Professional Regulation. May investigated the complaint filed by Griffith against Segert. Since Segert had taken the property management records, May was unable to conduct a complete audit. With the assistance of Griffith's accountant and reconstructed records, May determined that Segert had taken approximately $20,177.03 in rental funds and security deposits.
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, through the Florida Real Estate Commission, enter a Final Order revoking the real estate license issued to Deborah M. Segert. DONE and ENTERED this 4th day of November, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 4th day of November, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-1989 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Division of Real Estate Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-20(1-19); 21(24); 22(25); 23(20); 24(21); 25(24); 26(25); 27(22); 28(24); 29(25); and 30-42(23-35). Proposed finding of fact 1 is a conclusion of law. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Janine B. Myrick, Senior Attorney DPR, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Deborah M. Segert 7290 Radcliff Street Spring Hill, FL 34606
Findings Of Fact Based on the admissions of the Respondent, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: Respondent Larry L. Toney is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0089521 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Larry L. Toney Realty, Inc., 4629 Moncrief Road West, Jacksonville, Florida 32209. At the time of the events described below, Ernest W. Mabrey was the owner of a house located at 3926 Perry Street, Jacksonville, Florida. On or about March 3, 1986, the Respondent met with Josephine Watkins, who is the daughter of Ernest W. Mabrey, at her home in Lake Butler, Florida, and advised her and Mr. Mabrey that the property described above, then owned by Mr. Mabrey, was in foreclosure. Ernestine Byrd, another daughter of Mr. Mabrey, was also present. An action to foreclose the mortgage on the subject property had in fact been filed at the time the Respondent met with Ernest W. Mabrey and members of his family. The Respondent requested that Ernest W. Mabrey sign a warranty deed to evidence the fact that he, Ernest W. Mabrey, had no interest in saving the subject property from the then pending mortgage foreclosure action. Josephine Watkins and Ernestine Byrd discussed the proposed transaction before any papers were signed. Ernest W. Mabrey did not object to transferring the subject property. On or about March 3, 1986, Ernest W. Mabrey, as grantor, signed a warranty deed which conveyed the subject property to Emory Robinson, Jr. Mr. Mabrey willingly signed his name to the warranty deed with the understanding that he was releasing his interest in the subject property because he was sick and neither he nor his daughters had the funds necessary to redeem the property. Josephine Watkins helped her father, Mr. Mabrey, write his name on the warranty deed and Ernestine Byrd signed the warranty deed as a witness to her father's signature. At the time the warranty deed was signed, no payments had been made on the mortgage for approximately five years. The Respondent did not promise to pay any money to Mr. Mabrey or his daughters in connection with the transfer of the subject property, nor did they expect to receive any money. The Respondent did not forge any signatures on the warranty deed described above. All of the signatures on that warranty deed are genuine. The grantee in the subject transaction, Emory Robinson, Jr., paid the holder of the first mortgage the sum of $6,787.11 in order to bring the payments to a current status and he assumed the mortgage. The mortgage foreclosure action was then voluntarily dismissed.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of May, 1988, in Tallahassee, Leon County, Florida. MICHAEL M. 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 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on all proposed findings of fact submitted by the parties. Findings Proposed by Petitioner: Paragraphs 1, 2 and 3: Accepted. Paragraph 4: First two lines accepted. Last line rejected as not supported by competent substantial evidence. Paragraph 5: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is rejected as constituting subordinate and unnecessary details. Paragraph 6: Rejected as contrary to the greater weight of the evidence. Paragraph 7: Accepted in substance, with additional findings for clarity and completeness. Paragraph 8: It is accepted that the house was conveyed to Mr. Robinson. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence or as not supported by competent substantial evidence. Findings Proposed by Respondent: All of the findings proposed by the Respondent have been accepted in whole or in substance, except as specifically set forth below. In making my findings of fact, I have omitted a number of unnecessary details proposed by the Respondent. Paragraph 8: Rejected as constituting subordinate and unnecessary details. Paragraph 18: Rejected as constituting subordinate and unnecessary details. Paragraph 19: Rejected as subordinate and unnecessary details and as legal argument. COPIES FURNISHED: JAMES H. GILLIS, ESQUIRE DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 HENRY E. DAVIS, ESQUIRE ROBERTS & DAVIS 816 BROAD STREET JACKSONVILLE, FLORIDA 32202 DARLENE F. KELLER, EXECUTIVE DIRECTOR DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
