Findings Of Fact Defendant Jo Tricoli Realty, Inc. was a registered real estate corporate broker, holding Certificate No. 0089973 until August 18, 1976, at which time its Articles of Incorporation were amended to change the name of the business to Tricoli Realty, Inc.; Josephine L. Tricoli is a registered real estate broker, Certificate No. 0089966; Defendant Anthony F. Tricoli is a registered real estate broker, Certificate No. 0089956; and Defendant Phyllis B. Ludwigsen is a registered real estate salesman with Certificate No. 0114963. The Defendant's address registered with the Commission is 1550 West 84th Street, Hialeah, Florida, 33014. At all times material hereto, Defendants Josephine L. Tricoli and Anthony F. Tricoli were brokers and active firm members of Tricoli Realty, and Defendant Phyllis B. Ludwigsen was an active salesman employed with the same firm. On September 25, 1975, Mr. and Mrs. Hartley Kroul viewed an apartment at 15416 Sharpecroft Drive, Miami Lakes, with Defendant Phyllis Ludwigsen of Tricoli Realty, the broker in the transaction. Thereafter, a lease was prepared by Defendant Ludwigsen, based upon instructions from the owner of the property. The lease was prepared on a form furnished by Tricoli Realty, was prepared in a branch office of Tricoli Realty, was witnessed by Defendant Ludwigsen and the manager of the branch office of Tricoli Realty, and was signed by the parties on September 25, 1975. A clause typed into the lease provides that the first and last months rent, together with a security deposit of $450, for a total of $1,350, was to be held in escrow by Tricoli Realty, and Tricoli Realty did, in fact, receive a check for $1,350 for Kroul in accordance wit this clause of the lease agreement. The lease was for a one-year term, and expired on September 26, 1976. Notwithstanding the provision of the lease concerning the escrow deposit, within two or three days after September 25, 1975, Defendant Tricoli Realty , by a check signed by Defendant Anthony Tricoli, disbursed $900 of the escrow monies to the lessor-property owner. The additional $450 was retained by Tricoli Realty as a commission. Defendant Anthony Tricoli did not review the terms of the lease before disbursing the $900, although the lease was located in a branch office of Tricoli Realty, and could easily have been examined prior to disbursement. The Krouls vacated the premises after the expiration of the lease and thereafter sought refund of the security deposit from Tricoli Realty. A demand for a refund of the security deposit was made upon Defendant Anthony Tricoli, but he refused to refund the security deposit and advised the Krouls to seek the refund from the property owner. Thereafter, the property owner returned $290 of the security deposit to Tricoli Realty, claiming certain expenses incurred after vacating the premises. Tricoli Realty then attempted to refund the $290 to the Krouls, who refused to accept that offer in settlement of their claim for the entire security deposit. The Krouls eventually resorted to a court of competent jurisdiction for refund of their security deposit, where the issue of civil liability was ultimately resolved. The Krouls never authorized Tricoli Realty, Josephine L. Tricoli, Anthony F. Tricoli, Phyllis B. Ludwigsen, or any other representative or employee of Tricoli Realty to disburse $900 of the escrow money to the property owner prior to the expiration of the lease. No testimony was offered that Defendant Josephine L. Tricoli was in any way involved in, or had any knowledge of, the Kroul transaction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Florida Real Estate Commission dismissing the Complaint against Defendant Josephine L. Tricoli. That a Final Order be entered by the Florida Real Estate Commission dismissing Count 3 of the Complaint against Defendant Anthony F. Tricoli. That a Final Order be entered by the Florida Real Estate Commission suspending the registration of Defendant Phyllis B. Ludwigsen for a period of three months. That a Final Order be entered by the Florida Real Estate Commission suspending the registration of Defendant Tricoli Realty, Inc. for a period of six months. That a Final Order be entered by the Florida Real Estate Commission suspending the registration of Defendant Anthony F. Tricoli for a period of six months. DONE AND ENTERED this 15rd day of February, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAIL: Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Staff Counsel Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Pearl R. Ferer, Esquire 304 Concord Building 66 West Flagler Street Miami, Florida 33130
The Issue The issues in this case include whether Respondent is guilty of having committed culpable negligence in a business transaction or failed to maintain trust funds in a proper account until disbursement was authorized and, if so, the appropriate penalty.
