Findings Of Fact Respondent, Eduardo A. Cardounel (Cardounel), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license No. 0013037. Cardounel was the owner and sole qualifying broker for Respondent, Alexena Realty, Inc., a Florida corporation, registered as a real estate broker, license No. 0000851. In 1981 the Hamptons Development Corporation of Dade had under construction a condominium development in North Miami Beach, Florida, to be known as the Hamptons. In August 1981 Cardounel introduced Harold and Amparo Carvajal and Ulpiano and Maria Barona to the Hamptons project, and represented that he was the broker for the development and that these condominiums could be a good investment for them. Respondents concede they acted as agents for the Carvajals and Baronas at all times material to these proceedings. The Carvajals and Baronas each decided to purchase two units at the Hamptons. To guarantee the reservation of the units they had selected, they were required to place a small deposit and by December 31, 1981, have on deposit with the Hamptons a total of 10 percent of the purchase price of each unit. Dr. Carvajal left $4,000 with Cardounel, and Mr. Barona left $7,500, for the reservations deposits. The Carvajals and Baronas are residents of Columbia, South America. American dollars are not readily available, and the transfer of funds out of that country is not an easy task. Accordingly, the Carvajals and Baronas had to make arrangements to ensure that any funds which might be required to effect their purchases were available in the United States as those sums became due. The manner in which monies were delivered to Cardounel was, therefore, quite natural and necessary under the circumstances. On December 31, 1981, in Columbia, South America, Cardounel personally delivered four purchase and sale agreements for the Hamptons units to the Carvajals and Baronas for execution. The Carvajals executed agreements to purchase Units 905 and 1503, for $197,000 and $216,000, respectively. The Baronas executed agreements to purchase Units 605 and 1405 for $194,000 and $201,000, respectively. These agreements provided that the purchase price be paid as follows: Ten percent upon execution of the agreement, An additional 5 percent when the slab was poured on the floor on which the unit lies, An additional 5 percent when the slab was poured on the main roof, and The balance at time of closing. Prior to execution of the agreements, the Carvajals and Baronas had made arrangements to have those monies available in the United States. On November 9, 1981, Dr. Carvajal delivered an additional $37,300 to Cardounel for his initial 10 percent deposit. These monies, together with the $4,000 already on deposit, totaled the 10 percent deposit due for Units 905 and 1503. In September 1981 Mr. Barona delivered an additional $30,000 to Cardounel toward the initial 10 percent deposit that would be due on his units. Mr. Barona instructed Cardounel to place these funds in a "terminal deposit," a certificate of deposit, earning interest until the monies were due. 1/ On December 31, 1981, upon execution of the agreements, Mr. Barona delivered an additional $2,000 to Cardounel, which sum, together with the prior sums, totaled the 10 percent deposits due on his units. The record is unclear as to when the 10 percent deposit monies the Carvajals and Baronas had entrusted to Cardounel were paid to the Hamptons. They were paid, however. Initially the parties anticipated that the first additional 5 percent deposit would be due the latter part of 1982, and the second additional deposit in June 1983. Accordingly, in April 1982, Dr. Carvajal delivered $50,000 to Cardounel with instructions that the monies be invested in an interest-bearing account pending payment of the additional 5 percent deposits, and with the correspondent understanding that these monies would be available to pay the deposits as they came due. Mr. Barona transferred $30,000 to Cardounel, $10,000 in September 1982 and $20,000 in October 1982, to be applied toward the 5 percent additional deposits as they became due. Mr. Barona, consistent with his prior instructions, directed that these monies be held in a certificate of deposit, earning interest until the additional 5 percent deposits became due. By letters dated February 24, 1983, and March 2, 1983, to Dr. Carvajal and Mr. Barona, respectively, Cardounel advised them that the 5 percent deposits had not been paid in December 1982 because the Hamptons was late in construction and it had refused to pay interest on any deposits. In his letter to Mr. Barona, Cardounel advised him that the 5 percent deposit on Unit 605 would be due the end of March and on Unit 1405 the middle of April. In his letter to Dr. Carvajal, Cardounel advised him that the 5 percent deposit on Unit 905 would be due approximately April 1, and on Unit 1503 approximately the middle of April. Subsequent to Cardounel's