Findings Of Fact Respondent Shankar S. Agarwal is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0312860. The last license issued was as a broker. Respondent Super Realty, Inc., is now and was at all times material hereto a licensed real estate corporation in the State of Florida having been issued license number 0231630. The last license issued was as a broker located in Hollywood, Florida. At all times material hereto, Respondent Shankar S. Agarwal was licensed and operating as a qualifying broker and officer for Respondent Super Realty, Inc. Respondents advertised for sale by newspaper advertisement a VA repossessed property being a four unit apartment building in Fort Lauderdale, Florida. In April, 1985, Warren and Judith Fieldhouse responded to Respondents' ad, and Respondent Agarwal arranged to meet the Fieldhouses at the property. At the property, the Fieldhouses informed Respondents that they wished to purchase a property as an investment and required that any property purchased by them result in income to them as opposed to resulting in a loss for them. Respondent Agarwal specifically represented to the Fieldhouses that the rental character of the neighborhood had been assessed by the Respondents, that Respondents were qualified to appraise the rental character, and that each unit could be rented for $300 or more per month. Respondent Agarwal further represented that the rent for the property would therefore exceed its expenses. The Fieldhouses decided that they wished to purchase the property based upon Respondents' representations. Respondent Agarwal required the Fieldhouses to give him a check for $1,000 a while still at the property before he would return with them to the office of Super Realty, Inc., to draft a purchase contract. Respondent Agarwal and the Fieldhouses went to Super Realty, Inc., where a purchase contract was drafted by Respondent Agarwal and signed by the Fieldhouses. Respondent Agarwal refused to give to the Fieldhouses a copy of that contract. Respondent Agarwal further advised the Fieldhouses that they were to obtain the required liability insurance on the property from his insurance agency and that they were not to use their own insurance agency. The Fieldhouses refused to comply with Agarwal's direction to them. Changes were subsequently made by Respondents to the Fieldhouses' purchase contract. Although those changes were approved telephonically by the Fieldhouses, Respondents never obtained the Fieldhouses signatures approving the changes in the contract. A closing was scheduled by Respondents at the office of Super Realty, Inc., on May 22, 1985. The Fieldhouses inspected the property just before the closing and found that the property's "as is" condition on the day of closing was worse than its "as is" condition on the day that they first saw it and entered into the contract for the purchase and sale of the property. Appliances were missing, and damage was done to the structure. The Fieldhouses objected to the condition of the property on the date of closing. Yet, the closing began. Respondent Agarwal began handing the Fieldhouses individual documents to sign. When he handed them a required financial disclosure statement, the Fieldhouses realized that the mortgage plus insurance and taxes payments would exceed the rental income which Respondents had represented could be projected from the units, that the amount of payments and other representations initially made by the Respondents were not incorporated into the closing documents, and the rental income for the property would not exceed the property's monthly expenses. The Fieldhouses refused to continue with the closing. They demanded copies of the documents that they had signed, but Respondents refused to give them copies of those documents. They demanded a refund from Respondents of their $1,000 deposit, but Respondents refused to refund their money to them. Although the Fieldhouses had signed a note and mortgage on the property before they refused to continue forward with the closing, they gave Respondents no monies toward the purchase of the property to increase the $1,000 earnest money deposit