Findings Of Fact Respondent has been a licensed real estate broker in the State of Florida since 1983 and holds license number 0405933. His most current license was as a broker trading as Realty Trend. Respondent started Realty Trend in 1985 for the primary purpose of managing rental properties. Although he had little or no training or experience in accounting, Respondent retained considerable responsibility for the day-to- day bookkeeping associated with his business, though at times he employed a bookkeeper. Respondent maintained one account for sales transactions, in which he participated as the broker, and one account for property management activity. Respondent participated in few sales transactions and is phasing out of that part of the business. All escrow monies held by Respondent were kept in interest-bearing accounts. Although Respondent retained the interest, he disclosed this fact to the parties through the sales contract. Within about 18 months, Respondent had acquired about 100 properties to manage. Respondent decided to automate the bookkeeping and purchased a computer program that would write checks, track income and expenses, generate reports, and generally handle all aspects of bookkeeping. The program was designed to assist in property management operations. Emphasizing service to property owners, Respondent had always tried to send his checks for rent collected the past month between the tenth and fifteenth of each month. By August, 1989, Respondent had been warned by Petitioner that he had to allow two or three weeks for tenant's checks to clear and determine what emergency maintenance expenses might be incurred. Through a combination of ignorance about bookkeeping, his responsibilities as a broker holding escrow monies, and the property management computer program, Respondent mishandled his trust account. His repeated bookkeeping errors and failure to take corrective action allowed a sizable shortage to accumulate by the time Petitioner conducted a routine office audit on November 17, 1989. Respondent cooperated fully with the audit and promptly provided Petitioner's investigator with a box full of bank statements. His account was reaudited on January 8, 1990. Poor bookkeeping prevents a precise determination of the shortage, but it exceeds $10,000. It is difficult to understand how Respondent's books became so confused as to become nearly worthless. There was no evidence of fraudulent intent. It appears as likely that Respondent overpaid property owners as that he overpaid himself. Respondent's ongoing ignorance of his serious trust account shortages or, in the alternative, repeated failure to solve recognized trust account shortages represents culpable negligence. Even by the time of hearing, Respondent candidly admitted that he could not provide an accurate figure for the shortage and had not yet been able to repay the deficiency, although he intended to do so.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order reprimanding Respondent; imposing an administrative fine of $500; requiring Respondent to complete an approved 60-hour course; suspending his license for a period of six months, commencing retroactive to the date on which Respondent cease operations due to the emergency suspension; and placing his license on probation for a period of three years following the conclusion of the suspension, during which time Respondent shall file escrow account reports with the Commission or other person designated by the Commission at such intervals as the Commission requires. DONE and ORDERED this 8 day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 8 day of October, 1990. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Attorney Steven W. Johnson Division of Real Estate Florida Real Estate Commission 400 W. Robinson St. Orlando, FL 32801-1772 Thomas I. McIntosh 13542 N. Florida Ave. Tampa, FL 33613 Attorney Neil F. Garfield Envirwood Executive Plaza, Suite 200 5950 West Oakland Park Blvd. Lauderhill, FL 33313 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact At all times relevant hereto, respondent, Annette J. Ruffin, held real estate broker license number 0076385 issued by petitioner, Department of Professional Regulation, Division of Real Estate. When the events herein occurred, respondent was owner and broker for Century 21 A Little Bit Country at 915 Lithia Pinecrest Road, Brandon, Florida. She is presently employed by U. S. Homes Corporation in Tampa, Florida. James and Shirley Yaksic wished to sell their residence at 3512 Plainview Drive in Brandon, Florida. They listed their property with Century 21 Solid Gold Properties II, Inc. in Brandon in December, 1983. Deborah Cassidy was a salesman at respondent's office, and knew her parents, J. R. and Helen Anderson, were in the market for a new home. With Cassidy's assistance, the Andersons executed a contract on February 16, 1984, to purchase the Yaksics' residence. The contract called for a purchase price of $65,000 with a down payment of $10,000, including a $500.00 cash deposit which was given to respondent's firm several days after the contract was executed. The deposit was placed in Ruffin's escrow account on February 28, 1984. The Andersons were also required to seek VA financing on the balance owed. After the contract was accepted by the Yaksics on February 17, Helen Anderson made application on February 23 for a $55,000 VA loan with Norwest Mortgage, Inc., a