letters, the Hamptons inquired directly of Mr. Barona concerning his failure to make the additional deposits. By letter of March 20, 1983, Mr. Barona replied that the monies for these deposits had been delivered to Cardounel and authorized the Hamptons to secure the monies from Cardounel. Mr. Barona also instructed Cardounel to immediately deliver the deposits to the Hamptons. At the end of March 1983, Dr. Carvajal and Mr. Barona, having been informed by friends that there might be a "problem" with the purchase of the Hamptons units, traveled to South Florida to confer with Cardounel regarding the status of their agreements and their deposit monies. Their initial meeting occurred on Sunday, at which time Cardounel informed them that he could not get them the monies because the bank was closed. They arranged to meet at his office the next day. On the following day, Dr. Carvajal and Mr. Barona met with Cardounel, but no monies were tendered. Instead, Cardounel exhibited to Dr. Carvajal two original promissory notes purportedly executed by a corporation known as Marfred International Investment, Inc. The first promissory note, dated April 17, 1982, in the amount of $50,000, was for a term of six months, and was represented by Cardounel to be an investment of the $50,000 Dr. Carvajal had entrusted to him. This note was purportedly secured by real property of a value of $120,000. The second promissory note exhibited to Dr. Carvajal, and payable to his order, was an unsecured note dated January 18, 1983, for a term of six months, in the sum of $36,000. This note, purportedly a reinvestment of the proceeds of the first note, did correctly reflect the balance that was due Carvajal, since $14,000 had, with his consent, been previously used for other purposes. This was, however, the first Dr. Carvajal had seen or heard of the January 1983 note. At the sane meeting, Cardounel exhibited four original unsecured promissory notes to Mr. Barona. These notes were not models of draftsmanship. They variously described the payor as Florida Investors Const. Co., Inc., and Florida Investors Const. Co., Inc., and one even named Florida Investors Const. Co., Inc., as payer but was executed by Florida Investors Const. Co., Inc. The notes exhibited to Mr. Barona were as follows: A note dated January 27, 1983, for a term of six months, in the sum of $20,500, A note dated February 2, 1983, for a term of six months, in the sum of $10,250, A note dated October 1, 1983, for a term of 90 days, in the sum of $10,000, and A note dated October 16, 1983, for a term of 9 days, in the sum of $20,000 2/ Prior to this meeting, Mr. Barona had no knowledge of the promissory notes, nor that his monies had not been invested as he had instructed. Dr. Carvajal and Mr. Barona voiced objection to the fact that Cardounel had "invested" their money in the fashion he had, since the monies would not be available as they became due under their agreements with the Hamptons. Further, Cardounel had violated Mr. Barona's instructions to place the sums in a certificate of deposit. In "satisfaction" of the notes, Cardounel issued four postdated checks, payable to Young, Stern and Tannenbaum-- escrow agents for the Hamptons- -and drawn on the personal account of "Eduardo Cardounel or Ena Cardounel." Check No. 4082, in the sum of $20,650, and check No. 4083, in the sum of $19,750, each dated April 7, 1983, represented the amount of monies needed to make the first 5 percent deposits on the Carvajal and Barona units. Check No. 4087, dated July 18, 1983, in the sum of $18,050, and check No. 4088, dated August 2, 1983, in the sum of $12,845, were to be applied to the respective accounts of Carvajal and Barona towards their second 5 percent deposits. Dr. Carvajal and Mr. Barona tendered their respective checks to Young, Stern and Tannenbaum. Each of the checks was deposited on the due dates and each was dishonored and returned for insufficient funds. To date, despite demand, Cardounel has failed to deliver the monies due Dr. Carvajal or Mr. Barona. The events which transpired after Cardounel's receipt of the Carvajals' and Baronas' additional monies are suspect. Cardounel concedes that commencing in 1982 through 1984 his real e state business had not produced any income for him. He had been compelled to sublease space in his offices just to keep his office open, and even then was losing money. Notwithstanding this downturn in the real estate market, Cardounel "invested" the monies entrusted to him with two small development companies with whom he was intimately connected. The monies which Dr. Carvajal entrusted to Cardounel, in April 1982, were purportedly lent to Marfred International Investment, Inc. (Marfred), as evidenced by a secured promissory note dated April 17, 1982, and a renewal unsecured promissory note dated January 18, 1983. Marfred is a Panamanian corporation authorized to do business in Florida. According to