to the required down payment for the property. Respondents knew that the Fieldhouses did not pay the required cash to close on the property, the additional consideration required under the contracts. After the closing, the Fieldhouses made additional demands on Respondent for the return of their $1,000. Respondents refused to return that money to them and further refused to discuss the matter with them further. Respondents submitted the Fieldhouse closing documents to the Veterans Administration claiming a sales commission due to the Respondents in the amount of $5,740, even though Respondents knew that the sales transaction had never closed. Since the Veterans Administration had experienced difficulties with Respondents' complying with their rules and regulations on previous occasions, the VA took the position that the Respondents were not entitled to a commission since no sale had taken place and that the Respondents should refund to the Fieldhouses their $1,000. Respondents sued the Veterans Administration for a sales commission. At the time that Respondents sued for a commission, they knew that they were entitled to no commission since there was no sale. When the Veterans Administration filed an Answer to Respondents' Complaint indicating that it intended to fully defend Respondents' false claim, Respondents voluntarily dismissed their litigation against the Veterans Administration. The VA now has possession of the Fieldhouses' $1,000 deposit which it intends to return to the Fieldhouses. Although Mr. Fieldhouse was a licensed real estate salesman during the time period material hereto, he had not actively worked as a real estate salesman. Therefore, the Fieldhouses relied upon the Respondents as licensees to responsively perform the sales transaction and further relied upon Respondents' representations regarding the property's income and expenses. Respondents never advised the Florida Real Estate Commission that demands had been made for the return of the $1,000 which Respondents held in escrow until such time as they voluntarily forwarded the money to the Veterans Administration despite the Fieldhouses' demands for its return to them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered dismissing Counts V and VI of the Administrative Complaint, finding Respondents guilty of the remaining allegations in the Administrative Complaint, and revoking Respondents' real estate broker licenses. DONE and RECOMMENDED this 21st day of April 1987, in Tallahassee, Florida. LINDA M. RIGOT 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 21st day of April, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Super Realty, Inc. c/o Shankar S. Agarwal 6912 Stirling Road Hollywood, Florida 33024 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact John M. Stroud is a registered real estate saleman holding registration number 0172065 issued the Florida Real Estate Commission. On December 17, 1976, John M. Stroud was arrested for burglary and committed to the custody of the sheriff of Brevard County for the offense of burglary. On December 15, 1976, Stroud had his completed application notarized by R. Jack Simpson. Stroud's application was initially received by the Florida Real Estate Commission on January 5, 1977, and was returned to Stroud because he had not enclosed the fee required. It was resubmitted with the fee and received by the Florida Real Estate Commission on January 14, 1977.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the registration of John M. Stroud be revoked. DONE and ENTERED this 9th day of December, 1977 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1977. COPIES FURNISHED: David T. Young, Esquire 1197 So. U.S. Highway 1 P.O. Box 563 Rockledge, Florida 32955 Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact The Respondent, Leonard Fernandez, is a licensed real estate salesman, holding license number 0145203. In July and August of 1979, the Respondent was employed as a mortgage solicitor for Southeast Mortgage Company in Broward County, Florida. Alan Edwards was the Respondent's supervisor during this time period. In July, 1979, the Respondent advised Alan Edwards that he was going to purchase property, and requested that Mr. Edwards loan him money for a short period of time. Mr. Edwards loaned the Respondent $4,000 under a verbal agreement that the Respondent would repay the loan within 60 days. When the Respondent failed to repay this loan as agreed, Mr. Edwards had the Respondent sign a promissory note in the amount of $4,000. In an attempt to repay a portion of this note, the Respondent gave Mr. Edwards a check in the amount of $1,800 on or about August 29, 1979. Mr. Edwards presented the check for payment, but it was returned unpaid because the Respondent had stopped payment on it. When Mr. Edwards contacted