Findings Of Fact Respondent Lucille V. Payne has been registered as a real estate salesman with the Respondent since 1975. In October 1976, she was employed by Robert L. Richardson Real Estate, New Port Richey, Florida. Her registration expired on March 31, 1979, and no evidence was presented to indicate that she has renewed her license since that time. (Petitioner's Exhibit 1) On or about October 18, 1976, George and Marie Theodorakos of Hopkinsville, Kentucky were in New Port Richey, Florida looking for a house to purchase. They viewed one house as the result of an advertisement, but decided that they did not like it. The lady at that residence told them that another house nearby was going to be put on the market. This was a home located at 1435 Mill Creek Lane which was owned by a Louisiana Corporation, W. H. Payne, Inc. Respondent was secretary/treasurer of the corporation and her husband, William H. Payne, was president. At the time, Respondent was residing in the house and her husband was employed in Wisconsin. The Paynes had not listed or advertised the house for sale, but contemplated doing so in the future. Mr. and Mrs. Theodorakos decided to purchase the house, and Respondent called her husband that evening and secured his approval for the sale. The next day a contract was executed by the Theodorakoses and Respondent. A standard form deposit receipt contract was used that contained various references to and a signature block for an "agent" who normally would have been the real estate broker or salesman handling the transaction. These references were left blank in the contract. The agreement provided that W. H. Payne, Inc. would sell the property for the sum of $42,000 payable with a $500 deposit and an additional $4,500 by November 4, 1976, with $15,000 cash payable at closing and the balance of $22,000 to be secured by mortgage. Closing of the transaction was to be on or before January 4, 1977. Paragraph 8 of the contract stated as follows: 8. This instrument shall become effective as a contract when signed by the Agent, Buyer, and Seller. If not signed by all parties on or before October 29, 1976, any monies deposited shall be refunded and this instrument shall be void. The prospective purchasers gave Respondent $500 as a deposit and she told them that it would be placed in an escrow account. She also informed them that she would send the contract to her husband in Wisconsin for his signature under the corporate seal. Respondent told Mr. and Mrs. Theodorakos that she was a real estate salesman employed by Richardson Realty, but that she was handling the sale of the house herself without commission. (Testimony of M. Theodorakos, Brooks, Petitioner's Exhibit 2) Respondent mailed the contract to her husband in Wisconsin on October 19 and he received it several days later. He signed and sealed it and placed it in the return mail to Respondent. She received it on an undetermined date prior to October 29, and placed it in the regular mail immediately to Mr. and Mrs. Theodorakos in Hopkinsville, Kentucky. Respondent's return address was on the envelope. Respondent also delivered a copy of the agreement to the Ellis National Bank in New Port Richey which held an existing mortgage on the property to be assumed by the purchasers. Respondent had previously notified the bank to send application forms to the purchasers for assumption of the mortgage. Respondent had also placed the $500 deposit in a bank account of W. H. Payne, Inc. (Testimony of Respondent, W. Payne) The Theodorakoses did not receive the contract mailed by Respondent. On Saturday, October 30, Respondent called Mrs. Theodorakos and told her that she was leaving for Wisconsin and that she could mail the remaining down payment of $4,500 to her. Mrs. Theodorakos told her that the executed contract had not been received and Respondent said that it was in the mail and would arrive probably the following Monday or Wednesday. When subsequent telephone conversations indicated that the contract probably had been lost in the mail, Respondent mailed another copy to the purchasers which they received on November 19, 1976. Also, the mother of Mrs. Theodorakos, Hylo H. Brooks, who had witnessed the agreement and lived in New Port Richey, communicated with Robert L. Richardson, Respondent's broker, concerning the matter, and he obtained a copy of the executed agreement from the bank for her sometime in early November. (Testimony of M. Theodorakos, Brooks, Respondent, Petitioner's Exhibits 2-3, Respondent's Exhibit 1) Subsequent conversations between the parties concerning disposition of the deposit and payment of the remaining portion of the down payment resulted in Mr. Theodorakos informing Mr. Payne, in early December, that he was no longer interested in the house and wanted his deposit returned. Payne informed him that he would not return the deposit since they were in default by not paying the remaining amount for the down payment. Payne informed Theodorakos, however, that they could still have the property if they would send the down payment. Shortly prior to this last conversation, Payne listed the property with a local New Port Richey broker, but inserted a special provision in the listing agreement protecting the prior rights of Mr. and Mrs. Theodorakos to purchase the property. (Testimony of M. Theodorakos, Respondent, W. Payne) Robert L. Richardson had an informal policy in his real estate office that salesmen who sold their own properties must process the transaction through his office, whether or not a commission was involved. Although Richardson testified that he had informed all of his salesmen concerning this policy, Respondent denied being aware of it. After learning of the Theodorakos contract, Richardson terminated Respondent's employment with his office and informed Petitioner in this regard on November 5, 1976. On December 1, 1977, Richardson paid the $500 deposit amount to Mr. and Mrs. Theodorakos because he felt to do otherwise would reflect upon his reputation. (Testimony of Richardson, Petitioner's Exhibits 4-5)
Recommendation That the complaint against Respondent Lucille V. Payne be dismissed. DONE and ENTERED this 16th day of May, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Harold E. Scherr Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Harvey V. Delzer Delzer, Edwards, Coulter and Parker Post Office Box 279 Port Richey, Florida 33568
The Issue Whether Respondent should increase its deposit pursuant to Section 624.411(3), Florida Statutes?