Cardounel, Marfred was a real estate developer to whom he had sold property. Cardounel admitted he was the registered agent for Marfred, but denied he was ever an officer of that company. Further, Cardounel could not recall the names of the corporate officers. The records in the office of the Secretary of State, State of Florida, confirm that Cardounel was the registered agent for Marfred, that he filed every Annual Report for Marfred, and that he was a vice president of Marfred in 1983 and 1984. While the first promissory note executed by Marfred, April 17, 1982, purported to be secured by real property of a value of $120,000, the property was described only by lot and block number with no city, county, or state designated. No mortgage on the real property was executed or recorded in connection with this promissory note. Cardounel concedes that absent a mortgage, the promissory note was unsecured, and further testified that he had no idea as to the real value or actual location of the property in question. Cardounel had no explanation as to why the second promissory note, January 18, 1983, was unsecured. The $30,000 which Mr. Barona entrusted to Cardounel, between September and October 1982, was purportedly evidenced by unsecured promissory notes executed by Florida Investros Const. Co., Inc., Florida Investors Const. Co., Inc., or named as payer, Florida Investros Const. Co., Inc., but executed by Florida Investors Constr. Co., Inc. These notes were unconditionally guaranteed by Cardounel. Cardounel was the registered agent for Florida Investros Const. Co., Inc. Coincidentally, Cardounel testified that contemporaneously with his meeting with Dr. Carvajal and Mr. Barona in March 1983, he learned that both Marfred and Florida Investros Const. Co., Inc., were in trouble and there was serious doubt that they could repay the monies. Notwithstanding this "fact," Cardounel tendered to Dr. Carvajal and Mr. Barona his four postdated checks in "satisfaction" of the promissory notes. It is worthy of note that the six promissory notes Cardounel exhibited to Dr. Carvajal and Mr. Barona were all originals, which Cardounel had retained in his possession. Additionally, Cardounel, upon tender of his checks in "satisfaction" of the promissory notes, at no time requested or obtained an assignment of those notes but, rather, had them marked "paid."
Findings Of Fact 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 Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that the Respondents are guilty of failing to maintain the required entrance sign on or about the entrance to the principal office in violation of Subsection 475.22, Florida Statutes and Rule 21V-10.024, Florida Administrative Code and are therefore in violation of Subsection 475.25(1)(e), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that Respondents are guilty of failing to register a branch office in violation of Subsection 475.24, Florida Statutes, and Rule 21V-10.023, Florida Administrative Code, and therefore are in violation of Subsection 475.25(1)(e), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that the Respondent Max S. Long, Jr., is guilty of failing to be a signatory on all escrow accounts in violation of Rule 21V-14.010, Florida Administrative Code and therefore is in violation of Subsection 475.25(1)(e), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that the Respondents' are guilty of failing to maintain trust funds in the real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized in violation of Subsection 475.25(1)(k), Florida Statutes. Whether the Respondents' real estate licenses in Florida should be disciplined based upon the charge that Respondents' are guilty of culpable negligence or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. Respondent Max S. Long, Jr. was at all times material hereto a licensed real estate broker in the State of Florida having been issued license numbers 0253744, 0253742, and 0258199 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker for Stonegate Realty, Inc., 2325 Ulmerton Road, Clearwater, Florida 34620 and Queens Harbour Realty, Inc., 711 San Pablo Road North, Jacksonville, Florida 32225. Respondent Long has been a licensed salesperson since 1974 and a licensed broker since 1978. The Respondent Stonegate Property Management Corporation was at all times material hereto a corporation registered as a real estate broker in the State of Florida having been issued license number 0240617 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 2325 Ulmerton Road, Clearwater, Florida 34620. The Respondent Stonegate Realty, Inc. was at all times material hereto a corporation registered as a real estate broker in the State of Florida, having been issued license number 0182660 in accordance with Chapter 475, Florida Statutes. The last licensed issued was at the address of 2325 Ulmerton Road, Clearwater, Florida 24620. The Respondent Queens Harbour