Findings Of Fact Respondent Amy Ostrau is a registered real estate salesman having been issued License No. 0144468 by the Board of Real Estate. The last known address of the Respondent is c/o Ann Ford, Inc., 7370 Northwest 5th Street, Ft. Lauderdale, Florida 33317. The Respondent, at all material times alleged herein, was a registered real estate salesman employed by Ann Ford Realty, Inc. On or about March 29, 1980, Respondent obtained a written deposit receipt and contract for sale and purchase from a prospective purchaser, H. Steven Hill. The contract indicated that the selling broker Ann Ford, Inc., broker, held an initial deposit of $500.00. (Respondent's Exhibit 1) The $500.00 deposit check was received by Respondent from a friend of Hill because Hill did not have a check available at that time. Respondent placed the deposit check in her office file and it remained there until Friday, April 11, 1980 when a second deposit check, in the amount of $17,750.00, was presented by the buyer. At this time, the first deposit check was returned to Hill by the Respondent. Respondent presented the second deposit check to her broker and it was then deposited by mail into the broker's escrow account on April 15, 1980. The check evidently was credited to the broker's account on April 15, 1980. (The response to request for admissions refers to the pertinent month as August, which is obviously in error.) On or about April 17, 1980, and as a result of a request by Hill, a building inspection was conducted on the house. The inspection disclosed several deficiencies in the house and the estimated repair cost for the deficiencies exceeded the amount specified in the contract for repairs. Payment of the second deposit check in the amount of $17,750.00 was stopped on April 21, 1980 by Hill, and, as a result, there was no earnest money deposit remaining in the escrow account. Respondent's husband, an attorney, Norman M. Ostrau, represented the purchaser, H. Steven Hill, in the transaction. Respondent was asked by Hill to hold the $500.00 earnest money deposit check until the contract was accepted and signed by the sellers. Pursuant to these instructions, Respondent failed to turn over the deposit check to her employer immediately upon receipt of the same. A civil action for damages is pending in the Broward County Circuit Court brought on behalf of the sellers of the property against the buyer and broker, with counterclaim by the buyer. (Respondent's Exhibit 2)
Recommendation That the Board of Real Estate suspend the license of Respondent, Amy Ostrau, for a period of thirty (30) days pursuant to Subsection 475.25(1)(k), Florida Statutes. DONE and ENTERED this 4th day of March, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 4th day of March, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard, Suite 101 Fort Lauderdale, Florida 33307 Michael Rifkin, Esquire OSTRAU & RIFKIN 8751 West Broward Blvd. Suite 302 Plantation, Florida 33324 Mr. C. B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondents committed the offenses set forth in the six-count Administrative Complaint dated October 15, 2003; and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Real Estate (the "Department"), is the state agency charged with enforcing the statutory provisions pertaining to persons holding real estate broker and sales associate's licenses in Florida, pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes (2003). At all times relevant to this proceeding, Respondent Richard R. Page, was a licensed Florida real estate broker/officer, having been issued broker license no. KB-0148248. He was the qualifying broker for Aztec Realty. At all times relevant to this proceeding, Respondent Aztec Realty, was a corporation registered as a Florida real estate broker, having been issued corporate registration no. CQ-0156640. Aztec Realty's business location was 4456 Tamiami Trail, Charlotte Harbor, Florida 33980. Barbara Kiphart was a 13-year employee of the Department who had performed thousands of audits of broker records. After conducting agent interviews on an unrelated matter in the office of Aztec Realty, she informed Mr. Page that she planned to perform an audit of the corporation's escrow accounts. Ms. Kiphart testified that it was routine for the Department to perform such audits when visiting brokers' offices for other reasons. Ms. Kiphart informed Mr. Page that she would need all documents necessary to complete an audit of Aztec Realty's escrow accounts, including bank statements, account reconciliations, and liability lists. Mr. Page referred Ms. Kiphart to Cheryl Bauer, Aztec Realty's financial manager. With Ms. Bauer's assistance, Ms. Kiphart completed the audit on June 12, 2003. Three accounts were examined: the sales escrow account; the security deposit account; and the property management account. The sales escrow account was found to be in balance, with liabilities equal to the bank balance of $382,300.52. The security deposit account was found to have liabilities of $45,533.29 but only $16,429.84 in its bank balance, a shortage of $29,103.45. The property management account was found to have liabilities of $22,545.54 but only $16,594.71 in its bank balance, a shortage of $5,950.83. Ms. Kiphart testified that the security deposit account had not been reconciled in the year 2003, and she had no way of saying when it was last reconciled. She determined the