Findings Of Fact Petitioner is an insurance company domiciled in West Virginia which does business in several states, including Florida. Petitioner has been in existence for over 80 years and has conducted business in Florida for the past 30 or 40 years. Petitioner currently has approximately $540,000 on deposit in Florida, pursuant to Section 624.411(3), Florida Statutes. Florida has adopted the Uniform Insurer's Liquidation Act. Amounts held on deposit pursuant to Section 624.411, Florida Statutes, are held for the protection of all policyholders and creditors of the company who are located in a state which has adopted the Uniform Insurer's Liquidation Act. Petitioner has approximately $2,6000,000 on deposit in all states, of which approximately $1,300,000 is held for the protection of all policyholders. Amounts held on deposit in Florida can earn interest which is paid over to the Petitioner, and the deposits are held without cost to the Petitioner. Petitioner may at any time exchange the type of security or investment vehicle held on deposit as long as the market value of the replacement securities is equal to or exceeds the amount required to be on deposit. Amounts held on deposit, however, are not available to Petitioner for its operations and cannot be used to pay claims. Also, if the Petitioner wants to reduce the amount on deposit, it must receive approval from Respondent. For the calendar years ending 1983 through 1987, Petitioner's financial situation, as reflected in the financial reports filed with Respondent was as follows: YEAR CAPITAL & SURPLUS AND NET WORTH GAINS (LOSSES) FROM OPERATIONS 1983 $7.08 Million $1.51 Million 1984 7.43 2.30 1985 9.22 (0.63) 1986 8.13 (1.36) 1987 5.37 (3.22) Additionally, under the method of accounting used by the Respondent to evaluate the financial standing of insurance companies, Petitioner's Capital and Surplus and Net Worth would be lower than that reflected in the financial reports. Respondent's Review Procedures In determining the maximum amount of deposit which may be required under Section 624.411(3), Florida Statutes, Respondent uses a formula which allocates a portion of an insurance company's total obligations to Florida by multiplying the total obligations by a fraction the numerator of which is direct writings in Florida for the latest reporting period and the denominator of which is the total direct writings of the company for the same reporting period. Applying this formula to the financial data provided by Petitioner in its 1987 Annual statement or to the data in the March 31, 1988 Quarterly statement filed with the Respondent results in a determination that Respondent may require Petitioner to maintain the maximum deposit allowed by Section 624.411(3), Florida Statutes, if Respondent determines that good cause exists and that such an amount is warranted. In determining the amount of the deposit which should be required, Respondent looks at the following guidelines: (1) Solvency of the company, (2) Liquidity of the company, (3) Number of consumer complaints against the company, (4) Volume and concentration of Florida business conducted by the company, (5) history of regulatory compliance of the company, and (6) overall attitude of the company. Petitioner is solvent and liquid, under a strict interpretation of what these words mean, but both its solvency and liquidity have declined over the past year. Petitioner has taken steps which it believes will reverse the recent financial decline it has suffered. On the other hand, if Petitioner sustains the same loses it sustained last year, it may be insolvent by the end of this year.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent issue a Final Order finding that Petitioner does not need to increase its deposit pursuant to Section 624.411(3), Florida Statutes, at this time. DONE and ORDERED this 29th day of September, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 29th day of September, 1988. APPENDIX The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Accepted. RO1 and 8. Accepted as part of the record in this proceeding, but not as a Finding of Fact. First two sentences accepted. RO3 and 4. Third sentence rejected as not a finding of fact. Accepted. RO2. 5.-6. Rejected as irrelevant. First two sentences accepted generally. RO14. Last sentence rejected as not a finding of fact. Accepted. See Conclusions of Law section of the RO. First sentence accepted generally. RO10-11, and Conclusions of Law section of RO. Rest of paragraph rejected as argument; but see Conclusions of Law Section of RO. Accepted generally. See Conclusions of Law section of RO. ,12.,13. Rejected as argument. Rejected as irrelevant and argument. Whether the company will increase its profits is as speculative as the department's assertion that the company will be insolvent. The fact that the company made a profit for the first quarter of 1988 is not supportive of the prior sentence. See financial data for the first quarter of 1987 and compare with data for all of 1987. ,16.,17. Rejected as irrelevant, argument, and not findings of fact. Respondent's Proposed Findings of Fact Proposed Finding Ruling and RO of Fact Number Accepted generally. RO1. Rejected as not a finding of fact. Mr. Kummer, however, was accepted as an expert. Accepted. RO2. ,5.,6.,7. Accepted. RO4 and 6. 8.,9.,10.,11., Accepted. RO8. Accepted as set forth in RO9. The true net worth of the company cannot be conclusively established. Rejected as argument. Rejected as not a finding of fact. Accepted for proposition that net worth has declined. RO8. Cannot determine where 44 percent figure comes from. Accepted generally. RO14. Not a finding of fact. ,19. Accepted generally. RO10,11. Rejected as irrelevant. See ruling on Petitioner's proposed finding of fact 14. Rejected as argument. COPIES FURNISHED: William M. Furlow, Esquire 800 Barnett Bank Building 315 South Calhoun Street Tallahassee, Florida 32301 Gabriel Mazzeo, Esquire Michael C. Goodwin, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32300-0300 Don Dowdell General Counsel The Capitol, Plaza Level Tallahassee, Florida 32300-0300 =================================================================
The Issue The issue is whether Helena Mason or James Maher is entitled to the proceeds from the sale of the contents in a safe deposit box remitted as unclaimed property to the Department of Financial Services, Division of Unclaimed Property (Department).