lending institution in Tampa. Florida. Since her husband was in New York State, only Helen signed the loan application agreeing to allow verification of all representations made in the application. While filling out the loan application at Norwest, Helen Anderson learned that the Veterans Administration allowed applicants to apply for loans equal to 100% of the value of the property. Since the Andersons preferred to make no down payment, Helen Anderson wrote Norwest in early March requesting that their loan application be increased from $55,000 to $65,000. She also noted that she did not sign the "disclosure statement" on behalf of her husband since "it would be incorrect." In response to this Letter, Norwest wrote the Andersons in early April requesting a number of items needed to process the application as well as an amendment to the contract reflecting that the sellers agreed to 100% financing by the buyers. The Andersons did not respond to this inquiry. In addition, they never, advised the sellers that they had changed their loan application to 100% financing, and that the sellers would be required to pay more discount points at closing. Because no amendment to the contract was ever filed, Norwest processed the application for a $55,000 loan. Due to insufficient income and excessive obligations, the application was denied. The Andersons were so notified by letter dated May 3, 1984. After Helen Anderson received the denial letter she telephoned respondent's office manager on several occasions to seek a refund of her deposit. This information was apparently conveyed to Ruffin by the office manager. About the same time the sellers were advised by the listing salesman that the Andersons did not intend to close. On May 5, the sellers wrote a letter to Solid Gold requesting that it notify the selling broker to not "release the binder to the buyers as we are entitled to this money." For some reason, a copy of this letter was not mailed to respondent until May 31, and she received it in early June. Even though Ruffin may have been orally advised in early May of the Yaksics' intended claim by the listing office, she had no concrete evidence of this intention until she received their letter in early June. On June 29, 1984, Helen Anderson wrote respondent's office manager a letter requesting a return of her deposit no later than July 9. She also indicated the letter was being sent pursuant to instructions received from petitioner. On July 2, Ruffin replied by letter stating that "we cannot release your deposit as the house was off the market for such a long time," and that Norwest had advised her that the Andersons "did not bring in a lot of the information until it was too late." After Helen Anderson filed a complaint with the Department of Professional Regulation (DPR), DPR wrote respondent a letter dated July 19, 1984, stating in part that Anderson had been refused her deposit and that its records did not show that respondent had notified DPR of conflicting demands for that money. On July 30, 1984, respondent replied to DPR's inquiry and gave her version of the circumstances surrounding the transaction. After receiving no reply to this letter, she wrote a second letter in late December, 1984 to the Division of Real Estate (Division) requesting advice on the deposit matter. The Division sent a her form for requesting an escrow disbursement order on January 4, 1985 which was returned by respondent within a few weeks. An escrow disbursement order was eventually issued by the Division on April 19, 1985 directing her to refund the deposit to the Andersons. She did so on May 5, 1985. In conjunction with its investigation, DPR obtained copies of respondent's escrow account bank statements during the period when the Andersons' deposit was retained by Ruffin. Although the $500.00 deposit should have been maintained in that account from February, 1984 until disbursement in May, 1985, her account dropped below $500.00 on sixteen separate days during this period of time, and continuously from February 28 through April 30, 1985. Respondent, who has been a broker since 1977, maintained a record of all escrow deposits and expenditures in a ledger book which reflected when the Anderson money was deposited and when it was paid out. Although she inferred the problem may have been attributable to her bookkeeper, no adequate explanation was given as to why her bank balances dropped below $500.00 on a number of occasions. She acknowledged that she learned of the conflicting demands in May, 1984, but felt that she could still "solve" the credit problem of the Andersons. She stated that she intended to give notice to the Division of the conflicting claims on the deposit and needed no encouragement from the Division to do so. There is no evidence that respondent has ever been disciplined on any other occasion since first receiving her salesman license around twelve years ago.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the Conclusions of Law portion of this order. All other charges should be DISMISSED. It is recommended that respondent's broker license be suspended for ninety days and that she be fined $500.00. DONE and ORDERED this 5th day of September, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Bearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1985.