account's balance from Aztec Realty's bank statements, but had to extrapolate the liabilities from a computer printout of security deposits. Ms. Bauer testified that she handles the finances for all aspects of Aztec Realty's real estate sales business, including the sales escrow account, and that she was able to provide all the information Ms. Kiphart needed to audit that account. However, Ms. Bauer had no responsibility for the other two accounts, both of which related to the rental property management side of Aztec Realty's business. She had to obtain information about those accounts from Jill Strong, her newly- hired counterpart in property management. At the time she provided the computer printout on the property management accounts to Ms. Bauer and Ms. Kiphart, Ms. Strong told them that she knew the numbers were inaccurate. Aztec Realty had purchased Tenant Pro, a new rental management software package, in 2001. In the course of approximately 18 months, Aztec Realty had three different employees in Ms. Strong's position. One of these short-term property managers had misunderstood the software for the security deposit account. Opening balances were entered for accounts that had, in fact, already been closed out with the deposits returned. This had the effect of inflating the apparent liabilities in that account. The previous property manager was also unable to print checks on the printer attached to her computer terminal. Ms. Bauer would print the deposit refund checks on her own printer, with the understanding that the property manager was recording these entries against the security deposit account. Ms. Strong discovered that these entries had not been recorded. Thus, monies that had been paid out to owners, renters, and vendors were never recorded anywhere besides a sheet that Ms. Bauer kept for printing out checks, again inflating the account's apparent liabilities. Ms. Strong had been working for Aztec Realty for about one month at the time of the audit. She was still in the process of sorting out the problems in the security deposit account, hence her statement to Ms. Bauer and Ms. Kiphart that she knew the numbers were inaccurate. Subsequent to the Department's audit, Ms. Bauer and Ms. Strong commenced their own audit of the security deposit and property management accounts. Their efforts were complicated by a storm and tornado that struck the area on June 30, 2003. The offices of Aztec Realty suffered over $100,000 in damage, including water damage to the roof that caused the office to be flooded. Records were soaked and Ms. Strong's computer was destroyed. By mid-July 2003, Ms. Bauer and Ms. Strong had completed their corrected audit of the security deposit account. They concluded that the actual shortfall in the account was $13,764.43. That amount was immediately transferred from the real estate operating account to the security deposit account to bring the latter account into balance. The real estate operating account was essentially Mr. Page's personal funds. As to the property management account, also referred to as a "rental distribution" account, Ms. Bauer and Ms. Strong performed a subsequent audit indicating that the account was out of balance on the positive side. They discovered that there were items paid out of the property management account that should have been paid from escrow and vice versa. When the audit brought the accounts into balance, the property management account was approximately $200 over balance. In an audit response letter to Ms. Kiphart dated July 16, 2003, Mr. Page acknowledged that the property management account had been improperly used to pay occasional expenses, but also stated that the practice had been discontinued. At the hearing, Mr. Page conceded that no reconciliations had been performed on the security deposit account or the property management account from at least January 2003 through May 2003. Mr. Page and Ms. Bauer each testified that the corrective actions taken in response to the audit have been maintained and that there have been no accounting problems since June 2003. Aztec Realty has contracted to sell its property management department. The evidence established that no client of Aztec Realty or other member of the public lost money due to the accounting discrepancies described above. Neither Mr. Page nor Aztec Realty has been subject to prior discipline. Mr. Page has worked in the real estate business in the Port Charlotte area for nearly 30 years and is a past president of the local association of realtors. He credibly expressed remorse and testified that, given his position in the community, he was "mortified" at having allowed his company to be placed in this position. Aztec Realty has operated for nearly 30 years and currently has 20 employees and approximately 65 agents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order: Dismissing Counts II and III of the Administrative Complaint against Mr. Page; Dismissing Counts V and VI of the Administrative Complaint against Aztec Realty; Imposing an administrative fine against Mr. Page in the amount of $1,000 for the violation established in Count I of the Administrative Complaint; and Imposing an administrative fine against Aztec Realty in the amount of $1,000 for the violation established in Count IV of the Administrative Complaint. DONE AND ENTERED this 27th day of July, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2004.