Findings Of Fact The Department is charged with the responsibility and duty of delivering or paying over to a claimant property paid or delivered to the Department under the provisions of the Unclaimed Property Act, codified in chapter 717, Florida Statutes (2017). Unclaimed property is property that has been abandoned or lost by its owner for an extended period of time. Over the last 15 years or so, the Department has processed approximately 5,000,000 claims and paid $3.1 billion to the claimants. Claims concerning the contents of safe deposit boxes make up approximately five percent of the total claims processed by the Department. On December 27, 1996, Mr. Maher opened a safe deposit box account with SunTrust Bank in Orlando. The account was opened in the names of James Maher "or" Helena Mason, a friend who had resided with him for several years. Mr. Maher added her name to the account because he was unmarried, had no heirs, and did not want the contents of the safe deposit box to escheat to the State. Mr. Maher paid all fees on the box until 2010 when he stopped because of financial problems. The relationship between the two has ended. An "or" account means that either person listed on the account legally may claim all or part of the contents held in the account at any time prior to the items being declared unclaimed and then sold by the Department. § 717.12403, Fla Stat. See also § 655.937, Fla. Stat. (unless specifically provided otherwise in the lease or rental agreement, all lessees are permitted access to the safe deposit box and its contents). When the account was opened, Mr. Maher and Petitioner also agreed to be bound by the bank's Safe Deposit Box Rules and Regulations, which provide that each person had access to the "entire contents of the box." Dep't Ex. 4. Bank records reveal that between December 1996 and July 2005, Mr. Maher accessed the box nine times, while Ms. Mason never accessed the box. Neither person listed on the account attempted to remove any of the contents of the safe deposit box before the contents were treated as unclaimed property and sold. In 2015, SunTrust Bank reported to the Department an unclaimed safe deposit box in the names of James Maher or Helena Mason for the 2014 reporting year. The report was made after rent had not been paid on the box since 2010 and the account had become dormant for at least three years. If the contents of a safe deposit box are not returned to the owners of the account within a three-year dormancy period, the holder (the bank) must report and remit that property to the Department. Beginning no later than April 2012, the bank attempted to notify the two that the account was dormant. Dep't Ex. 4. The report states that Mr. Maher's address was listed as 2227 Catbriar Way, Oviedo, while Ms. Mason's address was listed as 1044 Chatham Pines, Apartment 20, Winter Springs. The report also states that the safe deposit box contained items of jewelry, coins, and miscellaneous personal papers, such as deeds, tax returns, surveys, and insurance policies. The jewelry and coins were sold by the Department pursuant to section 717.122, Florida Statutes, at an unclaimed property auction on July 13, 2017. The current amount held by the Department in the unclaimed property account is $18,871.46. Any person claiming an interest in unclaimed property may file a claim with the Department. § 717.124(1), Fla. Stat. Claims submitted to the Department must be made on prescribed forms together with documentation proving entitlement to the unclaimed property. Fla. Admin. Code R. 69G-20.0021(1). A claim form must be fully completed and manually signed by the claimant in order to be considered "complete." Fla. Admin. Code R. 69G- 20.0021(1)(b). The claimant must submit proof that he/she is the person listed on the account and entitled to the property. Fla. Admin. Code R. 69G-20.0021(4)(c)2. The Department always has construed a complete claim as one in which the claimant provides proof that he/she is the same individual listed on the account. If this is established, that person is "entitled" to the proceeds. The Department does not attempt to sort out who actually owned the contents of the safe deposit box before the contents were deemed to be unclaimed property. Therefore, the issue of which person listed on the account actually owned all or part of the contents is immaterial in determining who is entitled to the proceeds. On October 26, 2017, the Department received a claim filed on behalf of James Maher for the unclaimed property account. In support of his claim, Mr. Maher provided a copy of his driver's license and a Notice of Change in Benefits from the United States Social Security Administration, which demonstrated a connection to both the social security number submitted with his claim and the Catbriar Way address reported to the Department. The claim was deemed to be complete when it was filed on October 26, 2017. Mr. Graham, the director of the Department's Division of Unclaimed Property, gave a comprehensive description of the process used by the Department when conflicting claims are filed. His testimony was not disputed. He established that Mr. Maher's claim was "complete," "it meets every single item required to prove that it's right," and "it was done correctly." On November 13, 2017, the Department received a second claim filed by Asset Finders on behalf of Ms. Mason for the same unclaimed property account. In support of her claim, Asset Finders provided a copy of Ms. Mason's driver's license and the results of a search, which demonstrated a connection between Ms. Mason and the address reported by her to the Department. The claim was deemed to be complete when it was filed on November 13, 2017. After reviewing the competing claims, and verifying the information provided by the bank, on January 16, 2018, the Department issued a notice of intent to deny the claim filed on behalf of Ms. Mason and to approve the claim submitted by Mr. Maher. The basis for this decision was that Mr. Maher was the first person to submit a complete claim. This decision comports with the statutory mandate in the "Conflicting Claims Statute," section 717.1241(1)(a), which provides that the first person to submit a complete claim will be given the proceeds. Ms. Mason argues that the claim filed by Mr. Maher was incomplete because rule 69G-20.0021(1)(b) requires that the form must be signed by all persons making a claim, and Mr. Maher failed to secure her signature on his claim form before he submitted it to the Department. This construction of the rule would produce an absurd result and has been rejected. Petitioner also argues that she is the owner of the jewelry and therefore entitled to the proceeds. She testified that the jewelry was first owned by her grandmother, passed on to her mother, and then given to her in 1995. For safekeeping purposes only, Mr. Maher then placed the jewelry in the safe deposit box. On the other hand, Mr. Maher testified that the jewelry belonged to him, and he received it after his mother passed away in 1996. To resolve this dispute, however, it is unnecessary to determine who actually owned the jewelry. Once the contents are deemed to be unclaimed, ownership is not a statutory consideration in resolving conflicting claims.1/ In the same vein, Petitioner argues that a claimant must show entitlement to the property in order to prevail and Mr. Maher failed to do so. On this issue, the Department construes the statute to mean that if a claimant is the same person named on the account, he/she is "entitled" to the proceeds. This is a reasonable and logical interpretation of the statute. Mr. Maher satisfied this requirement. Petitioner argues that even though Asset Finders did not file her claim until November 13, 2017, she should prevail because she signed her claim form on October 21, 2017, before Mr. Maher signed and filed his claim. This contention is rejected, as the relevant statutory test is clear and requires the Department to award the proceeds to the claimant filing the first complete claim. Finally, Petitioner argues that she filed an affidavit with her application, while Mr. Maher did not. However, affidavits are required only if the proceeds from the sale are less than $250.00. § 717.124(3), Fla. Stat. By a preponderance of the evidence, Mr. Maher has established entitlement to the proceeds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order approving the delivery of the proceeds from the sale of the contents of the safety deposit box to Mr. Maher. DONE AND ENTERED this 17th day of October, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2018.