the Respondent about the check, the Respondent stated that he had expected some funds from a relative, and when he did not receive this money, he stopped payment on the check. The Respondent told Mr. Edwards that he would give him a cashier's check to replace the $1,800 check that had been returned unpaid, but the Respondent never provided the cashier's check. Instead, the Respondent, in September, 1979, gave Mr. Edwards several postdated checks drawn on account number 002312352 at Southeast Bank of Broward County. The purpose of these checks was to repay, the $1,800, after which the Respondent was to pay the remaining debt due under the note. In November, 1979, Mr. Edwards presented the first of the postdated checks, dated November 15, 1979, to Southeast Bank for payment, but was notified that the Respondent's account upon which all the postdated checks had been issued, was closed. When the bank failed to honor this first check, Mr. Edwards sent a notice of dishonored check to the Respondent by certified mail. The return receipt indicates that the Respondent received this notice. In December, 1979, and in January and February of 1980, Mr. Edwards presented to Southeast Bank the postdated checks that Respondent had given him for these months. On each occasion the bank informed Mr. Edwards that the Respondent's account was closed. Mr. Edwards sent the Respondent notices of dishonor of these checks, which the Respondent received. Mr. Edwards never received any payment of the debt owed by the Respondent. On January 7, 1980, in Dade County Circuit Court, the Respondent pled nolo contendere to two counts of conspiracy to sell, deliver or possess with intent to sell or deliver, cocaine, and was found guilty, placed on one year probation, and ordered to pay $2,400 in restitution. On February 29, 1980, the court withheld adjudication on this charge.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0145203 held by the Respondent, Leonard Fernandez, be revoked. DONE and RECOMMENDED this 9th day of June, 1983 in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Mr. Leonard Fernandez 10024 S.W. 2nd Terrace Miami, Florida 33174 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Dir. Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Respondent, Eduardo A. Cardounel (Cardounel), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license No. 0013037. Cardounel was the owner and sole qualifying broker for Respondent, Alexena Realty, Inc., a Florida corporation, registered as a real estate broker, license No. 0000851. In 1981 the Hamptons Development Corporation of Dade had under construction a condominium development in North Miami Beach, Florida, to be known as the Hamptons. In August 1981 Cardounel introduced Harold and Amparo Carvajal and Ulpiano and Maria Barona to the Hamptons project, and represented that he was the broker for the development and that these condominiums could be a good investment for them. Respondents concede they acted as agents for the Carvajals and Baronas at all times material to these proceedings. The Carvajals and Baronas each decided to purchase two units at the Hamptons. To guarantee the reservation of the units they had selected, they were required to place a small deposit and by December 31, 1981, have on deposit with the Hamptons a total of 10 percent of the purchase price of each unit. Dr. Carvajal left $4,000 with Cardounel, and Mr. Barona left $7,500, for the reservations deposits. The Carvajals and Baronas are residents of Columbia, South America. American dollars are not readily available, and the transfer of funds out of that country is not an easy task. Accordingly, the Carvajals and Baronas had to make arrangements to ensure that any funds which might be required to effect their purchases were available in the United States as those sums became due. The manner in which monies were delivered to Cardounel was, therefore, quite natural and necessary under the circumstances. On December 31, 1981, in Columbia, South America, Cardounel personally delivered four purchase and sale agreements for the Hamptons units to the Carvajals and Baronas for execution. The Carvajals executed agreements to purchase Units 905 and 1503, for $197,000 and $216,000, respectively. The Baronas executed agreements to purchase Units 605 and 1405 for $194,000 and $201,000, respectively. These agreements provided that the purchase price be paid as follows: Ten percent upon execution of the agreement, An additional 5 percent when the slab was poured on the floor on which the unit lies, An additional 5 percent when the slab was poured on the main roof, and The balance at time of closing. Prior to execution of the agreements, the Carvajals and Baronas had made arrangements to have those monies available in the United States. On November 9, 1981, Dr. Carvajal