The Issue Whether Respondent, Nicholas Anthony Musashe (Respondent Musashe), is guilty of failure to account or deliver funds and failure to follow procedures as required by Subsection 475.25(1)(d)1., Florida Statutes (2003). Whether Respondent Musashe is guilty of failure to provide written notification to the Florida Real Estate Commission (FREC) within 15 days of the last party's demand as required by Florida Administrative Code Rule 61J2-10.032(1)(a). Whether Respondent Musashe is guilty of culpable negligence or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes (2003). Whether Respondent, The Jander Group, Inc. (Jander Group), is guilty of failure to account or deliver funds and failure to follow procedures, as required by Subsection 475.25(1)(d)1., Florida Statutes (2003). Whether the Jander Group is guilty of failure to provide written notification to the FREC within 15 days of the last party's demand as required by Florida Administrative Code Rule 61J2-10.032(1)(a). Whether the Jander Group is guilty of culpable negligence or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes (2003).
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to investigate administrative complaints pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes (2003), and the rules promulgated thereunder. Respondent Musashe is, and has been at all times material, a licensed real estate broker, having been issued license no. 265400 and license no. 3010224. He is the owner of the Jander Group, which is also a licensed real estate broker, and its business address is located at 1440 Howell Branch Road, Winter Park, Florida 32789. At all times material hereto, Respondent Musashe was licensed and operating as the qualifying broker for the Jander Group. The Jander Group manages rental property exclusively and is not involved in the sale of real estate. Respondent Musashe has been managing rental properties in Florida since 1990. He, through his company, the Jander Group, manages about 500 properties. He enters into contracts with property owners to provide property management services. He meets with the property owners to advise them on improvements to accommodate rentals. He advertises vacant properties; interviews prospective residents; shows properties; takes applications; screens applicants; and, upon ascertaining that the applicant meets the minimum standards, enters into lease agreements with tenants. He also performs the day-to-day functions of collecting rent, accounting, paying bills, accounting to the owner, and paying the owner the rental proceeds. He keeps a percentage of the rent for his services. From time to time, in the property management business, a dispute develops between a tenant and a property owner. This can involve a deposit by a prospective tenant or a security deposit pursuant to a lease. In the early 1990's, the Legislature amended Chapter 83, Florida Statutes (2003), the "Florida Residential Landlord and Tenant Act" (Landlord-Tenant Act). Among other changes, it relieved licensed real estate brokers from the requirements of reporting escrow disputes and instituting settlement procedures as outlined in Subsection 475.25(1)(d), Florida Statutes (2003), when there were deposit disputes between residential landlords and tenants. Thereafter, and until late 2001, the FREC's position on rental property deposit disputes was that such disputes were addressed by the Landlord-Tenant Act and not subject to the provisions of Chapter 475, Florida Statutes (2003). This applied to disputes over security deposits, as well as disputes over deposits by prospective tenants. In late 2001, without notice to brokers and associates or rulemaking, the FREC changed its legal interpretation of Subsections 475.25(1)(d) and 83.49(3)(d), Florida Statutes (2003), with respect to disputes over pre-lease deposits on rental property. In this case and at least one other case, administrative complaints were filed against brokers who, faced with a dispute between a prospective tenant and a property owner, failed to give the FREC notice of the dispute and requested one of the settlement procedures set forth in Subsection 475.25(1)(d), Florida Statutes (2003). In the early to mid-1990s, in his business of managing rental properties, when confronted with disputes between prospective tenants and property owners, Respondent Musashe routinely sent notice to the FREC and requested an escrow disbursement order (EDO) to assist in determining how to settle the dispute in accordance with Subsection 475.25(1)(d), Florida Statutes (2003). The FREC responded that disputes involving rental properties were to be resolved in accordance with the Landlord-Tenant Act and did not issue an EDO. James Mitchell was the legal advisor to the FREC for several years while in the Attorney General's (AG) office in