Realty, Inc., is now and was at all times material hereto a corporation registered as a real estate broker in the State of Florida, having been issued license number 0257554 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 711 San Pablo Road North, Jacksonville, Florida 32225. On or about October 17, 1989, DPR investigator Marjorie G. Maye (hereinafter Maye) conducted an inspection and audit of Respondents' offices and escrow accounts in Clearwater. Maye discovered that the Respondents did not display an office entrance sign for the corporations. Since the inspection Respondents have erected the proper sign which has been displayed continuously since that date. Respondents were operating an unregistered branch office located at 13280 Broadhurst Loop S.W., Ft. Myers, Florida. Respondents did not register the office because the salesperson was an employee of the developer and sold only property at that project. Since the inspection Respondents have properly registered the branch office. At the time of the inspection and audit Respondent Long was not a signatory on Respondents' escrow accounts. Since the inspection, Respondent Long has been added as a signatory to the escrow accounts. At the time of the audit Respondents' escrow account titled Queens Harbour Realty - Escrow account number 0089798317 maintained at C & S Bank of Pinellas County on September 30, 1989, had a current liability of $54,010.66, a reconciled bank balance of $8,537.99 thus indicating a shortage of approximately $45,472.67. Ultimately, the Respondents reduced the shortage to zero and the accounts balanced. At the time of the inspection and audit, Ed Perry, CPA, was employed by Respondent Queens Harbour in the accounting department and was in charge of the Queens Harbour Realty - Escrow account which was maintained out of Clearwater, Florida. George Patterson and Ed Perry, CPAs, and other individuals were signatories on this escrow account. The escrow accounts were used for deposits on real estate sales and leases. The funds were disbursed at sale or upon termination of the lease. Some of the funds received by Respondents were not required to be held in escrow. Eventually the deposits from several projects were placed in the escrow accounts. Disbursements were made from the escrow accounts even though the funds were not required to be deposited in the escrow account. This resulted in confusion as to the exact amounts of funds required to be maintained in the escrow accounts and which funds were available for distribution. Shortages in the escrow accounts were a result of intercompany loans and disbursements, as well as, from the co-mingling of funds. These were made at the direction of George Patterson. On or about October 13, 1989, Ed Perry, CPA and George Patterson, supervisor of the accounting department, signed a $6,000.00 check from Respondents' escrow account which was used for the purchase of a vehicle for Queens Harbour Yacht and Country Club. When this error was discovered the $6,000.00 was re-deposited to the escrow account. Respondent Long, became the broker for Stonegate Realty at the request of his cousin, Fred Bullard, the President of the Bullard Group, and a majority shareholder in Queens Harbour Realty, Inc. He was not aware of and did not sign any of the checks representing the inter-company loans or for the purchase of the vehicle. He derived no benefit from these loans. Respondent Max S. Long, Jr. understood at all times material to the allegations in the Administrative Complaint that an escrow account is one used to hold funds belonging to third parties and that he, as the real estate broker, acted in a fiduciary capacity to those third parties. Respondent Long relied completely on the corporation's in-house accountants to properly prepare the accounting for the escrow funds. Since the DPR investigation, there have been no shortages in the escrow account, monthly reconciliation reports are prepared and signed by Respondent Long, and the escrow accounts are routinely reviewed by Respondent Long. Respondent Long has had no prior disciplinary proceedings before the Commission.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and the evidence of the record, including the contents of the several exhibits received into evidence, it is, therefore: RECOMMENDED that the Respondents be found guilty of having violated Subsections 475.25(1)(b), (e) and (k), Florida Statutes, (1989), as charged in the Administrative Complaint. It is further RECOMMENDED that Respondents shall jointly pay a penalty of $500 and that Respondent Long's real estate licenses be suspended for a period of one year, followed by a one year period of probation upon such conditions as the Florida Real Estate Commission shall reasonably impose. DONE and ENTERED this 21st day of August, 1991, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 15, 16, 17, 18, 19, 20. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, Respondents' proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42. Rejected as irrelevant: 9, 13, 40. COPIES FURNISHED: Janine B. Myrick, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kelli Hanley Crabb, Esquire Post Office Box 4110 St. Petersburg, Florida 33743 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Jack L. McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue 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 =================================================================