delivered an additional $37,300 to Cardounel for his initial 10 percent deposit. These monies, together with the $4,000 already on deposit, totaled the 10 percent deposit due for Units 905 and 1503. In September 1981 Mr. Barona delivered an additional $30,000 to Cardounel toward the initial 10 percent deposit that would be due on his units. Mr. Barona instructed Cardounel to place these funds in a "terminal deposit," a certificate of deposit, earning interest until the monies were due. 1/ On December 31, 1981, upon execution of the agreements, Mr. Barona delivered an additional $2,000 to Cardounel, which sum, together with the prior sums, totaled the 10 percent deposits due on his units. The record is unclear as to when the 10 percent deposit monies the Carvajals and Baronas had entrusted to Cardounel were paid to the Hamptons. They were paid, however. Initially the parties anticipated that the first additional 5 percent deposit would be due the latter part of 1982, and the second additional deposit in June 1983. Accordingly, in April 1982, Dr. Carvajal delivered $50,000 to Cardounel with instructions that the monies be invested in an interest-bearing account pending payment of the additional 5 percent deposits, and with the correspondent understanding that these monies would be available to pay the deposits as they came due. Mr. Barona transferred $30,000 to Cardounel, $10,000 in September 1982 and $20,000 in October 1982, to be applied toward the 5 percent additional deposits as they became due. Mr. Barona, consistent with his prior instructions, directed that these monies be held in a certificate of deposit, earning interest until the additional 5 percent deposits became due. By letters dated February 24, 1983, and March 2, 1983, to Dr. Carvajal and Mr. Barona, respectively, Cardounel advised them that the 5 percent deposits had not been paid in December 1982 because the Hamptons was late in construction and it had refused to pay interest on any deposits. In his letter to Mr. Barona, Cardounel advised him that the 5 percent deposit on Unit 605 would be due the end of March and on Unit 1405 the middle of April. In his letter to Dr. Carvajal, Cardounel advised him that the 5 percent deposit on Unit 905 would be due approximately April 1, and on Unit 1503 approximately the middle of April. Subsequent to Cardounel's letters, the Hamptons inquired directly of Mr. Barona concerning his failure to make the additional deposits. By letter of March 20, 1983, Mr. Barona replied that the monies for these deposits had been delivered to Cardounel and authorized the Hamptons to secure the monies from Cardounel. Mr. Barona also instructed Cardounel to immediately deliver the deposits to the Hamptons. At the end of March 1983, Dr. Carvajal and Mr. Barona, having been informed by friends that there might be a "problem" with the purchase of the Hamptons units, traveled to South Florida to confer with Cardounel regarding the status of their agreements and their deposit monies. Their initial meeting occurred on Sunday, at which time Cardounel informed them that he could not get them the monies because the bank was closed. They arranged to meet at his office the next day. On the following day, Dr. Carvajal and Mr. Barona met with Cardounel, but no monies were tendered. Instead, Cardounel exhibited to Dr. Carvajal two original promissory notes purportedly executed by a corporation known as Marfred International Investment, Inc. The first promissory note, dated April 17, 1982, in the amount of $50,000, was for a term of six months, and was represented by Cardounel to be an investment of the $50,000 Dr. Carvajal had entrusted to him. This note was purportedly secured by real property of a value of $120,000. The second promissory note exhibited to Dr. Carvajal, and payable to his order, was an unsecured note dated January 18, 1983, for a term of six months, in the sum of $36,000. This note, purportedly a reinvestment of the proceeds of the first note, did correctly reflect the balance that was due Carvajal, since $14,000 had, with his consent, been previously used for other purposes. This was, however, the first Dr. Carvajal had seen or heard of the January 1983 note. At the sane meeting, Cardounel exhibited four original unsecured promissory notes to Mr. Barona. These notes were not models of draftsmanship. They variously described the payor as Florida Investors Const. Co., Inc., and Florida Investors Const. Co., Inc., and one even named Florida Investors Const. Co., Inc., as payer but was executed by Florida Investors Const. Co., Inc. The notes exhibited to Mr. Barona were as follows: A note dated January 27, 1983, for a term of six months, in the sum of $20,500, A note dated February 2, 1983, for a term of six months, in the sum of $10,250, A note dated October 1, 