Findings Of Fact On January 18, 1982, the First National Bank in Palm Beach submitted a remittance report of unclaimed money items to the Office of the Comptroller. It listed, as item 10, an account which had been maintained by Alberta Stephens in the amount of $663.33. Alberta Stephens filed a claim to that money on March 20, 1989. In the interim the First National Bank had been acquired by Southeast Bank. In processing the claim, the Department requested the bank to provide it with a copy of the signature control card for the account. Southeast Bank could not do so, because under its retention schedule, all banking records were destroyed seven years after the account had been closed by sending the money to the Comptroller with the remittance report of unclaimed money items on January 18, 1982. Ms. Stephens is an elderly black woman. She was unable to produce copies of any deposit receipts or checks demonstrating ownership of the account. At the time the account was opened, depositors were not required to give their social security number to banks, so there is no way to trace the account to Ms. Stephens from documentary evidence. Ms. Stephens did produce the testimony of Preston L. Tillman, a real estate broker in Palm Beach County. Ms. Stephens had purchased income property from Mr. Tillman. He collected the rent on that property on Ms. Stephens behalf. He personally took Ms. Stephens to the First National Bank in Palm Beach County so that she could open an account in which to deposit the rents. He was present at the bank when the account was opened by Ms. Stephens. Ultimately, Ms. Stephens sold the rental property, and Mr. Tillman had no more contact with her. The evidence in this case is rather sparse, due to the passage of time. The evidence does demonstrate that Ms. Stephens had an account at the bank, and that there is no conflicting claim to that deposit. The testimony of Mr. Tillman, that he took Ms. Stephens to the bank so that she could open an account there, is accepted as adequate independent evidence of Ms. Stephens' ownership of the account.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the claim of Alberta Stephens to the $663.33 in unclaimed money items be upheld, and that the Comptroller deliver that money to Alberta Stephens. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of March, 1990. WILLIAM R. DORSEY, JR. 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 30th day of March, 1990. COPIES FURNISHED: John W. Carroll, Esquire Post Office Box 31794 Palm Beach Gardens, Florida 33420 Eric Mendelsohn, Esquire Department of Banking & Finance 111 Georgia Avenue West Palm Beach, Florida 33401 Honorable Gerald Lewis, Comptroller Department of Banking & Finance The Capitol Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking & Finance The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact The Petitioner is the sole heir of James C. Lewis and has been awarded the $666.58 contained in the checking account previously held by his father, James C. Lewis, at Barnett Bank in Miami, Florida. The Petitioner contends that James Lewis, the holder of the safe deposit box account number 58156 is the same person as his father, James C. Lewis, who held the checking account under with the Barnett Bank in Miami under that name with the middle initial "C" included in the signature of record. Therefore, the Petitioner contends he is entitled to the funds contained in the aforementioned safe deposit box account. The Respondent is an agency of the State of Florida charged with custody of abandoned bank accounts and other property such as, as pertinent hereto, accounts or funds for which the lawful owners or heirs have not been located. The Respondent has been represented with regard to this claim by Gregory J. Cummings up through and including the time of the informal proceeding conducted by the Respondent Department and thereafter by Randall A. Holland, Esquire, also an Assistant General Counsel for the Respondent and, as of the time of the hearing, by Robert C. Sprenkle, Jr., Esquire, a Department attorney. Subsequent to the hearing, the Respondent changed counsel once again and Miles J. Gopman, Esquire, entered his appearance on October 2, 1986. The Petitioner, James C. Lewis, of 2009 Pine Avenue, Manhattan Beach, California, is the only child and sole heir of James C. Lewis, deceased, the holder of the checking account mentioned above. Probate of the estate of James C. Lewis, deceased, was completed in Dade County, Florida, with discharge of the Petitioner as personal representative in 1975. At that time distribution of assets less attorney's fees was made to the Petitioner. After the estate was closed, additional assets were located by the Martin-Young Private Investigative Agency, Inc., which had been retained by Petitioner to assist in locating assets and obtaining distribution thereof as the Petitioner's agent. One body of those assets consisted of the $666.58 checking account deposit (account number 2907243399) in the name of James C. Lewis. The other asset consisted of account number 58156 in the name of "James Lewis" containing, originally in a safe deposit box, approximately $223,767.20. Both accounts were last held by the Barnett Bank of 5875 Northwest 163rd Street, Miami Lakes, Florida 33014, prior to the accounts and their contents being surrendered to the custody of the Department pursuant to the pertinent provisions of Chapter 317, Florida Statutes. In due course, the Respondent having obtained custody of the assets at issue pending location of the rightful owner or owners thereof, the Respondent determined to approve the payment of the $666.58 originating in the above- numbered checking account, to the Petitioner, especially since the Social Security number on that account matched the known Social Security number of the decedent, Petitioner's father. The existing bank records pertaining to the safe deposit box account do not contain a Social Security number, however. The Petitioner's claim to the account represented by the funds originally in the safe deposit box, which had been opened and which was found to contain the above large amount of cash, became the subject of an informal proceeding before James H. Allen, Director of the Respondent's Division of Finance, on the above- mentioned date. The Petitioner presented the above-mentioned documentary evidence or some of it at that informal proceeding, however, the Respondent submitted no evidence or testimony at that informal hearing. Subsequent to the informal hearing, the Respondent submitted the above-mentioned Department of Law Enforcement report concerning the handwriting analysis comparing known samples of James C. Lewis' signatures and the signature of James Lewis on the signature card or rental record related to the safe deposit box account. The handwriting analysis was inconclusive. The two handwriting experts were unable to determine whether or not the person who executed the exemplars of the signatures of James C. Lewis and James Lewis were the same person. The experts, whose report is in evidence in the instant formal proceeding, were unable to say that they were the same person nor were they able to rule out that possibility. The history of James C. Lewis commences for purposes of this record in 1945. In that year he was a student at Syracuse University in New York and met Vickie Jamison, who later became his wife, a witness for Petitioner in this proceeding, and Petitioner's mother. James C. Lewis had been employed in the merchant marine and shortly after meeting Vickie Jamison he returned to sea duty with the merchant marine. He continued seeing Vickie Jamison upon return trips to New York while working on ocean going vessels. They married in 1947. His work at that time involved duty on steamships, primarily as a purser, or the ship's officer charged with maintaining the ship's funds. His voyages during these years chiefly took him from New York to the ports of Jacksonville, Miami, then on through the Carribean and the Panama Canal to the west coast of the United States, returning by the same route. The Petitioner's father phoned his former wife, Vickie Jamison, from Florida from the cities of Jacksonville and Miami while he was on these voyages. He apparently enjoyed working on ships at sea very much and engaged in such employment through the 1940s and a significant portion of the 1950s. In approximately 1952, the decedent and his wife, now Vickie Jamison, had a son, the Petitioner, James C. Lewis, Jr. Eventually the decedent became a machinist and worked extensively in that employment and also was for a time a clothes buyer. The family was living in New Jersey at this time, where the decedent worked as a machinist. He progressed eventually from being a machinist to being an inspector of machined parts. The family also lived for a time in Bayshore, New York, and different places on Long Island, New York. The decedent had an old injury to his left shoulder related to a plane crash. This caused him frequent and chronic pain and was apparently a military service-connected disability or injury. The decedent also habitually used alcohol, apparently