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated January 19, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the prehearing stipulation filed by the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of regulating and disciplining real estate licensees. The Respondent, Charles P. Grimes, is, and has been at all times material to the allegations of the administrative complaint, licensed as a real estate broker in the State of Florida, license number 0034301. In November, 1980, a contract for sale and purchase of real estate was drafted between Dorothy Langham Scott, seller, and Phillip Crawford, buyer. The contract, which was subsequently executed by both parties, provided that a deposit in the amount of $18,500 was to be held in escrow by Respondent. A separate brokerage agreement between Respondent and the seller, executed November 30, 1980, provided that Respondent would receive a brokerage fee of ten percent of the total gross sales price. The brokerage agreement specified that "should the buyer default and not close the transaction in accordance with the Contract, the Broker shall not be entitled to any commission." The agreement further provided that Respondent would "use reasonable diligence and his best efforts to see that the transaction is closed in accordance with the executed Contract." The contract described in paragraph 3 did not close. Subsequently, the seller sued Respondent in the Circuit Court in Palm Beach County, Case no. 82-1974 CA (L) 01 B. On August 13, 1985, an amended final judgment was entered which provided, in part: The facts adduced at trial indicate that Crawford and Scott entered into a contract for the purchase and sale of certain real property, located in Putnam County and that for no apparent reason Crawford defaulted on the contract. The evidence is clear and convincing and unrefuted. Crawford has admitted several letters which he says were communicated to the attorney for Scott. However, the substantial weight of the evidence will not support his repudiation of the contract. Accordingly, it is clear that as between Scott and Grimes, the real estate agent who was allegedly holding the deposit under the provisions of the deposit receipt contract, Scott is entitled to a judgment for $18,500.00, plus its costs and attorney's fees. John L. Burns, an attorney who represented the seller, Scott, during the contract negotiations in November, 1980- January, 1981, received a letter from Respondent on December 12, 1980. That letter, dated December 5, 1980, provided: "I have enclosed the signed contract and have received the deposit check from Dr. Crawford." On or about January 29, 1981, Mr. Burns received a letter from Respondent which indicated that the contract would close in March, 1981. Respondent did not advise the seller that the deposit on the Crawford/Scott contract was not in escrow. Respondent erroneously assumed that a deposit from the buyer (which had been deposited on another contract for sale and purchase) could be applied to the contract. That deposit, in the amount of $20,000.00, was not transferred and was not used to satisfy the amended judgment entered in Scott's favor.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Florida Real Estate Commission, enter a final order finding the Respondent guilty of the violation of Section 475.25(1)(b), Florida Statutes, imposing an administrative fine in the amount of $1000.00, suspending his license for a period of 60 days, and placing the Respondent on probation for a period of two years. It is recommended that the Respondent be found not guilty of the other alleged violations. DONE and ENTERED this 18th day of December, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1989. APPENDIX TO CASE NO. 89-2517 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 4 are accepted. With regard to paragraph 5, it is accepted that on or about November 30, 1980, Respondent was attempting to procure the contract described; however, the exact date the parties executed the contract is not known. The contract was ultimately executed by both parties but did not close. Consequently, the proposed fact, as written, is not supported by the record. Paragraphs 6 and 7 are accepted. With regard to paragraph 8, it is accepted that the contract did not close and that a court of competent jurisdiction determined that the deposit should be awarded the seller; otherwise, the paragraph is rejected as outside the scope of this record. Paragraph 9 is accepted but is irrelevant. Paragraph 10 is accepted. Paragraph 11 is rejected as irrelevant. Paragraph 12 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: James H. Gillis Senior Attorney Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Glenn M. Blake Blake & Torres, P.A. 200 South Indian River Drive Suite 101 Fort Pierce, Florida 34950 Darlene F. Keller Division Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. David B.C. Yeomans, Jr., is now and was at all times material hereto a licensed real estate broker having been issued license number 0163386. During times material, Respondent was the qualifying broker for G & A Realty and Investments, Inc., a corporation licensed as a real estate broker in the State of Florida. 