1983, for a term of 90 days, in the sum of $10,000, and A note dated October 16, 1983, for a term of 9 days, in the sum of $20,000 2/ Prior to this meeting, Mr. Barona had no knowledge of the promissory notes, nor that his monies had not been invested as he had instructed. Dr. Carvajal and Mr. Barona voiced objection to the fact that Cardounel had "invested" their money in the fashion he had, since the monies would not be available as they became due under their agreements with the Hamptons. Further, Cardounel had violated Mr. Barona's instructions to place the sums in a certificate of deposit. In "satisfaction" of the notes, Cardounel issued four postdated checks, payable to Young, Stern and Tannenbaum-- escrow agents for the Hamptons- -and drawn on the personal account of "Eduardo Cardounel or Ena Cardounel." Check No. 4082, in the sum of $20,650, and check No. 4083, in the sum of $19,750, each dated April 7, 1983, represented the amount of monies needed to make the first 5 percent deposits on the Carvajal and Barona units. Check No. 4087, dated July 18, 1983, in the sum of $18,050, and check No. 4088, dated August 2, 1983, in the sum of $12,845, were to be applied to the respective accounts of Carvajal and Barona towards their second 5 percent deposits. Dr. Carvajal and Mr. Barona tendered their respective checks to Young, Stern and Tannenbaum. Each of the checks was deposited on the due dates and each was dishonored and returned for insufficient funds. To date, despite demand, Cardounel has failed to deliver the monies due Dr. Carvajal or Mr. Barona. The events which transpired after Cardounel's receipt of the Carvajals' and Baronas' additional monies are suspect. Cardounel concedes that commencing in 1982 through 1984 his real e state business had not produced any income for him. He had been compelled to sublease space in his offices just to keep his office open, and even then was losing money. Notwithstanding this downturn in the real estate market, Cardounel "invested" the monies entrusted to him with two small development companies with whom he was intimately connected. The monies which Dr. Carvajal entrusted to Cardounel, in April 1982, were purportedly lent to Marfred International Investment, Inc. (Marfred), as evidenced by a secured promissory note dated April 17, 1982, and a renewal unsecured promissory note dated January 18, 1983. Marfred is a Panamanian corporation authorized to do business in Florida. According to Cardounel, Marfred was a real estate developer to whom he had sold property. Cardounel admitted he was the registered agent for Marfred, but denied he was ever an officer of that company. Further, Cardounel could not recall the names of the corporate officers. The records in the office of the Secretary of State, State of Florida, confirm that Cardounel was the registered agent for Marfred, that he filed every Annual Report for Marfred, and that he was a vice president of Marfred in 1983 and 1984. While the first promissory note executed by Marfred, April 17, 1982, purported to be secured by real property of a value of $120,000, the property was described only by lot and block number with no city, county, or state designated. No mortgage on the real property was executed or recorded in connection with this promissory note. Cardounel concedes that absent a mortgage, the promissory note was unsecured, and further testified that he had no idea as to the real value or actual location of the property in question. Cardounel had no explanation as to why the second promissory note, January 18, 1983, was unsecured. The $30,000 which Mr. Barona entrusted to Cardounel, between September and October 1982, was purportedly evidenced by unsecured promissory notes executed by Florida Investros Const. Co., Inc., Florida Investors Const. Co., Inc., or named as payer, Florida Investros Const. Co., Inc., but executed by Florida Investors Constr. Co., Inc. These notes were unconditionally guaranteed by Cardounel. Cardounel was the registered agent for Florida Investros Const. Co., Inc. Coincidentally, Cardounel testified that contemporaneously with his meeting with Dr. Carvajal and Mr. Barona in March 1983, he learned that both Marfred and Florida Investros Const. Co., Inc., were in trouble and there was serious doubt that they could repay the monies. Notwithstanding this "fact," Cardounel tendered to Dr. Carvajal and Mr. Barona his four postdated checks in "satisfaction" of the promissory notes. It is worthy of note that the six promissory notes Cardounel exhibited to Dr. Carvajal and Mr. Barona were all originals, which Cardounel had retained in his possession. Additionally, Cardounel, upon tender of his checks in "satisfaction" of the promissory notes, at no time requested or obtained an assignment of those notes but, rather, had them marked "paid."
