Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. During times material herein, Respondent, George May, was a licensed real estate broker (License No. 00056693) whose principal business address is 2300 West Oakland Park Boulevard, Suite 202, Fort Lauderdale, Florida 33311. On April 24, 1980, George Aro, a licensed real estate salesman, was employed by Respondent and entered into an employment agreement whereby salesman Aro, while acting in his capacity as a real estate salesman, would receive a sixty percent (60 percent) share of commission fees paid when salesman Aro was the procuring cause of a realty transaction which resulted in the payment of a commission. (See Petitioner's Exhibit 1). On August 29, 1980, salesman Aro discussed, negotiated, and obtained a contract for purchase whereby Peter Licato agreed to purchase a vacant lot in Palm Beach County, Florida. The transaction closed during September, 1980, with Respondent receiving a commission of approximately $300.00 on the Licato transaction. (See Petitioner's Exhibit 2). Pursuant to the employment agreement entered between Respondent and salesman Aro, Messr. Aro demanded his pro-rata share of the commission paid, which was received by Respondent. Respondent refuses to account for, or otherwise deliver to salesman Aro any portion of the commission received from the Licato transaction. On August 9, 1980, salesman Aro, while acting in his capacity as salesman with Respondent, negotiated and obtained a contract of the sale of a vacant lot in Palm Beach County, Florida from seller, Mrs. Nicholas Deickmann to purchaser, Hooshang Abid. The transaction closed sometime during September of 1980, and Respondent received a commission of approximately $330.00. Pursuant to the party's employment agreement, salesman Aro demanded his pro-rata share of the commission received, and Respondent refuses to remit or otherwise deliver to salesman Aro his portion of the commission received. In this regard the Respondent does not dispute and stipulated that salesman Aro was the procuring cause of the above-referred-to transactions, and admits that the commissions were received. Respondent's Defense Respondent defended his failure to account for or otherwise deliver to salesman Aro commissions received from the above transactions on the theory that salesman Aro failed to attend the closings of the above transactions, or that salesman Aro obligated his firm to pay certain expenses which were connected with the closing, which were not authorized. Respondent's defense was considered by the undersigned and rejected for lack of proof. Moreover, the undersigned advised Respondent during the hearing herein that the proper procedure to seek redress from salesman Aro for those claims asserted herein, which were not a part of the subject administrative complaint, is through the filing of a written complaint properly executed, with the Board of Real Estate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's real estate broker's license be suspended for a period of two (2) years. RECOMMENDED this 25th day of August, 1981, 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 25th day of August, 1981. COPIES FURNISHED: John R. Huskins, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. George May 2300 West Oakland Park Blvd. Suite 202 Fort Lauderdale, Florida 33311
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 Chapter 475, Florida Statute, and rules promulgated pursuant thereto. Respondent Dean O. Vanderwoude is now a real estate broker and was at all times material hereto a real estate salesman in Florida having been issued license number 0432878 in accordance with Chapter 475, Florida Statutes. On August 15, 1988, Respondent passed an examination to be licensed as a broker and was licensed as a broker on September 1, 1988. At all times material hereto, Respondent was licensed as a salesman and operated under the direction, control, or management of a licensed real estate broker, Anne M. Graffunder, and P.M.M. Properties under a 100 percent commission agreement whereby Respondent rented office space from his broker Graffunder. Respondent was affiliated with Graffunder and P.M.M. Capital, Inc., from approximately November 4, 1986, to October 16, 1987. When Respondent became affiliated with P.M.M., he had been licensed less than one year having first been affiliated with Security Realty Florida from December 20, 1985, to November 4, 1986. Under Graffunder's supervision, Respondent received little assistance in the form of guidance or instructions as to the methods and manner of presenting purchase contracts to sellers, little or no office support in the form of clerical assistance or technical training in the methods of handling escrow funds, no malpractice insurance coverage in the form of errors or omission's policy and no sales/training seminars. On approximately April 6, 1987, Respondent obtained a sales listing from Gary Alan Dahl (Dahl), a real estate investor, concerning real property, the record owner of which was Joe Belcik who had granted to Dahl equitable title to the property by Quit Claim Deed yet unrecorded. (Petitioner's Exhibit 2). The real property located at 2785 Adrian Avenue, Largo, Florida, had been purchased by Belcik from Dahl who had previously purchased the property from the Veteran's Administration. Respondent was aware of the condition of the title to the property listed by him for sale as he reviewed an abstract of the property. On April 6, 1987, prospective purchasers David and Donna A. Kiser (herein purchasers) viewed the real property at 2785 Adrian Avenue, Largo, Florida, and contacted Respondent at a telephone number observed on a "for sale" sign posted on the property. On that date, the purchasers executed a written offer to purchase the property, which offer was prepared by Respondent. (Petitioner's Exhibit 3). In conjunction with the offer to purchase, the purchasers tendered an earnest money deposit to Respondent, by cashier's check number 703917, dated April 10, 1987, in the amount of $100.00 made payable to P.M.M. Properties. The cashier's check was deposited into the escrow account of P.M.M. Capital, Inc., Sun Bank of Tampa Bay account number 265-014-3405 on April 15, 1987. The transaction closed on April 22, 1987. Following the closing, Graffunder issued a check number 140 written on the escrow account of P.M.M. Capital, Inc., Sun Bank/Southeast, account number 265-014-3405, dated April 22, 1987, made payable to Respondent in the amount of $100.00. The check was received by Respondent with Dahl's full permission and consent. Respondent represented to the purchasers that the seller, Dahl, had accepted their offer and desired to close the transaction immediately. Toward that end, Dahl came to Pinellas County from Sarasota County and executed all documentation necessary to effectuate the transfer on or before April 15, 1987. On April 15, 1987, Respondent met with the purchasers and had them sign all closing documents. This included execution of a closing statement and the Kisers requested an extension in order to obtain the $4,900.00 closing proceeds from Mrs. Kiser's father. On April 22, 1987, Mrs. Kiser presented the closing proceeds check and the transaction was finalized. That proceeds check and the $100.00 deposit check were both placed in Graffunder's operating account and pursuant to instructions from Dahl, Respondent received the closing proceeds as agent for Dahl. Dahl and the purchasers completed the closing by executing an Agreement for Deed on April 15, 1987. That agreement provides, in pertinent part, that the purchaser's would pay Dahl the total purchase price of $65,000.00 which included a down payment of $5,000.00 and monthly payments of $557.07 commencing May 1, 1987, and continuing for twenty-nine (29) months at which time the remaining principal balance of $60,073.18 would be payable in the form of a balloon payment. Dahl agreed to carry fire insurance for the full insurable value of the property and the purchasers were to have their names added to the policy as additional insureds. Additionally, both parties agreed that a Memorandum of Interest would be filed in the records of Pinellas County at the time of entering into the Agreement for Deed. Finally, the Agreement for Deed represented that there was a first mortgage in favor of Chrysler First and stated the condition that should the purchasers fail to make payments required of them within thirty (30) days after the same becomes due, the seller may, at his option, declare the contract null and void and all monies paid may be retained as full satisfaction and/or liquidated damages. Respondent did not provide the purchasers a warranty deed until approximately June 27, 1988, when he first became aware that Dahl had not given one to the Kisers. Respondent acknowledges that given the opportunity to reconstruct that transaction, he would have ensured that the seller provided a Warranty Deed to the purchasers as agreed in the Agreement for Deed. Respondent did not follow-up to ensure that a Memorandum of Interest was filed in the public records of Pinellas County as the parties agreed. Within months following the Riser's purchase of the subject property from Dahl, they became disenchanted with the property and ceased making payments under the agreement for Deed causing a large arrearage to accumulate and a subsequent mortgage foreclosure action was initiated.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED: The Petitioner enter a final order finding that an administrative fine of $500.00 be imposed upon Respondent and his license number 0432878 be placed on probation for a period of sixty (60) days with the condition that the fine be payable to Petitioner within thirty (30) days of entry of the final order. RECOMMENDED this 29th day of June, 1989 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 29th day of June, 1989. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Brian E. Johnson, Esquire Brian E. Johnson, P.A. 7190 Seminole Boulevard Seminole, Florida 34642 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Darlene F. Keller, Division Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Cindy Realty of Hernando, Inc., and William Colello as real estate brokers. DONE and ORDERED this 30th day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Stephen C. Booth, Esquire 1604 U.S. Highway 19, North New Port Richey, Florida 33552
The Issue Whether either Respondent violated the provisions of chapter 475, Florida Statutes,1/ regulating real estate sales associates, as alleged in the administrative complaints, and if so, what sanctions are appropriate.