to excess, and often blamed his drinking on his shoulder injury and chronic pain therefrom. His wife apparently convinced him to move to a warmer climate in the southwestern United States to seek to alleviate his physical problem. The family moved for a short time to Arizona and then went on to settle in California. The decedent had initially wanted to relocate to Florida, but acceded to his wife's wishes, which resulted in the move to west coast area. The decedent apparently had close friends in Florida and especially the Ft. Lauderdale area at that time. Over the course of their marriage, the decedent experienced an increasing problem with alcoholism. He became successfully employed, however, and always earned a good income while the family was in California. He worked initially as an inspector and later as a quality control inspector and quality control engineer in the aerospace industry. He was a hard worker and considered an outstanding performer by his employers. He was often chosen by his employers to travel on behalf of the companies for whom he worked, apparently inspecting machined aerospace parts. These trips frequently took him to Florida and on occasions when he was elsewhere on the eastern coast of the United States he would sometimes phone his wife and tell her he was going to make a "side trip" to Florida, either on behalf of his company or to look up a friend. During the time he was married, the decedent habitually drove late model "flashy" cars. At the time of his divorce in 1969, he was driving a late model Cadillac convertible. He was also known to be an impeccable dresser and a habitual gambler. He regularly played poker, as well as gambled at the horse races. Although he was a frequent gambler, he also was a frequent winner, according to his former wife. He would often bring home substantial sums of money won at poker or at the tracks and would then buy her or her son gifts. The decedent had a reputation for winning at gambling most of the time. He was known as an affable person, a good mixer and good talker but was also known as "the nice guy who drank too much." He had many friends during these years, but was not particularly close to anyone. Although he was never abusive to his wife in a physical sense, his drinking became more and more of a problem in their marriage, eventually resulting in their divorce in 1969. Prior to the divorce, the decedent was a member of Alcoholics Anonymous and he and his wife used to go to the AA meetings. At these meetings she would visit with the wives of members, and he would habitually sit in the back room playing poker and frequently winning. The decedent earned a good income during his working life, but characteristically never would show his wife his pay check. He would cash his pay check and retain the money in his possession and give her a certain amount to operate the household and pay family expenses and bills. His wife opened a checking account at his behest, and paid all the family bills from that account with money he gave her to deposit therein. He habitually concealed the rest of his money earned from his employment or from his gambling winnings from her, although she never wanted for any material benefits during their marriage. She was never required to be employed outside their home during their marriage until some months prior to their divorce when he was drinking too much to be employable. After their divorce in 1969, the decedent went to live in Arizona for a short period of time, then moved on to Florida. His former wife went back to the east to live in Massachusetts near her own family. She tried to avoid further contact with her former husband, the decedent, although he would call his sister, and sometimes Ms. Jamison's brother, frequently. The decedent also made a practice of telephoning or writing to his son at various times after he and Ms. Jamison were divorced. His former wife characterized him as not being a letter writer but that he would frequently phone people, including members of her own family. These letters revealed that he worked with ship lines in the Jacksonville and Miami areas. On February 7, 1972, he wrote a letter to his son, which is Petitioner's Exhibit 4, wherein he made mention of the fact that he now had friends who liked him for reasons other than the fact that he was a "big spender," an apparent reference to his former life-style. In that letter, he also informed his son that he had made application to go to work as a purser on cruise ships operating out of the port of Miami, thus indicating a desire to engage in his favorite vocation, that of a merchant mariner. The decedent characteristically signed his name without using his middle initial if it was in a situation where someone might ask him what the middle initial meant. His middle name was Claire and he was quite embarrassed to reveal that as his middle name. This was a name given by his parents and apparently during his grammar school and high school days he was called by that name, which was distasteful to him. In fact he did not reveal that as his middle name to his former wife until immediately prior to their marriage. Upon entering the military service, he used the name James or Jim in order not to reveal his middle name. The decedent most frequently signed his name as simply James Lewis without revealing his middle initial at all. From some time in 1970 or 1971 until his death on approximately May 6, 1974, James C. Lewis, decedent, was located in Florida, living and working in Jacksonville and Miami, as evidenced by the phone calls and letters from those locations to his sister and to his son. His primary residence was Miami, where he went to work as a machinist for a company which manufactured automatic pilot equipment for ships. His employer, Mr. John Cyr, recalled that he often spoke of living and working in Jacksonville, which fit his life-style when he was single and in his early married years during the time when he served on ships which frequently called at both Jacksonville and Miami. During his years working in the merchant marine as a purser, it was his mode of living to not have a permanent residence or address of record, but rather to stay with friends or acquaintances when he was ashore for brief periods. This may explain why the Jacksonville address of "802 Laura Street" on the safe deposit box rental record ledger card is not traceable to a residence or to a residence of James Lewis. The Jacksonville address on the safe deposit box rental ledger card was for a car dealership and not a residence. It is not known whether the decedent ever worked at that car dealership or whether that address was given merely to conceal his identity as the owner of the large sum of money in the safe deposit box. In any event, his life-style was such, during his single life in Florida, on a casual basis before his marriage, and permanently after his divorce, such that he had few permanent addresses of record during his sojourns in Florida, either in the 1940s and 1950s or after 1970 or 1971. During his married life, he would sometimes boast of having carried large amounts of cash ashore on his person when he was working in the merchant marine as a purser. It was thus a part of his life-style when he was single, and especially when he was in the merchant marine, and to some extent after he was married, to be mobile, without permanent addresses and to carry large amounts of cash on his person and to frequently, and often successfully, gamble. When the subject safe deposit box was drilled and opened by Barnett Bank personnel, some of the money was wrapped in bindings indicating that it had come from race tracks. Mr. Lewis was a bright, skillful worker, and his employer, Mr. Cyr, observed that he never seemed to have financial problems during the time of his employment with Cyr's firm, which lasted through October 1973. This was true even though during this time Mr. Lewis was succumbing to alcoholism and ultimately was unable to work because of it. Mr. Cyr observed Lewis on a number of occasions conversing by telephone with his son, the Petitioner, in California. These phone conversations would often cause Lewis to become visibly emotionally upset. He remarked on a number of these occasions to Mr. Cyr that he had "put something aside for his son." He also remarked from time to time during his tenure with Mr. Cyr's firm to the effect that he had spent a lot of time in Jacksonville. Mr. Cyr was also aware that Mr. Lewis had a merchant mariner's "ticket" or license. Mr. Cyr and his company manufactured parts for ships and marine vessels, and he was accustomed to dealing with people employed in the maritime shipping industry. It was in light of this experience that he related to witness Young his belief, after hearing of the dispute concerning the large amount of cash in the safe deposit box, that it would not be too unusual for a person with Lewis' life-style and history of maritime employment, to have a large amount of cash secreted in a safe deposit box since many merchant mariners gambled, as the decedent habitually did, and often kept large amounts of cash outside of bank