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, Respondent was a licensed real estate broker in the State of Florida having been issued license number 0072124. On or about September 6, 1986, the Respondent as seller/owner and Kenneth and Alicia Pelczar as purchasers entered into an agreement for the sale and purchase of Lot 10, Bowden Acres Subdivision, located in Duval County, Florida for the total purchase price of $79,000. Upon execution of the agreement, the purchasers deposited the sum of $1,500.00 with the Respondent which was to be part of the down payment, provided the sale of the property was finalized. The check from the Pelczars was cashed by the Respondent on October 24, 1986. The agreement provided remedies to both the seller and the purchasers if either party defaulted. Under the agreement no commission was to be paid on the sale of the property. The Pelczars were aware that the Respondent owned the property and that they were dealing with her as the owner, not as a real estate broker. The deposit was not paid to Respondent as a real estate broker to be held in trust but was paid to Respondent as part of a down payment to be applied to the total purchase price, if the transaction closed, and subject to being retained as liquidated damages if the purchasers defaulted under the agreement. The Respondent suffered financial difficulties, and on November 19, 1986, the bank foreclosed on several parcels of property owned by the Respondent, including the property Respondent had under contract with the Pelczars. However, the bank gave Respondent written authority to go forward with the sale to the Pelczars. The reason for the Pelczars' refusal to close the transaction on November 14, 1986, is not clear but they refused and demanded the return of the deposit. Respondent retained the deposit under the default clause of the agreement, and has refused to return any portion.
Recommendation Based upon the Findings of Fact, Conclusions of Law the evidence in the record and the demeanor and candor of the witnesses, it is RECOMMENDED that the Commission enter a Final Order DISMISSING the Amended Administrative Complaint filed herein. Respectfully submitted and entered this 15th day of December, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 15th day of Decemeber, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2646 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3 but clarified. Adopted in Finding of Fact 6 but clarified. The fact that the closing was to be on November 14, 1986, is adopted in Finding of Fact 6. The balance of paragraph 5 is rejected as not being supported by substantial competent evidence in the record. The fact that the bank authorized the sale of the house after foreclosure is adopted in Finding of Fact 6. The balance of paragraph 7 is rejected as not supported by substantial competent evidence in the record with the exception of the fact that Respondent has not returned the deposit. Rejected since it is a statement of Respondent's testimony rather than a finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3 but clarified. 5.-7. Adopted in Finding of Fact 6. 8.-9. Rejected since it is a statement of Respondent's and Kenneth Pelczar's testimony rather than a finding of fact. Adopted in Finding of Fact 3. Rejected since it is a statement of Respondent's testimony rather than a finding of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Larry L. Bryan, Esquire 1420 North Third Street Jacksonville, Florida 32250 Darlene F. Keller, Acting Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
The Issue Whether the Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction, in violation of Section 475.25(1)(b), Florida Statutes. Whether the Respondent's guilty of failing to return an earnest money deposit upon demand, in violation of Section 475.25(1)(d), Florida Statutes, and of failing to comply with the directives of this statute when conflicting demands were made upon him concerning escrowed property. By Administrative Complaint issued on September 2, 1981, the Petitioner seeks to revoke or suspend the Respondent's real estate license, or otherwise discipline him, for alleged violations of Section 475.25(1)(b) and Section 475.25(1)(d), Florida Statutes. The Petitioner presented two witnesses in support of the Administrative Complaint, together with eleven exhibits which were received in evidence. The Respondent testified in his own behalf, along with one other witness, and introduced two exhibits which were received in evidence.