Findings Of Fact The Florida Real Estate Commission, created within the Department, is the entity charged with regulating real estate brokers, schools, and sales associates in the State of Florida. The Division of Real Estate is charged with providing all services to the commission under chapters 475 and 455, Florida Statutes, including recordkeeping services, examination services, investigative services, and legal services. In 2006, Ms. Linda Fiorello and Ms. Catherine Lichtman, associates at another brokerage, decided to open up their own real estate business, with each owning a fifty-percent share. They created Luxury Realty Partners, Inc. (“the corporation”), a licensed real estate corporation in the State of Florida. While Ms. Lichtman was initially the qualifying broker, she soon stepped down from that position and a series of other individuals served as brokers for the corporation. Neither Ms. Fiorello nor Ms. Lichtman was licensed as a real estate broker at any time relevant to the Administrative Complaints. The corporation sold, exchanged, or leased real property other than property which it owned and it was not an owner-developer. On April 23, 2010, Mr. Brian Davis was added as the sole officer and director of the corporation, and he became the qualifying broker. At all times material to the complaints, Ms. Fiorello and Ms. Lichtman were licensed as real estate sales associates in the State of Florida, Ms. Fiorello having been issued license number 659087 and Ms. Lichtman having been issued license number 3170761. They worked together at the corporation, nominally under the direction, control, and management of Mr. Davis. The corporation did not maintain an escrow account. Mr. Davis did not manage any of the corporation’s bank accounts. He was not a signatory on the operating account. He did not collect brokerage commissions or distribute them to sales associates. He testified he went into the office “maybe once, once or twice a month.” When he agreed to become the qualifying broker for the corporation, he did not even know all of the names of the agents he was supposed to be responsible for. Mr. Davis stated: Well, basically, I was just doing a favor and I was – I put my license there until one of the other two could get their Broker’s license. I was just really stepping in for a short term to – to fill the time frame until one of them could get their Brokerage license, and I didn’t go on any management or any other books or anything of that nature. As Ms. Patty Ashford, one of the sales associates testified, Mr. Davis was seldom in the office. Ms. Ashford would turn in her contracts to Ms. Fiorello or Ms. Lichtman, who would review them. Ms. Ashford testified that her commission checks were then paid by checks signed by Ms. Lichtman. In short, Mr. Davis effectively provided no direction, control, or management of the activities of the corporation or its sales associates. In December of 2009, Ms. Jennie Pollio was living at 10861 Royal Palm Boulevard in Coral Springs, Florida (the property), a Section 8 property that she had been renting from Mr. Jimmy Laventure for about nine years. The property was in foreclosure. Ms. Pollio thought that she might be able to buy the property. She consulted Ms. Victoria Guante, a real estate sales associate with Luxury Realty Partners, Inc. Ms. Pollio knew Ms. Guante because they both had sons who played baseball on the same team. Ms. Guante told Ms. Pollio to get $40,000.00 in cashier’s checks and put it in escrow with Luxury Realty Partners, Inc., so that she could make a strong offer and show that she really had the money. Although they were not produced as exhibits at hearing, Ms. Pollio testified that she signed a couple of different contracts for the property in early 2010. On or about April 29, 2010, Ms. Guante accompanied Ms. Pollio to the bank to get cashier’s checks. Ms. Pollio received five Bank of America cashier’s checks made out to “Luxury Partner Realty,” four in the amount of $9000.00, and one in the amount of $4000.00. Ms. Pollio understood that the property could be purchased for a total of $40,000.00, which included $37,000.00 for the property, and the balance in closing costs. The cashier’s checks were not given to a broker. Ms. Pollio gave the $40,000.00 to Ms. Fiorello as a deposit on the property when she met with her in the corporation office on State Road 7. Ms. Pollio made a copy of the cashier’s checks and Ms. Fiorello wrote a note on the bottom of the copy, “Received by Linda A. Fiorello for Luxury Escrow deposit on contract 10861 Royal Palm Blvd Coral Springs FL 33065” and gave it back to Ms. Pollio.2/ Although the payee name on the cashier’s checks was transposed, Ms. Pollio gave the checks to Ms. Fiorello as agent of the corporation as a deposit on the property, and Ms. Fiorello accepted the checks on behalf of the corporation for the same purpose. Ms. Fiorello did not advise Mr. Davis that the checks had been received. Instead, she deposited the checks in an account formerly belonging to Luxury Property Management, an entity unaffiliated with Luxury Realty Partners, Inc.3/ Luxury Property Management had never been a licensed real estate brokerage corporation, and was no longer in existence, as it had been dissolved. The account had never been properly closed. The account usually had a low balance. Just prior to the deposit of Ms. Pollio’s money, the balance was $10,415.15. Ms. Lichtman had no ownership or interest in Luxury Property Management, but she was aware of the account. The corporation did not have an escrow account, and the Luxury Property Management account was sometimes used to hold money “in escrow,” as Ms. Lichtman was aware. As he testified, Mr. Davis knew nothing about this account and did not authorize Ms. Fiorello to place Ms. Pollio’s deposit there. Ms. Fiorello’s contrary testimony that she told Mr. Davis of the transaction and had his authorization was not credible and is rejected. Ms. Guante was negotiating for the property on Ms. Pollio’s behalf. She testified: At that point the guy was asking (unintelligible) I think was sixty-five, and then we made the offer for $40,000.00. The guy came back and say “no,” and then we went back and make another offer for $50,000.00, and then by that time the guy still say “no.” And then her and I get into an argue because baseball game that don’t have nothing to do with the real estate and then she decided she don’t want me no more as her agent. Ms. Guante called Ms. Fiorello and told her that Ms. Pollio didn’t want to work with Ms. Guante anymore. Ms. Fiorello told Ms. Guante not to worry about it, that the corporation would handle the transaction for Ms. Pollio. On September 23, 2010, a check in the amount of $40,000.00 was written from the Luxury Property Management, LLC, account to Luxury Realty Partners. It is undisputed that the hand writing on the “amount” and “pay to the order of” lines on the check was that of Ms. Lichtman, while the signature on the check was that of Ms. Fiorello. This check, posted into the corporation’s operating account the same day, along with a