accounts so as not to have to report it for tax purposes. Given Mr. Lewis' life-style, characterized by seldom if ever having a permanent address of his own when he was working in the merchant marine during the '40s and '50s and again from the period 1971 to 1974 (when he apparently lived with friends and a lady friend), it would be unlikely that he would keep large amounts of cash where he lived with others The decedent worked full-time for Mr. Cyr's firm from some time in early 1972 through October 1973 when he left full time employment, apparently due to his worsening alcoholism. He still worked part time for Mr. Cyr when he was able, however. Mr. Lewis had been attending "AA" meetings and had become acquainted with a "Captain Jim Humphrey" who worked for the Marine Sciences Division of the University of Miami, apparently operating marine vessels. Probably through this friendship, Lewis obtained a job with this branch of the University of Miami working as a crew member in some capacity on a University of Miami vessel. He still occasionally worked for Mr. Cyr's company. In obtaining employment with the university, Mr. Lewis had to execute an employment application form which required him to give his full name or middle initial and his Social Security number for Internal Revenue Service "W-4 form" withholding purposes. He accordingly gave his name as James C. Lewis. He opened a checking account at this same time under the same name of James C. Lewis, likely so it would coincide with the name appearing on his university payroll records and his checks from the university. He opened the account with a $50 deposit, apparently so he would have a way to negotiate his payroll checks readily and possibly to have his banking business appear consistent with his payroll record for tax reasons. Mr. Lewis attempted to work for the University of Miami on a full time basis from some time in January or February 1974 until some time in April 1974. His increasingly acute alcoholism prevented him from continuing after this time, however, and he was forced to resign. Some time during this period of time he sought medical attention at the Miami veterans Administration Hospital for the old problem of chronic pain in his left shoulder. He was registered at the VA Hospital under the name James Claire Lewis, with Social Security number 106-06- 4060. Some time in approximately April 1974, he checked himself into the Live Oak Nursing Home for treatment of his alcoholism, registering without the middle initial "C" but using the same Social Security number. Some few days later on May 2, 1974, he either "signed himself out" of the treatment center or convinced its staff to release him temporarily, because he obtained permission from his friend, Hal Jones, who was being treated at the center at the same time, to use his apartment. Four days later he was found dead in the apartment with no identification on his person or in the vicinity. Mr. Jones and the other friend of Mr. Lewis, who shared the apartment with Jones, identified the decedent for police. When the Dade County Medical Examiner began investigating Mr. Lewis' identity and next of kin, he called the Veterans Administration Hospital and discovered that Mr. Lewis had been treated there under the name James Claire Lewis, but with the same Social Security number he had given the Live Oak Nursing Home. This was how the next of kin, including the decedent's sister, Ruth Karns, and the Petitioner were discovered. His few friends and employer, Mr. Cyr, had only known him as simply James Lewis. Insofar as known records of his life in Florida after his divorce are concerned, only the university and the Veterans Administration Hospital were ever given his full name, likely for purposes of establishing consistency with his earlier Internal Revenue Service and Veterans Administration records. Thus, it has been established that James Claire Lewis, the Petitioner's father and the decedent herein, seldom used his middle name or initial and, in fact, had such an aversion to it that his friends were unaware of it and he did not even reveal it to his wife until the eve of their marriage. It has been demonstrated by his former wife's testimony and a letter to his son dated February 7, 1972, in evidence, that he worked for many years as a purser on merchant ships and indeed was attempting to return to that vocation and life- style as of the time he wrote that letter to his son. That letter also corroborates his former wife's testimony regarding his reputation as a "big spender," which testimony also establishes his habit of carrying large amounts of cash and reserving substantial portions of his salary in cash for purchases of necessities and luxuries for himself and his family, with the family bank account only being used for paying household expenses and bills. The decedent was a habitual gambler with quite a measure of success according to his former wife, and he obtained extra cash by this means as well. The cash in the safe deposit box bore evidence that it came in part from race tracks. His life-style during the time he worked on ships, as well as when he made trips to Florida on behalf of his employer, a California aerospace parts manufacturer, and again after he returned to Florida following his divorce, was to live with friends or acquaintances, leaving no record of addresses maintained in his own name. He often spoke to his employer, Mr. Cyr, of spending time in Jacksonville and often called his sister and former wife from that location. Additionally, the decedent informed Mr. Cyr on a number of occasions that he had "set aside something for his son" and had told Petitioner that as well. Finally, it should be pointed out that the bank where the safe deposit box and funds was maintained is proximate to the decedent's work places and usual haunts, both at the time he frequented the Miami area when serving in the merchant marine in the 1940s and '50s and the time after 1971 when he was living and working in Miami. The above factors based upon circumstantial and direct evidence of record, admitted without objection and stipulated to, establish a sufficient nexus between the circumstances and locations under which the safe deposit box account was established and maintained under the name James Lewis and the domiciliary area, places and types of employment and all the other above- described elements of the life-style of James C. Lewis, the decedent and Petitioner's father, as to raise an inference that it was indeed his safe deposit box account. This inference was corroborated and borne out in turn by the testimony (by affidavit and letter stipulated into evidence) of Ruth Karns, his sister, and the Petitioner, his son, to the effect that the signature on the safe deposit box rental ledger card is indeed that of the Petitioner's father, James C. Lewis, as well as by the direct testimony to that effect by Vickie Anne Jamison, the former wife of James C. Lewis. Having observed the candor and demeanor of Ms. Jamison, including her obviously sincere emotional distress caused by observing and identifying her former husband's signature on the safe deposit box ledger rental card and the recollection of their marriage and family life together, which was destroyed by his alcoholism, the Hearing Officer is constrained to accord her unequivocal testimony that her former husband, the Petitioner's father, signed the safe deposit box rental ledger card preponderant weight and credibility. Accordingly, it has been established that the Petitioner's father, James C. Lewis, also known as James Claire Lewis, was the James Lewis who signed the subject safe deposit box rental ledger card and was the holder of the safe deposit box and owner of the disputed funds therein.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor add demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered approving the claim of the Petitioner to the approximate sum of $223,767.20 held by Respondent in its account number 2223-1983-0219. DONE and ORDERED this 13th day of May, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1987. COPIES FURNISHED: Robert W. Breslin, Esquire Suite 402-A 11151 - 66 Street, North Largo, Florida 33543 Robert L. Shevin, Esquire SPARBER, SHEVIN, SHAPO, HEILBRONNER & BOOK, P.A. 30th Floor, AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131 Miles J. Gopman, Esquire Senior Attorney Office of the Comptroller 1302 The Capitol Tallahassee, Florida 32399-0350 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0305 Charles Stutts, Esquire General Counsel Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0305
The Issue The issues in this case are whether Respondents violated Subsection 475.25(1)(k), Florida Statutes (1999), by failing to maintain an escrow deposit in a trust account until properly authorized; whether Respondents violated Subsection 475.25(1)(d)1, Florida Statutes, by failing to account for or deliver funds; whether Respondents violated Subsection 475.25(1)(b), Florida Statutes, by committing a breach of trust or culpable negligence in a business transaction; and, if so, whether the proposed penalty is reasonable.