Findings Of Fact Based upon the testimony and exhibits in evidence, the stipulations of the parties, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent, Robert W. Browning, is a licensed real estate broker, having been issued License No. 0112998. The Respondent has a 25 percent interest in a Florida Partnership known as WTBS. The remaining partners are Orian P. Wells, John S. Thompson, and Luther W. Strickland. The Partnership WTBS purchased many acres of land in Dixie County, Florida from Georgia- Pacific, platted this land into lots, and offered these lots for sale. The Respondent was the registered real estate broker responsible for sales of property for the Partnership WTBS, and he was the person who had the authority to sign all closing documents in connection with transactions on behalf of the partnership. Dale Herring a licensed salesman working for the Respondent, conducted sales of the Dixie County parcels while acting under the brokerage license of the Respondent. Dale Herring negotiated a contract dated December 13, 1980, in which Robert and Frances Harburg agreed to purchase approxi- mately 14 acres of the Dixie County property. Mr. Harburg wrote a check for $2,850, payable to the Respondent, and gave the check to Dale Herring as a deposit on the property described in the contract. The Respondent placed this deposit check in his escrow account. The Respondent signed the Purchase and Sale Agreement with the Harburgs on behalf of the Partnership WTBS, as Seller, on December 16, 1980. This purchase and Sale Agreement contained the following pertinent provisions: Closing was to take place December 29, 1980. Graded-road access would be completed within four weeks of the contract. Conveyance of the property was to be by warranty deed. Seller would pay for stamps on the deed, title insurance, survey, and real estate commission. Paragraph 10 of this Agreement states: "If the Seller fails to perform any of the covenants of this contract, the [deposit] paid by the Buyer, at the option of the Buyer, shall be returned to the Buyer on demand. The closing was to take place by mail. When the Harburgs did not receive their closing docu- ments on the date set for closing, they telephoned the Respondent's real estate office. The Respondent did not return their call. The Harburgs received the closing documents January 5, 1981. The documents received conflicted with the Purchase and Sale Agreement by indicating: Conveyance was to be by contract for deed rather than by warranty deed. The Purchaser could not transfer the property without approval of the Seller. If the Seller could not give clear title to the property for any reason, the purchase price could be refunded with no interest. The contract for deed provided for a five day default period. The contract for deed required the buyer to pay certain monies to Georgia-pacific in the event of a release request. The contract for deed required the Buyer to pay for stamps on the deed. After reviewing the submitted closing documents, Mr. Harburg sent a letter to the Respondent dated January 7, 1981, requesting the return of his earnest money deposit because the closing documents submitted were in conflict with the sales contract. The purpose of this letter was to put the Respondent on notice of the Harburg's dissatisfaction with the submitted documents. The Respondent did not reply to Mr. Harburg's letter of January 7, 1981. The Harburgs visited the subject property on January 19, 1981, and found that there had been no material progress made on completion of the graded access road as required by the Purchase and Sale Agreement. On January 20, 1981, Mr. Harburg sent a second letter to Mr. Browning, requesting the return of his earnest money deposit because: The closing papers were received seven days late. The closing papers were in conflict with the Purchase and Sale Agreement. The graded access road was not completed. Upon receiving no reply from the Respondent, the Harburgs retained Richard Oehler, Esquire, to recover their earnest money deposit. Mr. Oehler wrote to the Respondent on February 6, 1981, demanding the return of this deposit within ten days. The Respondent replied to Mr. Oehler on February 10, 1981, agreeing to return the deposit upon resale of the subject property. The Respondent indicated that this would be within 30 days. Mr. Oehler wrote the Respondent on February 12, 1982, advising that the Harburgs would not wait 30 days, and that if the deposit was not returned immediately the Harburgs would file suit to recover the deposit. Mr. Oehler talked with the Respondent on February 9, 1981, March 13, 1981, March 30, 1981, and April 6, 1981, without success in securing return of the deposit. The Harburgs filed suit seeking return of the deposit in September, 1981. In mid-1981, the Respondent withdrew the deposit money from his escrow account, and deposited it into the escrow account of the attorney who represented both himself as broker and WTBS as Seller of the subject property. The Respondent neither offered to rectify the conflict in the closing documents, nor did he advise the Harburgs of any dispute between them and the Seller, WTBS, con- cerning their right to the earnest money deposit. The Respondent failed to notify the Florida Real Estate Commission concerning the dispute between the Buyer and Seller as to their rights to the earnest money deposit. The lawsuit filed by the Harburgs in September, 1981, was dismissed upon the return of their earnest money by the Respondent in February, 1982.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Robert W. Browning, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and Section 475.25(1)(d), Florida Statutes, and that his license be revoked. THIS RECOMMENDED ORDER entered this 1st day of November, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 1st day of November, 1982. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 Allen C. D. Scott, Esquire 12 North University Boulevard Jacksonville, Florida William M. Furlow, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Carlos B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32501 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