check for $6000.00, left a balance of only $684.15 in the Luxury Property Management, LLC, account. The two sales associates gave completely different explanations for the check. Ms. Fiorello testified that she always left one or two signed checks locked in the office when she was out of town. She testified that only she and Ms. Lichtman had keys to the lock. Ms. Fiorello testified that without her knowledge, Ms. Lichtman had removed a signed check and filled in the top portion. She testified that although it was her account, she did not realize that the money had been removed until around May 2011, some eight months later.4/ On the other hand, Ms. Lichtman testified that on numerous occasions, the two associates would write out checks together, and that in this instance they discussed the transfer in connection with the opening of a Rapid Realty real estate office in New York which involved Ms. Fiorello’s son. Ms. Lichtman testified that she filled out the top portions of the check, and Ms. Fiorello then signed it. Ms. Lichtman testified that the $40,000.00 “represented monies coming back into Luxury Realty Partners from Rapid Realty.” Ms. Lichtman did not explain why funds from Rapid Realty to repay a loan from Luxury Realty Partners would have been deposited into the Luxury Property Management account, and records for the Luxury Property Management account do not reflect such deposits. On November 4, 2010, a little over a month later, Ms. Lichtman transferred $40,000.00 from the corporation operating account into an account for Chatty Cathy Enterprises, an account controlled by her, and inaccessible to Ms. Fiorello. Ms. Lichtman’s explanation for these transfers, that the $40,000.00 came from the New York real estate venture in repayment of a loan made from the corporation, was unpersuasive, and is rejected. First, the only documentary evidence of a loan made to the “start-up” was an unsigned half-page note dated April 30, 2010. That document indicated that an interest-free business loan in the amount of 25,000 would be made from the corporation to “Rapid Realty RVC and its owners” and that re- payment of the loan would be made in monthly payments to the corporation. No amount was specified for these payments. Similarly, there was no evidence of any repayment checks from Rapid Realty to Ms. Fiorello, Ms. Lichtman, or the corporation. A document dated November 5, 2010, purports to be a “formal release” of that loan. It states in part: The above stated note lists a dollar amount of $25,000 dollars which is inaccurate. The total balance of the loan was approximately $48,000 dollars that was loaned by Luxury Partners Realty (sic), Catherine A. Lichtman and Linda A. Fiorello. This is the formal dollar amount of the loan that is considered paid and satisfied in full. This release appears to be signed by Ms. Lichtman and Ms. Fiorello. Even assuming that the loan had been repaid in full by the New York venture (although no corporation account deposits indicate this), it is not credible that Ms. Lichtman believed she was personally entitled to a payment of $40,000.00 for repayment of a $48,000.00 loan made by the corporation. The spreadsheet of itemized expenses of the New York office and offered by Ms. Lichtman as proof of amounts loaned has no apparent correlation to a spreadsheet prepared by Ms. Lichtman purporting to show checks and cash amounts transferred to New York.5/ In January 2011, Ms. Teresa Ebech, the listing agent for the property with First United Realty, took another contract for the Royal Palm property to Ms. Pollio. This contract referenced a $40,000.00 deposit and listed “Luxury Property Mgt. Escrow” as the escrow. This contract indicated a total purchase price of $55,000.00, and called for a February 21, 2011, closing date. Ms. Pollio signed the contact. The closing did not occur. Ms. Pollio decided to stop trying to buy the property and get her money back. No other party ever acquired an interest or equity in the deposit. Ms. Pollio had difficulty getting in touch with Ms. Fiorello about getting her money back. When Ms. Pollio finally was able to ask Ms. Fiorello for a return of her deposit, Ms. Fiorello did not return it, but told Ms. Pollio that she should get it from Ms. Lichtman. On or about April 28, 2011, Ms. Pollio, with help from her friend, Ms. Joyce Watson, prepared a letter to cancel the contract. The letter noted that the $40,000.00 had been in escrow for over a year and stated that due to the inability of Luxury Realty Partners to close on the property, Ms. Pollio requested immediate return of the deposit. The letter was sent to Catherine Lichtman at the Luxury Realty Partners, Inc., address. Ms. Lichtman’s testimony that she never received the letter is discredited. Ms. Ashford, another real estate sales associate at the corporation, had never met Ms. Pollio, but was in the Luxury Realty Partners, Inc., office one day in May of 2011 when Ms. Pollio came in with her husband. Ms. Ashford testified: She came in with her husband pretty much screaming and yelling from the minute she stepped foot in the door. She was very angry, very upset. I looked at her and said, you know, Ma’am please calm down. She said I’m not calming down. She pointed at Cathy, she said she knows exactly why I’m f’in here. This has nothing to do with you. Ms. Lichtman asked Ms. Ashford to call her husband, which Ms. Ashford did, thinking this was unusual because he never had anything to do with what went on at the office. Ms. Pollio yelled at Ms. Lichtman, and Ms. Lichtman yelled back, each becoming more and more agitated. Ms. Lichtman then left the room and locked the door. The police were called, though Ms. Ashford was not sure if it was Ms. Pollio or her husband, or perhaps Ms. Lichtman’s husband, who called them. Ms. Ashford testified that when the police officer arrived, Ms. Lichtman lied and told him that her name was Victoria. The officer tried to calm both parties, and told them it was a civil matter. The police officer finally persuaded Ms. Pollio and her husband to leave. Ms. Ashford testified as follows about the conversation that took place between Ms. Lichtman and Ms. Ashford after Ms. Pollio left: Q What did you say? A I asked her point blank what the hell was going on and she responded. Q What did she respond? A That yes, she had her money. The money was-– Q When you said her money. What-–what are talking about? A She had Jennie’s money. Q She-- A It was a deal, a transaction. “She came into our office with cash coming out of her boobs and I don’t have to give it back.” Were her words. Q Did you tell Cathy that she had to return the money? A Yes, I did. I said “Cathy, its escrow money, it doesn’t matter where she got it from,” and Cathy went on about “it’s illegal she’s a dancer, she’s on Section 8. I’m going to report it to the IRS. She thinks she buying a f’in house.” Ms. Lichtman’s admission to Ms. Ashford after Ms. Pollio left showed that Ms. Lichtman knew that she had money in her possession that had been given by Ms. Pollio to buy a house. Ms. Ashford testified that she was upset, as an agent