Findings Of Fact In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage Solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August 1984 and August 1985 the Mortgage Broker's License of the Respondent was renewed by the Department of Banking and Finance. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the Department of Banking and Finance concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request For Judicial Notice filed in this cause and dated April 24, 1986. Christensen's Stipulation which was confirmed by the Final Order of the Florida Real Estate Commission recites that Christensen was "served with the Administrative Complaint, copy attached," charging Christensen with violating certain provisions of Chapter 475, Florida Statutes, and admits that the Administrative Complaint contains no disputed issues of material fact. But the Administrative Complaint itself apparently is not attached to the Stipulation approved by the Florida Real Estate Commission. It is not attached to the Stipulation filed in this case and is not found anywhere in the evidentiary or official record of this case. The Stipulation filed by the parties in this case does not state whether the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Banking and Finance, enter a final order dismissing the Amended Notice Of Intention To Suspend Or Revoke And Administrative Charges And Complaint against Respondent, Terry E. Christensen, in this case. RECOMMENDED this 10th day of June, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 10th day of June, 1986. COPIES FURNISHED: John B. Root, III Assistant General Counsel Office of the Comptroller 400 West Robinson Street Suite 501 Orlando, Florida 32801 Gorham Rutter, Jr., Esquire Gorham Rutter, Jr., P.A. 338 N. Magnolia Avenue, Suite D Orlando, Florida 32801 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE DEPARTMENT OF BANKING AND FINANCE, Petitioner vs. CASE No. 86-0328 TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N The Petitioner, DEPARTMENT OF BANKING AND FINANCE, by and through its undersigned counsel, and the Respondent, TERRY E. CHRISTENSEN, hereby stipulate and agree as to the following facts upon which the parties respectfully request the Hearing Officer herein to render his decision: In 1983 the Respondent duly obtained his Mortgage Solicitor's License and the Respondent continued to act as a Mortgage solicitor until July 15, 1984. That on July 15, 1984, the Respondent duly obtained his Mortgage Broker's License holding license No. HB15055. That in August, 1984 and August, 1985 the Mortgage Broker's License of the Respondent was renewed by the DEPARTMENT OF BANKING AND FINANCE. That from 1983 until the present date, the Respondent has processed approximately five hundred (500) mortgage loan applications with an approximate value of $50,000,000.00. That to the knowledge of the Respondent, no complaints have been made to the DEPARTMENT OF BANKING AND FINANCE concerning any activities of the Respondent conducted in his capacity as a Mortgage Solicitor or Mortgage Broker. That during the period of time the Respondent has held his Mortgage Solicitor's and Mortgage Broker's Licenses, the activities conducted by the Respondent pursuant to Florida Statutes, Chapter 494, have been his sole means of financial support for himself and his family. That on June 29, 1983, the Florida Real Estate Commission suspended the Respondent's Real Estate Broker's License for a period of five (5) years. Copies of the Stipulation and Final Order of the Department of Professional Regulation, Florida Real Estate Commission, evidencing said suspension are attached hereto as Exhibits "1" and "2" respectively; conformed copies of said Exhibits were attached to the Petitioner's Request for Judicial Notice filed in this cause and dated April 24, 1986. The parties respectfully request the Hearing Officer to render his decision in this matter based upon the foregoing stipulated facts and in lieu of an evidentiary hearing. DATED this 13th day of May, 1986. JOHN B. ROOT, III, ESQUIRE GORHAM RUTTER, JR., ESQUIRE Office of the Comptroller GORHAM RUTTER, JR., P.A. 400 W. Robinson St., Suite 501 338 N. Magnolia Ave., Suite D Orlando, Florida 32801 Orlando, Florida 32801 ATTORNEY FOR PETITIONER ATTORNEY FOR RESPONDENT Telephone: (305) 423-5116 Telephone: (305) 841-7667 TERRY E. CHRISTENSEN, Respondent EXHIBIT 1 