1/ From approximately April 1985 to December 1985, Respondent Yeomans was the president and qualifying broker for G & A. Wilfredo Gonzalez, a licensed real estate salesman and Alberto Aranda were each 50 percent shareholders of G & A. Wilfredo Gonzalez, while licensed as a real estate salesman in the employ of G & A, solicited and obtained a client, Alfredo Susi, who made an offer to purchase a commercial property in Dade County, Florida. In connection with the offer, Alfredo Susi entrusted a $10,000 earnest money deposit with Wilfredo Gonzalez to be held in trust in G & A's escrow account. The seller rejected Susi's offer to purchase whereupon Alfredo Susi made demands upon Gonzalez for return of the earnest money deposit. Wilfredo Gonzalez attempted to return the earnest money deposit entrusted by Susi via check dated November 18, 1985 drawn on G & A's escrow account. Upon presentation of the subject check by Susi, it was returned unpaid due to non-sufficient funds. Alfredo Susi has been unable to obtain a refund of the deposit submitted to Gonzalez. Wilfredo Gonzalez used the deposit presented by Susi and did not apprise Respondent Yeomans of what or how he intended to dispose of Susi's deposit. Alfredo Susi had no dealing with Respondent Yeomans and in fact testified and it is found herein, that Susi's dealings in this transaction, were exclusively with Wilfredo Gonzalez. Tony Figueredo, a former salesman with G & A, is familiar with the brokerage acts and services performed by Respondent Yeomans and Wilfredo Gonzalez. During his employment with G & A, Figueredo had no dealing with Respondent Yeonans and in fact gave all escrow monies to Wilfredo Gonzalez. Carolyn Miller, the president and broker for Rite Way, Realtors, an area brokerage entity, is familiar with the customs and practices in the Dade County area brokerage operations. Ms. Miller considered it a broker's responsibility to supervise all salesman and to review escrow deposits and corresponding accounts approximately bimonthly. Theodore J. Pappas, Board Chairman for Keyes Realtors, a major real estate brokerage entity in Dade County, also considered it the broker's responsibility to place escrow accounts into the care and custody of a secretary and not the salesman. Mr. Pappas considered that in order to insure that funds were not misappropriated, checks and balances and intensive training programs would have to be installed to minimize the risk of misappropriation of escrow deposits. Mr. Pappas conceded however that it was difficult to protect against dishonest salesman. Respondent Yeomans has been a salesman for approximately eleven years and during that time, he has been a broker for ten of those eleven years. During approximately mid 1984, Respondent Yeomans entered into a six (6) month agreement with G & A to be the qualifying broker and to attempt to sell a large tract of land listed by Context Realty in Marion County (Ocala). When Respondent agreed to become the qualifying broker for G & A Respondent was a signator to the escrow account for G & A Realty. Sometime subsequent to Respondent qualifying as broker for G & A, Wilfredo Gonzalez changed the escrow account and Respondent Yeomans was unfamiliar with that fact. Respondent Yeomans first became aware of Susi's complaint during late 1985 or early 1986. Respondent Yeomans was not a signator on the escrow account where Wilfredo Gonzalez placed the escrow deposit entrusted by Alfredo Susi. (Petitioner's Exhibit 9) During approximately November, 1986, Respondent Yeomans made it known to the officers at G & A that he was withdrawing his license from G & A and attempted to get G & A's officers to effect the change. When this did not occur by December, 1986, Respondent Yeomans effectuated the change himself and terminated his affiliation with G & A. During the time when Respondent was the qualifying agent for G & A, there were approximately four employees and little activity to review in the way of overseeing real estate salespersons. During this period, Respondent Yeomans reviewed the escrow account for G & A that he was aware of. During the time that Respondent Yeomans was qualifying broker for G & A, he was primarily involved in the undeveloped acreage owned by Context Realty and other REO listed property of G & A. During the period when Respondent Yeomans was qualifying agent for G & A, Wilfredo Gonzalez spent approximately 95 percent of his time managing rental property that he (Gonzalez) owned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of June, 1987 in Tallahassee, Leon County, 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 9th day of June, 1987.