with the corporation, about what appeared to be going on. She and Ms. Fiorello met with Mr. Davis in April of 2011. Ms. Fiorello told Mr. Davis that Ms. Lichtman had stolen funds. Mr. Davis reviewed the January contract that Ms. Fiorello gave him, and concluded that it didn’t make much sense. He had not given any authorization to place escrow funds into the Luxury Property Management, LLC, account. He did not have access to that account or to any of the corporation’s operating accounts to determine if money was missing. After the meeting, Mr. Davis asked Ms. Lichtman what she knew about the accusation. Ms. Lichtman denied that she took any money from an escrow account. Mr. Davis called the Florida Real Estate Commission and reported the incident. At some point, Ms. Lichtman advised Ms. Pollio that the cancellation letter was not sufficient, and provided Ms. Pollio with a “Release and Cancellation of Contract for Sale and Purchase” form. Mr. Laventura signed the form in June 2011, and Ms. Pollio signed the form when she returned it to Ms. Lichtman at the Luxury Realty Partners, Inc., office. The form released Luxury Partner Realty from liability and indicated that the escrow agent should disburse all of the $40,000.00 deposit to Ms. Pollio. At the time of the final hearing, Ms. Pollio had yet to receive her $40,000.00 deposit back. The testimony and documentary evidence in this case clearly demonstrates a recurring and systematic disregard of the legal entities and procedures intended to provide structure and accountability to business and real estate transactions by both Ms. Fiorello and Ms. Lichtman. Ms. Fiorello and Ms. Lichtman employed a qualifying “broker” for the corporation, but intentionally assumed the responsibilities of that position themselves during the time relevant to the Administrative Complaints. In doing so, they each operated as a broker without being the holder of a valid and current active brokers’ license. No evidence was introduced at hearing to indicate that the professional license of either Ms. Fiorello or Ms. Lichtman has ever been previously subjected to discipline.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that final orders be entered by the Florida Real Estate Commission: Finding Linda Fiorello in violation of sections 475.25(1)(k), 475.25(1)(d), 475.42(1)(d), 475.42(1)(a), 475.25(1)(b), and 475.25(1)(a), Florida Statutes, as charged in the Amended Administrative Complaint, and imposing an administrative fine of $10,000.00, reasonable costs, and revocation of her license to practice real estate; and Finding Catherine A. Lichtman in violation of section 475.25(1)(d), Florida Statutes, as charged in the Administrative Complaint, and imposing an administrative fine of $1000.00, reasonable costs, and revocation of her license to practice real estate. DONE AND ENTERED this 11th day of June, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 11th day of June, 2015.
The Issue Whether Respondent violated section 475.25(1)(b), Florida Statutes, by committing fraud, misrepresentation, concealment, etc., or by violating a duty imposed upon him by law or by the terms of a listing contract and, if so, what is the appropriate penalty; Whether Respondent violated section 475.25(1)(d)1., by failing to timely account or deliver to any person any personal property such as money, funds, deposit, check draft, etc. and, if so, what is the appropriate penalty; and Whether Respondent, a sales associate, registered as an officer, director of a brokerage corporation, or general partner of a brokerage partnership is in violation of Florida Administrative Code Rule 61J2-5.016 and, if so, what is the appropriate penalty.
Findings Of Fact The Department is the state agency charged with regulating the practice of real estate pursuant to section 20.165 and chapters 120, 455, and 475, Florida Statutes. DOAH has jurisdiction, pursuant to section 120.574, to render a decision in this matter, which shall be final agency action subject to judicial review under section 120.68. Mr. Rivas is a licensed real estate sales associate, holding license number 3385508, issued by the State of Florida. Structure of the Brokerage Corporation On or about April 7, 2015, Respondent registered GREH with the State of Florida, Division of Corporations ("Division of Corporations"), identifying himself as the registered agent and manager of GREH. Respondent filed documents on behalf of GREH with the Division of Corporations on the following dates and identified himself with the following titles with GREH: On April 13, 2016, March 14, 2017, and April 17, 2018, Respondent identified himself as the registered agent, managing member, and president; On November 22, 2017, and April 17, 2018, Respondent identified himself as an authorized member; On April 22, 2019, Respondent identified himself as a registered agent, an authorized member, and managing member; On October 23, 2019, Respondent identified himself as registered agent and member; On November 27, 2019, Respondent identified himself as a registered agent, member, and manager; On December 6, 2019, Respondent identified himself as registered agent and shareholder; and On December 10, 2019, Respondent identified himself as registered agent. On March 23, 2017, GREH registered with the Florida Real Estate Commission ("Commission") as a real estate corporation in the State of Florida, having been issued license number CQ 1053189. At no time was Respondent registered with the Commission as a real estate broker in the State of Florida. From November 27, 2017, to October 3, 2019, Mr. Avila, who at that time was a real estate broker in the State of Florida, having been issued license number BK 3401612, was the qualifying broker of GREH. From October 3, 2019, to October 15, 2019, and from November 25, 2019, to December 9, 2019, GREH's license was invalidated due to it not having a qualifying broker. From October 15, 2019, to November 25, 2019, Gamila Murata was the qualifying broker for GREH. From December 9, 2019, to July 29, 2020, Mr. Henson was the qualifying broker for GREH. On August 22, 2019, without the authority of the qualifying broker for GREH, Respondent filed a civil action on behalf of GREH against Arnauld and Annelyn Sylvain (collectively, the "Sylvains") in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, in case number 502019CA008774XXXXMB, seeking, among other things, to recover real estate commissions allegedly claimed due by GREH and Respondent. Respondent subsequently retained attorney Monica Woodard to represent GREH in the civil proceedings, and GREH's complaint was dismissed. On or about November 19, 2019, the Sylvains filed a separate civil action against GREH in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, in case number 502019CC015230XXXXMB, seeking to recover a $10,000.00 escrow deposit. Respondent failed to inform the qualifying broker of record for GREH, Mr. Henson, who assumed that position shortly after the filing of the civil action, of the pending lawsuit. Respondent opened bank accounts on behalf of GREH, including an account called