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, vs. CASE NO. 0024293 TERRY E. CHRISTENSEN, Respondent. / DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, CASE NO. 0021931 vs. TEC REALTY, INC. AND TERRY E. CHRISTENSEN, Respondent. / S T I P U L A T I O N Terry E. Christensen; TEC Realty, Inc. and Terry E. Christensen, (Respondents), and Department of Professional Regulation, (Department), hereby stipulate and agree to the issuance of a Final Order by the Florida Real Estate Commission (FREC), adopting and incorporating the provisions of this Stipulation in reference to the above-styled case. STIPULATED FACTS AND CONCLUSIONS OF LAW Respondent Terry E. Christensen is now a broker-salesman, but at times material herein was a licensed real estate broker in the State of Florida having been issued license number 0174505. Respondent TEC Realty, Inc. was at times material herein a licensed corporate real estate broker in the State of Florida having been issued license number 0212593. Its registration is now in "limbo". Respondents admit that they are subject to the provisions of Chapters 455 and 475, Florida Statutes, and therefore, subject to the jurisdiction of the Department and of the FREC. Respondents admit that they have been served with the Administrative Complaint, copy attached, which charges the Respondents with having violated certain provisions of Chapter 475, Florida Statutes, (and the rules enacted pursuant thereto). Respondents admit that the Administrative Complaint contains no disputed issues of material fact. Respondents admit that the stipulated facts contained in the Administrative Complaint support a finding of the Real Estate Practice Act. STIPULATED DISPOSITION Respondents shall not in the future violate Chapters 455 or 475, Florida Statutes, or the rules enacted pursuant thereto. The licenses of Respondents and of each of them, shall be suspended for five (5) years; and Respondents shall pay a total fine of $500 which fine shall be paid by cashier's check or money order made payable to the Department of Professional Regulation, Division of Real Estate within thirty (30) days of the filing of the Final Order. The action taken as reflected in the Final Order shall be published in the FREC News and Report Quarterly. It is expressly understood that this Stipulation is subject to the approval of the Department and of the FREC, and this Stipulation has no force and effect until a Final Order has been issued and filed. This Stipulation is executed by the Respondents for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondents authorize the FREC to review and examine all investigative file materials concerning Respondents prior to or in conjunction with the consideration of this Stipulation. Furthermore, should this Stipulation not be approved by the FREC, it is agreed that presentation to and consideration of this Stipulation and other documents and matters by the FREC shall not unfairly or unlawfully prejudice the Department, the FREC or any of its members from further participation, consideration or resolution of these proceedings. Respondents and the Department fully understand that this Stipulation and resulting Final Order adopting and incorporating the provisions of this Stipulation shall in no way preclude any other disciplinary proceedings by the Department or the FREC against the Respondent for acts or omissions not specifically set forth in the attached Administrative Complaint. Respondents expressly waive all notice requirements and right to seek judicial review of or to otherwise challenge or contest the validity and enforcement of this Stipulation and resulting Final Order of the FREC adopting and incorporating this Stipulation. SIGNED this day of , 1983. (filed document undated) SWORN TO AND SUBSCRIBED Respondents before me this 9th Terry E. Christensen, individually, day of June, 1983. and as broker and officer of TEC Realty, Inc. Notary Public My Commission Expires: Notary Public, State of Florida My Commission Expires June 26, 1986 Bonded Thru Troy Fain Insurance, Inc. Approved this 21st day of June, 1983. John Huskins, Staff Attorney Department of Professional Regulation Legal Section 400 West Robinson Street, 308 Post Office Box 1900 Orlando, Florida 32802 (305) 423-6134 Approved this 13th Fred Roche, Secretary day of June, 1983. Department of Professional Regulation JH/dm 6/6/83 EXHIBIT 2 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 0024293 DOAH NO. 83-346 TERRY E. CHRISTENSEN and TEC REALTY INC. CASE NO. 0021931 DOAH NO. 83-345 Respondents /