The Issue Whether or not the Respondent failed to immediately place, upon receipt, a five hundred dollar ($500.00) earnest money deposit entrusted to him (as a broker) into an escrow account in violation of Chapter 475.25(1)(k), Florida Statutes, and whether Respondent failed to account or deliver, upon demand from the depositors, the five hundred dollar ($500.00) earnest money deposit which was given to Respondent and which he was not entitled in law or equity to retain.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, post-hearing memoranda and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint signed approximately June 26, 1981, the Petitioner, Department of Professional Regulation (formerly Board of Real Estate and presently the Florida Real Estate Commission), seeks to suspend, revoke or take disciplinary action against Respondent, James E. Weiss, as licensee, and against his license as a real estate broker under the laws of Florida. Respondent, a real estate broker, has been issued license number 0094382 and was so licensed with Petitioner during times material herein. Respondent advertised a house for sale and Charles Raulerson, Jr., and his wife Rhonda, contacted Respondent to see about purchasing the house. Respondent advised Rhonda Raulerson that the house was owned by a James Spurgeon who would finance Raulerson's purchase of the house with a purchase money mortgage. The Raulersons were also to assume the existing mortgage in effectuating the purchase of the house within three (3) years pursuant to a contract for deed. To effectuate the purchase, Respondent and the Raulersons entered into a contract for the purchase and sale of the real estate which Respondent advertised. In connection therewith, Rhonda Raulerson gave Respondent a five hundred dollar ($500.00) cash deposit. (Petitioner's Exhibit No. 1) The deposit was received from Rhonda Raulerson on April 28, 1980, and is evidenced by a receipt from Respondent to Rhonda Raulerson on that date. During this period of time, the Spurgeons had agreed to purchase the subject property; however, prior to the time that the transaction for purchase was closed, the Spurgeons were transferred from the Duval County area to Fort Lauderdale, Florida. While it appears that the Spurgeons initially agreed to complete the purchase of the subject property, inasmuch as they had been approved for a purchase money mortgage with Duval Federal Savings and Loan Association, they later reconsidered and did not purchase the property. Therefore, the Raulersons were without a mortgage to assume as had been contemplated in their offer to purchase. The Raulersons were advised of the Spurgeons' decision not to close the real estate transaction to purchase the subject residence during July of 1980. The Raulersons thereafter immediately demanded that Respondent return their earnest money deposit. Respondent refused to return the Raulerson's deposit as demanded in their letter to Respondent dated December 6, 1980, and advised therein that the Spurgeons had not released their contractual rights pursuant to the deposit receipt contract and that the Raulersons should pay attention and review paragraphs 9, 23A and 23B of the deposit receipt contract. Respondent indicated to the Raulersons that he would submit their request for release of their deposit to the Spurgeons if he could locate them and obtain a release of the funds "which they have an interest"; that in the event the Florida Department of Professional Regulation would indemnify him from any loss arising from the Spurgeons' forfeiting (his) contract rights and if they (Raulersons) would dismiss, through the Department, their complaint which prompted Petitioner's investigation into the matter, he (Respondent) would be happy to disburse to them the Spurgeons' liquidated damages. (Petitioner's Exhibit No. 4.) In this connection, the Raulersons' initiated a complaint with Petitioner on approximately September 9, 1980. (Petitioner's Exhibits Nos. 5 and 6) Petitioner thereafter followed through by investigating the matter which resulted with an interview of Respondent on at least three (3) occasions during the period December through February, of 1980/81. As a result of those interviews by Petitioner's investigator, Robert Maxwell, Respondent submitted a request for an escrow disbursement order which was received by the Petitioner initially during mid-December of 1981. In the Petitioner's handling of Respondent's request for an escrow disbursement order, Respondent was advised of the following procedures which he should follow in instances wherein he either entertained doubt as to the proper disbursement of funds entrusted to him or had received conflicting demands respecting the disbursement of funds entrusted to him. The following procedures were outlined to Respondent: Request that the Board issue an escrow disbursement order which will advise you to whom to give the deposit; or With the consent of all parties, submit the matter to arbitration; or By interpleader or otherwise, seek adjudication of the matter by a court of competent jurisdiction. [Chapter 475.25(1)(d), Florida Statutes (1979). Subsequent to the demands by the Raulersons and Respondent's failure to return the earnest money deposit to the Raulersons, the Raulersons retained counsel and instituted a civil complaint in the Duval County Court (Case No. 81- 918CC, Division G) which resulted in a settlement of the matter through which the Raulersons issued a General