an "Escrow Account," which was controlled by Respondent and at no time was controlled by a qualifying broker for GREH. Respondent deposited escrow funds into the Escrow Account for GREH, without the authority of the qualifying broker for GREH. Respondent closed the Escrow Account held in the name of GREH and removed funds that were to be held in trust from the account without authority of the qualifying broker for GREH. Respondent controlled all communications regarding certain real estate transactions on behalf of GREH, without the knowledge or authority of the qualifying broker for GREH. Contract 1 On or about March 4, 2019, an "AS IS" Residential Contract for Sale and Purchase ("Contract 1") was entered into between the Sylvains, as buyers, and Frederick F. Breault and Evelyn Breault (the "Breaults"), as sellers, for property located at 16595 93rd Road North, Loxahatchee, Florida 33470 ("Subject Property 1"). Respondent facilitated Contract 1 on behalf of the Sylvains. Pursuant to the requirements of Contract 1, the Sylvains deposited $10,000.00 with GREH, to be held in escrow as the initial deposit. The escrow funds were delivered to Respondent in the form of a certified check drawn from SunTrust Bank in the amount of $10,000.00 and purchased by Mr. Sylvain on March 4, 2019 ("SunTrust Certified Check"). The $10,000.00 escrow funds were deposited into a bank account held in the name of GREH. The SunTrust Certified Check was deposited into a bank account over which Respondent had sole control. The GREH account in which the SunTrust Certified Check was deposited was at no relevant time controlled by a Florida licensed real estate broker. Contract 1 provided that the Sylvains had 20 days from the effective date to obtain loan approval ("Loan Approval Period"). Paragraph 18(F) of the Contract provided as follows: TIME: Calendar days shall be used in computing time periods. Time is of the essence in this Contract. Other than time for acceptance and Effective Date as set forth in Paragraph 3, any time periods provided for or dates specified in this Contract, whether preprinted, handwritten, typewritten or inserted herein, which shall end or occur on a Saturday, Sunday, or a national legal holiday (see 5 U.S.C. 6103) shall extend to 5.[:]00 p.m. (where the Property is located) of the next business day. Because 20 days from the effective date fell on a Sunday, the Loan Approval Period expired on Monday, March 25, 2019. Paragraph 8(b)(i) of Contract 1 provided that: "Buyer [the Sylvains] shall ... use good faith and diligent effort to obtain approval of a loan meeting the Financing terms ('Loan Approval') and thereafter to close this Contract." Paragraph 8(b)(v) of the Contract further provided that if neither party timely cancelled the Contract pursuant to paragraph 8, the financing contingency would "be deemed waived." Paragraph 8(b)(vii) finally provided that "[i]f Loan Approval has been obtained, or deemed to have been obtained, as provided above, and Buyer fails to close this Contract, then the Deposit shall be paid to Seller … ." The parties agreed to close Contract 1 by April 10, 2019. The Sylvains did not obtain final loan approval ("clear to close") within the Loan Approval Period. The loan was not denied for any of the exceptions set forth in paragraph 8(b)(vii), to release of the escrow deposit to the seller. The Sylvains did not terminate the contract within the Loan Approval Period. After the Loan Approval Period expired, the Sylvains sought to extend Contract 1, without consideration for the extension. The Breaults countered the Sylvains' request to extend with an offer that an extension would be granted for consideration that the Sylvains agree to forfeit the earnest money deposit. The parties never reached an agreement to extend Contract 1 and Contract 1 failed to close. On or about May 2, 2019, the Sylvains's loan application for Contract 1 was denied. On May 8, 2019, the Breaults executed a Release and Cancellation of Contract demanding release of the $10,000.00 escrow deposit on Contract 1, which Respondent received by email on that date from Betty Khan, the sales associate representing the Breaults. The Sylvains also executed a Release and Cancellation of Contract seeking return of the $10,000.00 escrow deposit on Contract 1, which Respondent communicated to Ms. Khan on May 8, 2019. Also, on May 8, 2019, Respondent informed the Sylvains of the Breaults's claim on the earnest money deposit. Despite knowing that there were conflicting demands for the escrowed funds, Respondent failed to inform Mr. Avila, the qualifying broker for GREH at the time, or the Department, of the escrow dispute. The Breaults were never informed of any escrow dispute filed with the Department, were never sued in relation to the escrow deposit, and never went to mediation or arbitration with regard to the escrow deposit, despite making a demand for the escrow deposit. Respondent claimed that he applied the $10,000.00 escrow funds to another contract under which the Sylvains were buyers. Respondent closed the GREH Escrow Account, removing the $10,000.00 from the account, without consent of either the Sylvains or the Breaults. Contract 2 On or about May 2, 2019, an "AS IS" Residential Contract for Sale and Purchase (Contract 2) between the Sylvains, as buyers, and the Mossuccos, as sellers, for property located at 7584 Apache Boulevard, Loxahatchee, Florida 33470 ("Subject Property 2"). Respondent facilitated Contract 2 on behalf of the Sylvains. In relation to Contract 2, specifically paragraph 2(a), which required an earnest money deposit in the amount of $10,000.00, Respondent requested that the Sylvains provide him a check in the amount of $10,000.00 to show the Mossuccos. On or about May 6, 2019, the Sylvains then drew a check from a business account held with TD Bank in the amount of $10,000.00 and payable to Global Business Financial Investment ("TD Bank Check"), which the Sylvains delivered to Respondent. Respondent took a photograph of the check and promised the Sylvains that the check would not be cashed or deposited. On or about May 6, 2019, Miledy Garcia, now known as Miledy Rivas, Respondent's spouse, a Florida licensed real estate sales associate, having been issued license number SL 3383271, issued an escrow deposit receipt for $10,000.00 for Contract 2 on a GREH form ("May 6, 2019, GREH Receipt"). The TD Bank Check was never deposited or cashed by Respondent; rather, the Sylvains immediately issued a stop payment order on the check to TD Bank. Despite having never deposited the TD Bank Check, Respondent communicated the May 6, 2019, GREH Receipt and a photo of the TD Bank Check to Mrs. Mossucco and Ms. Weintraub. The $10,000.00 escrow funds from Contract 1 were the escrow funds represented on Contract 2. Respondent represented that the $10,000.00 escrow funds were applied to Contract 2, prior to cancellation of Contract 1, and continued to represent the same, even after Respondent knew the Breaults were making a claim against the funds. Contract 2 failed to close. After Contract 2 failed to close, the Mossuccos