Findings Of Fact On January 23, 1984, the Secretary of the Department of professional Regulation (hereinafter "Department") signed an Administrative Complaint, count one of which alleges, in pertinent part: Respondents in their capacity as real estate brokers employed Doris H. Swanton as a real estate broker and office manager from approximately October 20, 1980 to April 18, 1982. On or about April 8, 1982 to the present, Doris H. Swanton has made numerous and repeated demands upon Respondents for the payment of a share of the compensation received by Respondent and earned by Doris H. Swanton while in the employ of the Respondents in the amount totalling approximately $7,815.52 involving a number of brokerage transactions. A copy of a list reflecting the transactions, dates and amounts owing is attached as Petitioner's Exhibit 1. Since April 8, 1982, Respondents have failed, refused and neglected to give a reasonable accounting or to pay Doris H. Swanton the $7,815.52 or any part thereof notwithstanding the demands for same made upon Respondents by Doris H. Swanton, the person entitled to said money. That by reason of the foregoing, Respondents are guilty of having failed to account and deliver a share of a real estate commission and other compensation to Doris H. Swanton in violation of Subsection 475.25(1)(d), Florida Statutes. The Administrative Complaint signed on January 23, 1984, does not contain an allegation that there has been a judicial determination that Respondents are not entitled to retain the property claimed by Doris H. Swanton. On February 22, 1984, the Respondents served an Answer and Written Defenses in which the Respondents, inter alia, admit the first of the paragraphs quoted in finding number 1, above, and deny the other three paragraphs quoted above. The Respondents' Answer and Written Defenses also sets forth a detailed itemization of Respondents' reasons for contending that Doris H. Swanton is not entitled to the full amount of a single one of the twelve commissions she claims are due her from the Respondents. ANALYSIS OF THE ISSUES The thesis of the Motion to Dismiss filed by Respondents is that a broker cannot be disciplined for failure to account for and deliver non-escrowed property until there has been a judicial determination that the broker is not entitled to retain the property in dispute. The case of Golub v. Department of Professional Regulation, F.R.E.C., 9 FLW 460 (Fla. 5th DCA, Feb. 23, 1984), appears to be exactly on point. There a majority of the court concluded: Once there is a judicial determination that a broker is not entitled to retain non-escrowed property then this statute [475.25(1)(d)] is authority to discipline the broker for a failure to account and deliver the property to any person, including a salesman, who is entitled to its prossession. Corollary to the quoted language from Golub is the conclusion that until there is a judicial determination that a broker is not entitled to retain non- escrowed property, the statute does not authorize discipline of a broker for failure toe account and deliver the property. In other words, when the property in dispute is non-escrowed property, a judicial determination that a broker is not entitled to retain the property is an indispensable prerequisite to the establishment of a violation of Section 475.25(1)(d), Florida Statutes, on the basis of a failure to account for or deliver such property. Accordingly, until a court determines that the Respondents in this case are not entitled to retain the property in dispute in this case, it cannot be established that Respondents have violated Section 475.25(1)(d), Florida Statutes. And inasmuch as the Administrative Complaint fails to allege that there has been any such judicial determination, the Administrative Complaint is fatally deficient.
Recommendation Based on the foregoing Findings of Fact, Analysis of the Issues, and Conclusions of Law, I recommend that the Florida Real Estate Commission issue a Final Order in this case dismissing the Administrative Complaint without prejudice to the refiling of an Administrative Complaint against these Respondents if and when a court determines that the Respondents are not entitled to the property claimed by Doris H. Swanton. DONE and ORDERED this 3rd day of July, 1984, in Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1984. COPIES FURNISHED: Robert W. Lee, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 G. Michael Keenan, Esquire Post Office Box 1900 Fort Lauderdale, Florida 33302 Mr. Harold R. Huff, Director Division of Real Estate Legal Section 400 West Robinson Street Orlando, Florida 32801
The Issue The Administrative Complaint alleges Respondents violated Section 475.25(1)(b), Florida Statutes, by committing certain acts which were fraudulent or were misrepresentations or concealed material facts. The issues are whether the Respondents committed the acts alleged and, if so, did their conduct constitute a violation of Section 475.25(1)(b), Florida Statutes. Both parties submitted proposed findings which were read and considered. To the extent that the findings herein differ from the findings proposed, it is because the proposed findings were not relevant or material to the issues, were not based upon the most credible evidence, or were not findings of fact.