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Simons is licensed in the state as a real estate broker/officer of Respondent, Home Hunters USA, Inc. (Home Hunters), pursuant to license number BK-0159866. Home Hunters is a corporation registered as a Florida real estate broker pursuant to license number CQ-0146369. On March 21, 1996, Respondents entered into a property management contract (amended contract) with Max and Mary Newman (Newmans). The amended contract authorized Respondents to lease and manage real property owned by the Newmans and located at 1555 Whiskey Creek Drive, Ft. Myers, Florida 33919 (the property). The original contract that Respondents proposed to the Newmans was dated March 11, 1996. The original contract contained a clause that would have obligated the Newmans to pay a sales commission to Respondents in the event Respondents sold the property to a tenant or certain other purchasers. The Newmans deleted that language from the original contract, initialed the deletion, dated the deletion "3/21/96," signed the amended contract on March 21, 1996, and returned the amended contract to Respondents. The deleted language in the amended contract signed by the Newmans provided: Owner agrees to pay Agent a sales commission for the sale of said property to the tenant, or any other the tenant relates or refers. Agent will perform any services normally performed to consummate the sale to the tenant in a professional and diligent manner. Owner shall notify Agent at earliest possible time so that Agent may perform services (prequalify, arrange financing, closing, repairs, etc.). It is the owners [sic] responsibility to pay said fee to Agent upon closing of sale. Petitioner's Exhibit 5 (P-5) at 19 (the second unnumbered page of the exhibit). On or about February 1, 1999, Respondents brokered a lease of the property from the Newmans to Ms. Lilly Gilson (Gilson). Mr. Newman signed the lease agreement on February 14, 1999, and Gilson signed it on February 23, 1999. The lease agreement, in relevant part, obligated the Newmans to pay Respondents a "fee" in the event the "tenant should enter into a lease purchase, lease option, or purchase through their tenancy." The lease agreement states that the fee is for Respondents "serving the sale as a broker" but does not specify the amount of the fee, does not express the fee as a percentage of the purchase price, and does not otherwise specify how the fee is to be determined. Neither of the Respondents is a signatory to the lease agreement. At the time Gilson entered into the lease agreement, Gilson paid a deposit of $650 to Respondents as a security deposit in accordance with the lease agreement. Respondents placed this deposit into a trust account. At some point prior to December 1999, the Newmans entered into a purchase and sale contract to sell the property to Mr. Gary Newman (Buyer). The Buyer is unrelated to the Newmans, but is a relative of Gilson. The Newmans closed on the sale to the Buyer on December 28, 1999. The parties to the sale used other brokers in the transaction over Respondents' objections, and neither of the Respondents served the sale as a broker. The closing statement shows that the Buyer was obligated to pay the $635 security deposit to the Newmans. Subsequent to the closing, Respondents transferred the security deposit from their trust account to their operating account. Simons believed he was entitled to a commission on the sale from the Newmans to Buyer. Respondents had actual knowledge that the Newmans claimed entitlement to the security deposit and disputed Respondents' entitlement to the security deposit. Simons was aware as early as December 11, 1999, that the Newmans did not knowingly consent to pay Respondents a commission on the sale transaction. Respondents failed to notify the Florida Real Estate Commission (Commission) of the dispute concerning entitlement to the security deposit. Respondents did not institute the settlement procedures prescribed in Subsection 475.25(1)(d)1, Florida Statutes (1999).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that Respondents violated Subsections 475.25(1)(b), (d), and (k), Florida Statutes (1999), by committing the acts alleged in the Administrative Complaint; imposing a fine of $1,000 against each licensee; and suspending Respondents' licenses concurrently for 30 days. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2003. COPIES FURNISHED: Christopher J. DeCosta, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801-N Orlando, Florida 32801 Larry A. Simons Home Hunters USA, Inc. 1415 Colonial Boulevard, Suite 3 Fort Myers, Florida 33907 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802-N Orlando, Florida 32801-1772
Recommendation Based upon the Findings of Fact and Conclusions of Law stated above the Hearing Officer would recommend that the Florida Real Estate Commission issue a letter of admonition to Leroy Wilson clarifying his responsibilities and the maintenance of his financial affairs and proper business office when operating as a broker. DONE and ORDERED this 22nd day of June, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Henry Latimer, Esquire Mavrides and Latimer 5353 Southwest 40th Avenue Fort Lauderdale, Florida 33314
Findings Of Fact Respondent, Carl A. Perry, is licensed by Petitioner as a real estate salesman. At all times material hereto, he was employed by F.E.C. Real Estate Corporation. On September 23, 1979, Respondent negotiated and procured a contract whereby Ronald Joeckel and his wife were to buy and Lynn C. Burdeshaw and his wife were to sell certain real property owned by the Burdeshaws and located in Pompano Beach, Florida. In order to secure that Deposit Receipt Contract, the Joeckels gave Respondent on that date a $100 deposit. The Deposit Receipt Contract required an additional deposit of $1,900, and on October 11, 1979, Respondent received a $1,900 check from the Joeckels. The check was dated October 20, 1979. Respondent did not give this check to his employer until November 23, 1979. When F.E.C. Real Estate Corporation deposited the check for $1,900 in its trust account, the check was dishonored by the bank upon which it was drawn for the reason that the Joeckels did not have sufficient funds to cover the check. Instead of advising the Burdeshaws that the Joeckels' $1,900 check was dishonored, Respondent contacted Ronald Joeckel on several occasions. Joeckel each time advised Respondent that he would cover the check, and Respondent relied upon that information and believed that the Joeckels would fulfill their contract for the purchase of the Burdeshaws' property. Respondent was in error; the Joeckels breached the Deposit Receipt Contract, and the Burdeshaws sold their property to another purchaser soon thereafter. Respondent's employer, F.E.C. Real Estate Corporation, was not the listing broker for the Burdeshaws' property. Shell Coast Realty held that listing. Other than this Administrative Complaint, Respondent has had no other complaint made against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered reprimanding Respondent, Carl A. Perry, for his conduct, admonishing Respondent, Carl A. Perry, to abstain from similar conduct, and placing him on probation for a period of one year. RECOMMENDED this 21st day of December, 1981, in Tallahassee, Florida. LINDA M. RIGOT, 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 21st day of December, 1981. COPIES FURNISHED: William R. Scherer, Esquire Grimmett, Conrad, Scherer & James, P.A. 707 Southwest. Third Avenue Post Office Box 14723 Fort Lauderdale, Florida 33302 Mr. Carl A. Perry c/o F.E.C. Real Estate Corporation 4634 North Federal Highway Lighthouse Point, Florida 33064 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the posthearing memorandum and the entire record compiled herein, I hereby make the following relevant findings of fact: Respondent, Alfred Rifflard, Jr., during times material herein, was