and Sylvains agreed to cancel Contract 2 and release each other from liability under the terms of Contract 2, and further agreed that any earnest money deposit could be returned to the Sylvains. Respondent failed to deliver the escrow funds to the Sylvains. Rather, Respondent believed that the funds belonged to him (or one of his companies) and that he was entitled to remove the escrow funds and use them as he (or his company) saw fit. Respondent testified that he submitted a notice of escrow dispute, dated "9-30-2019," to the Department, identifying the parties to the transaction as the Mossuccos and the Sylvains, and the subject property as 7584 Apache Boulevard, Loxahatchee, Florida 33470. Respondent gave conflicting testimony, including, for example: First testifying that he believed the $10,000.00 escrow funds belonged to him (or his company) to be spent as he saw fit; then, after a break in the proceedings and on re-direct by his counsel, changing his story by saying that counsel for Petitioner put words in his mouth and that he meant only that there was a "dispute on the funds." First testifying that Mr. Avila was a signatory on the GREH "Escrow Account," then admitting that Mr. Avila was not a signatory on the account. There was also conflicting testimony between Respondent and several of the witnesses; however, where there were inconsistencies, Petitioner's witnesses' testimony was substantially consistent and supported by the documentary evidence presented. Parts of Respondent's testimony were inconsistent with documentary evidence admitted into evidence by stipulation of the parties. Facts Concerning Aggravation or Mitigation of Penalties Respondent collected escrow funds and deposited them into an account that he, only a licensed real estate sales associate, controlled, rather than one that was controlled by the qualifying broker for GREH. Respondent admittedly removed escrow funds in the amount of $10,000.00 from the bank account in which they were deposited, without all parties having a claim to the escrow funds executing a release. Respondent testified that he believed the escrow funds belonged to him (or one of his companies) and that he had a right to do with the funds as he (or he through one of his companies) saw fit. Respondent used vulgar language, threats, and demeaning language toward his clients, other real estate professionals, and title agents to attempt to coerce those individuals into submitting to his demands. Respondent failed and refused to comply with the direction of the qualifying broker with supervisory responsibility over Respondent and GREH. Respondent failed to keep the qualifying broker of GREH apprised of the real estate transactions in which Respondent was involved. There was significant testimony establishing that Respondent was performing tasks that are only allowed to be performed by a licensed real estate broker, not a real estate sales associate, mortgage broker, or mortgage loan originator. Additional Facts Raised by Respondent In his proposed conclusions of law, Respondent raises, as a matter of fact, that the "Department failed to plead sufficient facts underpinning its argument" regarding the handling of escrow funds. In paragraph 25 of his Proposed Final Order, Respondent states: Nowhere in the administrative complaint does the Department allege that Mr. Rivas falsely represented that GREH received the TD Bank Check as earnest money for Contract 2, or that he falsely represented to the Sylvains that the Breaults did not have a legitimate claim against the $10,000.00 escrow funds deposited by the Sylvains toward Contract 1, or that he misrepresented to the Sylvains that the $10,000.00 funds from the SunTrust Certified Check could be and were applied to Contract 2. Respondent further argued that none of the "facts relevant to aggravation or mitigation" set forth in the Department's Proposed Final Order were pled in the A.C., in violation of Respondent's due process rights. Both of these arguments are rejected as set forth in paragraphs 108 and109 below. Additional Facts Concerning Department Costs The Department presented competent evidence that it incurred investigative costs in the amount of $1,551.00.
Findings Of Fact At all times relevant hereto, Respondent Charles Randolph Lee was the holder of a Florida real estate license number 0455641 in accordance with Chapter 475, Florida Statutes. The license issued was as a broker, c/o Show-N-Save of West Palm Beach, Inc., 1800 Forest Hill Blvd., West Palm Beach, Florida 33406. Christopher and Lee Ann Germano made a written offer to purchase Lot 41, Block 72, Sugar Pond Manor, Palm Beach County, Florida (the "construction site") from Charles and Ruby Collins (the "owners") by executing a Contract for Sale and Purchase of the construction site on April 14, 1987, and submitting a check for $500 payable to and held in escrow by Hank Keene Real Estate Escrow Account. 1/ On April 15, 1987, the Germanos executed an Agreement for Construction of a house that was to be constructed on the construction site by J. Long Construction, Inc. A check payable to J. Long Construction, Inc., in the amount of $3,755, was submitted by the Germanos with the Agreement for Construction, which was expressly contingent upon the Germanos' purchase of the construction site. The check to J. Long Construction, Inc., was an escrow check to be held in escrow for the Germanos until contingencies in the Agreement for Construction, including the purchase of the construction site, either failed to occur or were satisfied. Carol Pearson and Terry Gallagher, the sales agent for Hank Keene Real Estate, were present with the Germanos in a model home of J. Long Construction, Inc., when the Germanos wrote the check, and it was their collectively stated intent that the check was to be held in escrow pending the completion of the purchase of the construction site. The check for $3,755 was labeled by the maker as an escrow down payment for construction of the house. 2/ J. Long Realty, Inc., and Hank Keene Real Estate were acknowledged in the Agreement for Construction as the exclusive brokers in the transaction with commissions to be paid respectively in the amounts of 3.5 and 1.5 percent. 3/ The Agreement for Construction was executed by J. Long Construction, Inc., on April 15, 1987. The Agreement for Construction was null and void if not executed by both parties on or before April 19, 1987. The Germanos executed the Agreement on April 15, 1987. Their copy of the Agreement is not executed by J. Long Construction, Inc. However, the original Agreement, bearing a date of April 15, 1987, shows the signature of the president of J. Long Construction. The original Agreement was admitted by stipulation as Respondent's Exhibit 2. Insufficient evidence was presented to establish that the original was executed at any other time or by any one other than the purported signatory. 4/ Respondent began functioning as the broker for J. Long Realty, Inc., on or about April 16, 1987, 5/ at the request of the previous broker who resigned due to illness on April 15, 1987. The Contract for Sale and Purchase of the construction site was rejected by the owners on April 16, 1989. 