Findings Of Fact The Respondents, Norman D. Rathbun and Dianna A. Stolpman, are real estate brokers having been issued license numbers 0072024 and 0085366 respectively. The last known address of Respondents is c/o Mark Realty, Inc., 130 Fifth Avenue, Indialantic, Florida. Respondents are now and were at all times alleged herein licensed real estate brokers in the State of Florida. In February of 1980, Rathbun discussed with Gene Myers at Myers' behest a financial arrangement by which Myers, who had been trying to sell a house which he and his wife owned and were leasing, could obtain immediate cash to go to California. On February 4, 1980, they entered into a written agreement which provided in general terms that the Respondents would give the Myers $5,000 in cash, would assume financial responsibility for the three mortgage payments on the house, would manage the rental of the property, and would attempt to sell the house for which Respondents would receive a $3,000 commission and split the proceeds of the sale of the house with the Myers less the moneys the Respondents had expended. Upon discovering an outstanding judgment against the property of over $1,000, the Respondents prepared an amended agreement which provided that they would give the Myers $4,000 in cash and pay the outstanding judgment. This amendment was executed on February 8, 1980, at which time the Myers executed a warranty deed conveying the property to the Respondents. All of the parties were aware of their mutual obligations and the benefits they were to obtain from the agreement, and the Myers executed the warranty deed with a full understanding that they were conveying their right in the property to the Respondents subject to the terms of this agreement. Although conflicting testimony was received about whether the deed would be recorded by the Respondents, the documents and actions of the parties show the Myers were aware that the deed was in exchange for the cash and promises they received and that it would be recorded if necessary to secure the Respondents' interests (i.e., if the Myers were killed in an automobile accident) although the Respondents did not anticipate filing the deed. In early May of 1980, the Myers, who were living in California, determined they wanted to return to Florida. Gene Myers called Rathbun and asked if they could get the house back. Rathbun consulted Stolpman and, as a result, a letter was sent to the Myers on or about May 2, 1980, setting forth the terms under which the Myers could have the house back. The Myers did not comply with the terms of this letter until September 5, 1980, when they tendered the money to the Respondents. Upon tendering the money in return for rescinding their previous agreement, the Respondents reconveyed the property. Before the agreement was rescinded, Respondents continued to deal with the property as its owners limited only by the written agreement. The Myers had no legal right prior to September 5, 1980, to direct the Respondents to return the house to the Myers' possession or to cease their efforts to sell the property. The Respondents did all the things which they were required to do under the agreement and at all times met their obligations under the agreement. On or about May 10, 1980, when the Myers had returned to Florida, Gene Myers told Rathbun that he did not want the house sold, and that he could cut off the Respondents' rights by conveying the property to a relative. On May 12, 1980, in response to Myers' comment about cutting off their rights in the property, the Respondents filed the deed executed by the Myers conveying the property to the Respondents. On June 30, 1980, the Myers filed a claim of financial interest in the property with the local circuit court clerk. No evidence exists that the Respondents were served with this claim. Respondents continued their efforts to sell the property and on July 1, 1980, obtained a contract for sale on the property for a price that was within the limits established under their agreement with the Myers. Closing on the contract was to be on Friday August 1, 1980. On July 21, 1980, through their attorney, the Myers filed suit against the Respondents, who were served with the suit and a lis pendens on July 24, 1980. On July 25, 1980, Respondents met with their attorney, who called the Myers' attorney. Arrangements were made to meet on August 4, 1980, to discuss resolution of the suit. Between July 25 and August 1, 1980, Respondents did not notify the buyers or the buyers' agent that a suit was pending regarding the property. On or about July 31, 1980, the Myers reoccupied the house and on August 1, 1980, advised the buyers that they were the owners, not the Respondents. The buyers, their attorney and their real estate agent attended the scheduled closing. Rathbun arrived late, at which time the pending litigation and the Myers' claims were being discussed. Rathbun advised the group that he and his attorney were already scheduled to meet with the Myers and their attorney the following Monday, and that he felt the matter could be resolved. On August 2, 1980, the buyers elected to withdraw their offer. On August 4, the Respondents and the Myers reached a tentative agreement for the Myers' continued possession of the property. This resulted in a written agreement dated September 5, 1980. The terms of this agreement were substantially the same as the terms stated in the letter to Myers of May 2, 1980.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission dismiss the allegations of the Administrative Complaint against the Respondents. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982. COPIES FURNISHED: John G. DeLancett, Esquire 801 North Magnolia Avenue, Suite 402 Post Office Box 6171-C Orlando, Florida 32803 Michael Krasny, Esquire 416 South Babcock Street Post Office Box 1376 Melbourne, Florida 32901 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel R. ,Shorstein, Secretary Department of Professional Regulation 130 North Monroe Streets Tallahassee, Florida 32301
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the registration of Ronald W. Hoffman as a registered real estate salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of August, 1977. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1977. COPIES FURNISHED: Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Ronald W. Hoffman 722 Lithia Road Brandon, Florida 33511 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Petitioner, PROGRESS DOCKET NO. 3140 HILLSBOROUGH COUNTY vs. CASE NO. 77-679 RONALD W. HOFFMAN, Respondent. /