a licensed real estate broker-salesman and is the holder of license number 0338064. Respondent, Thomas L. Narog, during times material herein, was a licensed real estate salesman and is the holder of license number 0309097. On approximately May 24, 1982, Respondent Narog represented to John F. Wodalski that Respondent Rifflard, as an investor, was interested in purchasing certain real property owned by Wodalski. Based on discussions with seller Wodalski, Wodalski and Respondent Alfred Rifflard entered into a deposit receipt and contract for sale and purchase of the Wodalski property. The purchaser is listed on the deposit receipt contract as Alfred Rifflard and/or assigns." (Petitioner's Exhibit 3) The negotiations for the sale of the subject property were conducted at the bar of a country club where both Respondent Naroq and seller Wodalski were employed. Respondent Rifflard was aware that the subject property had been on the market for approximately eighteen months. Seller Wodalski expressed (to Respondent Narog) disenchantment that he was unable to move the property as he had planned to purchase other properties with the proceeds received from the sale of the subject property. Respondent Narog attempted to sell the Wodalski property to enable him (Wodalski) to purchase the other property. During the negotiations for the sale of the subject property, Respondent Wodalski tendered a copy of his business card to seller Wodalski. That business card reflected that Respondent Rifflard was a licensed real estate salesman. Following the execution of the deposit receipt contract by Respondent Rifflard, Respondent Rifflard showed the property to approximately three prospective purchasers in an effort to sell the property prior to the purported closing date. Federal Land Title Corporation of Ft. Lauderdale, Florida was commissioned to handle the closing of the property from seller Wodalski to Respondent Rifflard and/or his assigns. This is confirmed by a letter dated August 19, 1982 to seller Wodalski wherein loan processor Kathy Bradley advised the seller that she expected to expedite the closing of the Wodalski property. (Petitioner's Exhibit 4) Upon receiving the above-referred letter from Federal Land Title Corporation, seller Wodalski demanded a tender of the $1,000 earnest money deposit which is referred to in the deposit receipt contract executed by Respondent Rifflard. At that time, Respondent Narog was told that no monies could be disbursed to him prior to closing. Seller Wodalski called off the closing based on his claim that another broker advised him that it was illegal for an undisclosed licensed real estate salesman to purchase property in his name. Based on the testimony of Respondents Rifflard and Narog including the testimony of the Petitioner's investigator, Anthony Nicola, who investigated the subject complaint, it is specifically found herein that the Respondents disclosed the fact that Rifflard was a licensed real estate salesman at the time the deposit receipt contract was executed herein. In making this finding, consideration was given to seller Wodalski's testimony to the effect that he was busy 2/ at the time that he entered the deposit receipt contract and that it was indeed possible that Respondent Rifflard tendered a business card to him at the time he entered the subject contract. Paragraph two of the deposit receipt contract reveals that the method of payment includes a $1,000 deposit, in the form of a note, which would be returned to the buyer at closing. It is undisputed by the Respondents that no earnest money deposit note in the amount of $1,000 was given the buyer's attorney to be held in trust until the closing was completed. The Respondents acknowledged that it was an error on their part to fail to execute the earnest money deposit as Respondent Rifflard agreed in the subject deposit receipt contract. Further, Respondent Rifflard urges that his failure to execute a note was an oversight on his part.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondents, Alfred Rifflard, Jr. and Thomas L. Narog, be privately reprimanded by the Petitioner, Division of Real Estate, based on their failure to place in deposit, to be held in trust, a $1,000 earnest money deposit in connection with the transaction surrounding the deposit receipt and contract for sale and purchase entered into by Alfred Rifflard, Jr., as purchaser of certain real property owned by John Wodalski. RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida. JAMES E. BRADWELL 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 31st day of January, 1984.
The Issue Whether Respondent violated Section 475.025(1)(b), Florida Statutes, and, if so, what the appropriate penalty is.
Findings Of Fact At all times relevant hereto, O. Dane Streets was licensed by the Florida Real Estate Commission as a real estate broker having been issued License No. 0085710-1 for an address in Lakeland, Florida. In the Spring or early Summer of 1991, Nathan Price, a minister in Orlando, Florida, contacted Respondent to solicit Respondent's participation in representing Price's daughter, Melissa Howard, in purchasing real estate in Orlando. Price and Respondent have been business and social acquaintances for more than 10 years, and Price was helping his daughter and son-in-law in purchasing a home. The Howard's found a house they liked, Respondent obtained the listing information from the listing broker and prepared a contract for sale and purchase (Exhibit 1). As modified and accepted by all parties, this contract provided for a $1000 earnest money deposit to be held in escrow by Respondent's real estate company. In lieu of obtaining the deposit from Price or Howard, Respondent told Howard to give the earnest money deposit to the selling broker as all of the transactions were to be conducted in Orlando. The $1000 earnest money deposit was given to neither Respondent nor the listing broker, ReMax Southwest in Orlando. The failure of Respondent to follow up to insure that the earnest money deposit had been given to the listing broker in this transaction does not reach the status of fraud or dishonest dealing as Respondent had no such intent. Shortly before the August 21, 1991 closing date, Price advised Respondent that the mortgage lender was asking about the earnest money deposit. Respondent immediately obtained a cashier's check dated August 8, 1991 (Exhibit 2) in the amount of $1000 which Price presented at the closing on August 21, 1991. In his testimony, Respondent acknowledged that he erred in not obtaining the earnest money deposit or failing to check to be sure the deposit had been made with the listing broker. Since Respondent is located in Lakeland and the property being purchased is in Orlando when the closing was held, Respondent thought everything would be simplified if the deposit was held by the listing broker. When the listing broker learned that the deposit of $1000 had never been received by Respondent and placed in escrow, a complaint was made to the Florida Real Estate Commission, and these proceedings followed. Respondent has held licenses from the Florida Real Estate Commission for some 20 years, and this is the first time any charges have been brought against his license.
Recommendation It is Recommended that a Final Order be entered finding O. Dane Streets not guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged. ENTERED this 21st day of January, 1992, in Tallahassee, Florida. K. N. AYERS 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 January, 1992. Copies furnished to: Steven N. Johnson, Esquire Darlene F. Keller Division of Real Estate Division Director 400 W. Robinson Street Division of Real Estate Post Office Box 1900 400 W. Robinson Street Orlando, FL 32801-1900 Post Office Box 1900 Orlando, FL 32801-1900 O. Dane Streets Post Office Box 6852 Jack McRay, Esquire Lakeland, FL 33807 Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