6/ The rejection was communicated to the Germanos telephonically by Terry Gallagher on the same day. 7/ The fact that the purchase of the construction site had failed to occur was communicated to Respondent on April 20, 1987, and return of the check to J. Long Construction, Inc., in the amount of $3,755, was requested at that time. Mr. Germano telephoned Mr. Pearson on April 20, 1989, advised him that the offer to purchase the construction site had been rejected by the owners, and requested return of the check. Mr. Pearson testified that upon receiving a telephone call from Mr. Germano, Mr. Pearson communicated those facts to Respondent. Mr. Pearson further testified that Respondent stated there would be no problem but required the request for refund and reasons to be stated in writing. Respondent first knew of the transaction when he received a telephone call from Mr. Germano asking for a return of the check. Respondent further testified that he opened the file, saw the check, and deposited it. The check was deposited on April 21, 1987, to the account of J. Long Construction, Inc. 8/ Respondent testified that the check was not deposited to any account of J. Long Realty, Inc. 9/ J. Long Construction, Inc., had no escrow account at the time of the deposit. Testimony by Ms. Fischer, and Petitioner's Exhibits 7 and 9 established that J. Long Construction, Inc., had no escrow account at the time of the deposit. There was no evidence that Respondent was an officer or director of J. Long Construction, Inc., or that Respondent was authorized to sign on the account to which the check was deposited. Petitioner's Exhibit 9 established that Respondent was authorized to sign on the account of J. Long Realty, Inc., and on the account of J. Long Companies, Inc. Neither the name or account number of either of those accounts corresponded to the name or account number of the account to which the check was deposited. 10/ Respondent functioned in the capacity of accountant, bookkeeper, and employee of J. Long Construction, Inc., prior to functioning as the broker of J. Long Realty, Inc. Respondent and Mr. Long reviewed each contract submitted by sales agents. Respondent received written notice on April 27, 1987, and on May 1, 1987, that the Germanos' offer to purchase the construction site had been rejected by the owners. Jean Keene, Broker, Hank Keene Real Estate, advised J. Long Construction, Inc., by letter dated April 24, 1989, that the Germanos' offer had been rejected and that the $500 in escrow had been returned to the Germanos. 11/ The Germanos also wrote a letter to J. Long Construction (sic) on April 24, 1987, asking for return of the deposit because their offer to purchase the construction site had not been accepted by the owners. The Germanos' letter was by return receipt which was dated May 1, 1987. A letter dated May 11, 1987, from Robert E. Zensen, President, Zensen Homes, Inc., formerly J. Long Construction, Inc., 12/ advised the Germanos that they were in default under the Agreement for Construction. The letter stated the "default has been established by the contingency not being met," but in the next paragraph required documentation that the contingency had not been met. 13/ On May 8, 1987, Carol Pearson removed his license from J. Long Realty, Inc. 14/ Evidence suggests some acrimony between Mr. Pearson and Respondent concerning the conduct of business transactions at J. Long Realty, Inc. 15/ Mr. Pearson testified that deposits were not being returned to customers who were entitled to return of their deposits. On May 16, 1987, Mary E. Bartek, citing ill health, resigned from J. Long Realty, Inc., as Broker-Salesman and as shareholder, and resigned her position as Vice-President, director, shareholder, officer, or agent from J. Long Companies. 16/ On June 15, 1987, Respondent resigned as "Broker of Record" for J. Long Realty, Inc. 17/ The Germanos made numerous requests to Respondent to return their check in the amount of $3,755. Mr. Pearson received at least 3 or 4 calls from the Germanos. Each time Respondent and Mr. Long agreed that the Germanos were entitled to have their check; except the last time when Mr. Long told Mr. Pearson to "forget about it." Mr. Pearson testified that it was his impression that Mr. Long prevented Respondent from returning the check. The Germanos made numerous requests to Mr. Pearson for return of their check. Each time Mr. Pearson stated that Respondent had said he would return the check. On one occasion, Lee Germano met with Respondent to request that the money be returned, but the money was not returned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of: culpable negligence and breach of trust in violation of Subsection 475.25(1)(b); failure to account and deliver nonescrowed property upon demand of the person entitled to such property in violation of Subsection 475.25(1)(d); and failure to place a check in escrow in violation of Subsection 475.25(1)(k). Since this was apparently Respondent's first offense, involving a single act, it is recommended that Respondent be reprimanded. Since the offense involved the misuse of funds, disregard of the entitlement to funds, and Respondent offered no evidence of restitution, it is recommended that Respondent be fined $1,000 for each violation. In order to enhance Respondent's regard for the entitlement to funds in business transactions and in order to facilitate due care in his future transactions, it is recommended that Respondent be placed on probation for a period not to exceed one year. The conditions of probation may include any of those prescribed in Florida Administrative Code Rule 21V-24.001(2)(a) except those that would require the Respondent to submit to reexamination and to be placed on broker-salesman status. In the event that Respondent fails to pay any fines imposed or to complete the terms of any probation imposed, it is recommended that Respondent's license be suspended for two years. DONE and ENTERED this 19th day of June 1989, in Tallahassee, Florida. DANIEL MANRY 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 19th day of June, 1989.
The Issue The issues are whether Respondent is guilty of issuing checks from his escrow account without sufficient funds so as to constitute culpable negligence, breach of trust, misrepresentation, or concealment, in violation of Section 475.25(1)(b), Florida Statutes; failing to reconcile escrow accounts, in violation of Section 475.25(1)(e) and (k), Florida Statutes, and Rule 61J2-14.012, Florida Administrative Code; employing an unlicensed person, in violation of Section 475.42(1)(c), Florida Statutes; failing to maintain business records, in violation of Section 475.5015, Florida Statutes; and violating a lawful order of the Florida Real Estate Commission by failing to pay a citation within the required time, in violation of Section 475.25(1)(e), Florida Statutes. If Respondent is guilty of any of these allegations, an additional issue is the penalty that should be imposed.