Release to Respondent based upon the payment of consideration of the sum of five hundred dollars ($500.00). Additionally, the Raulersons, through their attorney, filed a notice of dismissal of the action with prejudice on approximately October 26, 1981. (Petitioner's Composite Exhibit No. 3) Respondent admits that he did not place the earnest money deposit received from the Raulersons into an escrow account for more than a year after receipt. That deposit by Respondent was not made until April 14, 1981, or one (1) day after Respondent met with Mr. Hoskins of the Petitioner's investigative unit. (Tr. 65 and Respondent's Exhibit No. 2) Respondent admits that the five hundred dollars ($500.00) was a cash deposit which, according to him, was left in his file through error and that it was not placed into an escrow account until April 14, 1981. (Tr. 73-74) Finally, Respondent contends that he failed to return the Raulersons earnest money deposit to them based on the advice of his attorney to the effect that the Spurgeons, pursuant to the deposit receipt contract, in fact had a contract interest in the deposit and without a release by the Spurgeons of such rights, the Spurgeons could turn to him (Respondent) and demand a return of the deposit. (Tr. 70-71) Respondent, in this regard, testified that he attempted to get releases from the Spurgeons via telephone and by three (3) written requests; however, no documentary or other supportive evidence was offered to support his claim in this regard. (Tr. 71)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent's license number 0094382 be suspended for a period of ninety (90) days. RECOMMENDED this 9th day of September, 1982, 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 9th day of September, 1982.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Diane M. Klein, nee Diane Marie Ballantyne, has been licensed by petitioner as a real estate broker at all pertinent times, holding license No. 0314120. Petitioner's Exhibit No. 6. On September 22, 1983, Winfield F. Imel signed a contract for sale and purchase of Arrowhead County Club, which is in Broward County, Florida, on conditions including the following: New financing mortgage: this agreement is contingent upon the buyers being able to obtain a new first mortgage. Buyers agree to immediately apply for said mortgage and to pay mortgage loan costs in obtaining same. Broker to receive written mortgage commitment on or before 20 days after acceptance of contract or contract is null and void. Petitioner's Exhibit No. 1. In this transaction, Ms. Klein represented the owner of the property as a real estate broker. The total purchase price was $1,950,000.00. The seller accepted the offer and executed the contract on September 23, 1982. On September 27, 1982, Mr. Imel signed a check in favor of respondent Klein indicating "ESCROW" and "re golf-COURSE." Petitioner's Exhibit No. 2. He delivered the check to Ms. Klein as earnest money under the contract he had signed on September 22, 1982. Ms. Klein deposited the check to her escrow account, No. 0002502307 at Florida National Bank, on September 28, 1982. Petitioner's Exhibit No. 5. Mr. Imel tried to obtain money, to be secured by a new first mortgage, from more than one lender. He approached "a group in Atlanta, IVA," (T.8), Mr. Frank Porter in Phoenix, and Vicars and Associates in Maryland, as well as local banks, including First Fidelity Mortgage Corporation in Palm Beach. Dexter B. Wakefield of First Fidelity Mortgage Corporation advised Mr. Imel in November of 1982 that First Fidelity's efforts to "broker a loan on his behalf for Arrowhead Country Club" (T. 9) had not succeeded. Petitioner's Exhibit No. 4. Mr. Imel sought money from First Fidelity not only in order to purchase the property, but also for "refurbishing." Petitioned's Exhibit No. 4. Be never succeeded in obtaining financing for the acquisition and wrote respondent to that effect, requesting "a full and immediate refund of my deposit in the amount of $5,000.00," on December 7, 1982. Petitioner's Exhibit No. 3. Respondent expressly declined to refund the deposit and has never paid Mr. Imel any of the money. On October 19, 1982, respondent had written a check for $5,000.00 against her escrow account and in favor of "D.K. Operating Acc't." The check was paid October 20, 1982. Petitioner's Exhibit No. 5. The record does not reveal whether the seller ever asked for or received any money in connection with this transaction. The seller had "agree[d] to pay [respondent] as a fee, the sum of Ninety-Seven thousand and five hundred dollars ($97,500.00) or one-half of the deposits in case same is forfeited by the Buyer Petitioner's Exhibit No. 1.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for ninety (90) days. DONE and ENTERED this 11th day of May, 1984, in Tallahassee, Florida. ROBERT T. BENTON II 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 11th day of May, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Diane M. Klein Post Office Box 7193 Ft. Lauderdale, Florida Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 =================================================================