Findings Of Fact Respondent became a licensed real estate salesperson in 1987. The following year, he became a licensed real estate broker, and he has remained a broker continuously since that time. From September 30, 1996, through January 30, 2000, Respondent was the qualifying broker of Express Realty and Investments, Inc. (Express Realty). At no time relevant to this case was Novellete Faye Hanse a Florida-licensed real estate broker or real estate salesperson. At all relevant times, Ms. Hanse was the office manager of Express Realty. Respondent formed Express Realty in 1995. Respondent was the sole director and president. Ms. Hanse's son was an officer of Express Realty from the time of its formation. Respondent met Ms. Hanse in 1991. She informed Respondent that she was a licensed mortgage broker. Respondent and Ms. Hanse agreed in late 1991 to form a joint real estate/mortgage broker operation in a single office. However, when Hurricane Andrew struck in 1992, Respondent, who has been a licensed general contractor since 1978, engaged exclusively in construction until 1995. Respondent formed Express Realty to pursue the prior plan of a joint real estate/mortgage broker operation. The two businesses occupied an office building owned by Ms. Hanse, who did not charge Respondent's business any rent. The address was 6306 Pembroke Road in Miramar. Express Realty served as an escrow agent in a contract dated May 9, 1999, for the sale and purchase of real property located at 6360 Southwest 23rd Street in Miramar. In this capacity, Express Realty, held various funds in escrow for the closing. For the closing, Express Realty issued two checks payable to the closing agent, totaling $19,169.08, and drawn on its escrow account. The checks, which are dated July 15, 1999, and signed by Ms. Hanse, bear the name, "Express Realty & Investments, Inc. Escrow Account" and bear the address 6306 Pembroke Road in Miramar. The bank failed to pay these checks due to insufficient funds. After receiving a complaint that Express Realty had failed to produce these escrow funds at the closing, Petitioner's investigator conducted an audit of Respondent's escrow account. At the audit, which took place the day prior to the day scheduled, the investigator found Ms. Hanse, but not Respondent, at the Express Realty office. Despite repeated requests on and after the day of the office visit, the investigator could not obtain relevant records from Ms. Hanse or Respondent concerning the real estate transaction for which Express Realty had issued escrow checks with insufficient funds. On August 23, 1999, the Florida Real Estate Commission issued a citation to Respondent at 6306 Pembroke Road in Miramar. The citation was served on Respondent within one week of the date of issuance. The $100-citation was for the failure to give the required disclosure or notice in a real estate transaction. The citation gave Respondent 30 days to contest the citation or 60 days to pay the citation. After the deadline, the investigator contacted Respondent and asked him about the citation. Respondent stated that he had forgotten about it. When Respondent still failed to pay the citation, the investigator called again, and Respondent stated that he had mailed the money, but it had been returned due to a faulty address. Respondent paid the citation approximately four months after it had been served on him. Shortly after Respondent belatedly paid the citation, Petitioner received another complaint concerning a contract for the sale and purchase of real property located at 850 Southwest 9th Avenue in Hallandale. In this transaction, Ms. Hanse represented herself to be a licensed real estate broker, showed the property to prospects, and accepted $5000 in escrow on behalf of Express Realty. In July 2000, Petitioner's investigator conducted an audit of Express Realty's escrow account. Again, the investigator was unable to find any documents by which he could undertake an independent reconciliation of the account or otherwise document the role of Express Realty in the subject transaction. At the hearing, Respondent claimed that he was unaware that Ms. Hanse had been conducting real estate business without his authority in the name of Express Realty. Although he admitted that she was an employee of Express Realty, he disclaimed any knowledge that she had removed him from the escrow account and otherwise taken over the management of the real estate broker company. However, Respondent could not explain why, after his claimed discovery of these misdeeds in the summer of 1999, he did nothing to prevent Ms. Hanse from continuing to use Express Realty as the means by which to conduct unlicensed real estate activities, as she did a few months later. Under the circumstances, Petitioner proved that Respondent was at all times aware that Ms. Hanse was conducting unlicensed real estate activities through Express Realty.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of the allegations contained in Counts I-IV and VI of the Amended Administrative Complaint, imposing a $5000 administrative fine, and suspending his license for three years; provided, however, if Respondent fails to pay the fine in full within 180 days of the final order, his license shall be revoked without further notice. DONE AND ENTERED this 9th day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 9th day of July, 2002. COPIES FURNISHED: Jack Hisey, Deputy Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Dean Saunders, Chairperson Florida Real Estate Commission Division of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Carstarphen Watkins Senior Attorney Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Wayne Wagie 11900 North Bayshore Drive, Unit No. 5 Miami, Florida 33181
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, I make the following: The Defendant, Leroy Wilson, is a registered real estate broker with the Commission and during January 1, 1975 to November 5, 1975, Defendant was registered as trading as Overpass Real Estate. On April 27, 1975, Defendant was the owner of residential property located at 291 N.W. 29th Terrace, Ft. Lauderdale, Florida. On April 28, 2/ Robert English and his wife Mazie English in response to a "for sale" sign posted at 291 N.W. 29th Terrace, Ft. Lauderdale, Florida, went to the real estate brokerage office maintained by the Defendant at room 201 Romark Building, 3521 West Broward Boulevard, Ft. Lauderdale, Florida. Defendant and Mr. and Mrs. English discussed and negotiated a deposit receipt contract dated April 28, 1975, between the Englishes as purchasers and Defendant as seller for the purchase and sale of property owned by Defendant located at 291 N.W. 29th Terrace. Mrs. English testified that they put up an earnest money deposit of $300 acknowledged by Defendant, however, Defendant executed the deposit receipt contract reflecting an earnest money deposit of $600. (See FREC Exhibit number 2). Mrs. English testified that part of the terms of the contract was that she would apply for a mortgage loan but when it was determined that her daughter who was to participate with her in the purchase, was not able to stay with her, she and her husband decided not to apply for a mortgage loan. She explained to Defendant and he agreed to return the $300 deposit that she had submitted along with the deposit receipt contract. When the Englishes demanded the return of their deposit, Defendant advised them that "it was the law that the deposit must be kept for 6 weeks, and thereafter, he would have to keep the deposit another ten days." After the expiration of the six week period, the Englishes called the Defendant's office and was advised that he no longer lived there and other efforts by the Englishes to contact the Defendant were fruitless. Thereafter on or about August 20, 1975, the Englishes filed a complaint with the Commission. Approximately two days after the Commission initiated its investigation, the Defendant returned the $300 deposit to the Englishes. (See FREC Exhibit number 3). N.B. Wolf an employee of Gulf Atlantic Mortgage Brokers testified that she was familiar with the document received into evidence as Exhibit number 2 which is the deposit receipt contract entered into by the Defendant and the Englishes. She testified that she did not recall ever having taken a credit application for the Englishes to apply for a mortgage loan. Roy E. Conner, the operations officer for Plantation First National Bank testified that he caused to be gathered the bank records as they relate to the escrow account maintained by the Defendant at that bank. An examination of those bank records revealed that the Defendant's escrow bank account maintained at Plantation First National Bank had a shortage of $5 as of September 16 and that on August 14, his escrow bank account showed a balance of $65 when it should have reflected a balance of $300 in earnest money deposits. See FREC Exhibit number 4 received into evidence. Pruyn investigated Defendant's brokerage office on September 16, at 2951 N.W. Avenue, Ft. Lauderdale, Florida. Based on an official inspection, Pruyn noted a number of inadequacies in that there were no letterheads, no desks, no chairs, no business mail, no diary of witnesses or any official sign as required and set forth in Commission Rule 21V-10.07 and 10.09, Florida Administrative Code and Section 475.22, Florida Statutes. See FREC Exhibit number 5 received into evidence. As previously stated, the Defendant did not appear at the hearing nor did he have a representative present to present any defense to the charges made by the Commission in the administrative complaint.