the 1990s; and since that time, is the author of continuing education materials which are approved by the FREC. In his materials, he instructs real estate brokers that disputes involving any type of rental deposits should be handled pursuant to the Landlord-Tenant Act, and not in accordance with the notice and settlement procedures set forth in Subsection 475.25(1)(d), Florida Statutes (2003). Mitchell is not familiar with the particular facts or documents at issue in this case. He did not give an opinion as to whether or not the facts of the present case created a landlord and tenant relationship between Respondents and Tiffnye Castro. During his tenure with the AG's office, Mitchell applied Chapter 83, Florida Statutes (2003), to escrow dispute issues in a manner consistent with the statutes' definition of "tenant" and "rental agreement." Section 83.49, Florida Statutes (2003), applies "whenever money is deposited or advanced by a tenant on a rental agreement or as advanced rent for other than the next immediate rental period." Chapter 83, Florida Statutes (2003), defines, "tenant" as "any person entitled to occupy a dwelling under a rental agreement." On May 10, 2002, Castro signed a rental application with the Jander Group to rent a duplex at 12034 Waldenwoods in Orlando. She gave the Jander Group a check for $25.00 as an application fee and $585.00 as a holding deposit. According to the terms of the application, the holding deposit was to be held by the broker while the application was being processed. If the prospective tenant was deemed qualified, she would receive a lease. During the time that the broker was checking on the tenant's qualifications, the property would be taken off of the rental market. If the tenant did not meet the qualifications for renting the property, the holding deposit would be returned to her. If the prospective tenant qualified, but changed her mind and decided not to rent the property, the property owner was entitled to keep the holding deposit as liquidated damages for holding the property off the rental market. Subsequent to filling out the application, Castro was approved as a tenant. In a dispute over the amount of rent to be charged for the unit, Castro decided not to rent the property and sent a demand letter to Respondent seeking the return of her deposit. On June 20, 2002, the Jander Group sent Castro a letter, in conformance with Subsection 83.49(3), Florida Statutes (2003), giving her notice of its intent to keep her deposit. Respondents accounted for the deposit to both parties in the transaction; and subsequently, delivered the deposit to the property owner. Castro never signed a lease or possessed keys, and she never had the right to occupy the property in question. Respondent predicated the handling of the escrow deposit on the assumption that he had a landlord and tenant relationship with Castro. Respondents never petitioned the FREC for a declaratory statement regarding a dispute over a deposit by a non-tenant on a lease application, rather than a rental agreement. Respondent Musashe elected not to follow Subsection 475.25(1)(d)1., Florida Statutes (2003), requirements for five reasons: his opinion that the issue was contractual; his own reading of the law; his experience with professional education; advice of private counsel; and the statements of law issued by the AG's office regarding EDOs. There is no evidence that Respondent Musashe was ever specifically advised by a state agency that the landlord and tenant procedure in Section 83.49, Florida Statutes (2003), was applicable to earnest money deposits made by a non-tenant as part of an application that did not create a lease obligation. Petitioners presented no evidence relative to paragraphs 15 through 22 and 25 through 32 of the Amended Administrative Complaint.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order dismissing the Amended Administrative Complaint filed against Respondents Nicholas Anthony Musashe and The Jander Group, Inc. DONE AND ENTERED this 11th day of August, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2004. COPIES FURNISHED: William M. Furlow, Esquire Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Jason W. Holtz, Esquire Department of Business and Professional Regulation 400 West Robinson Street Suite N-801, North Tower Orlando, Florida 32801-1757 Juana Watkins, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact At all times material hereto, Respondent Robert Marriott has been a licensed real estate broker/salesman under the laws of the State of Florida, trading as Marriott Realty. In February of 1980, in his capacity as a real estate broker/salesman, Respondent obtained an offer to purchase commercial property in Miami from Orlando Villacis, a resident of Ecuador, as purchaser, for a total purchase price of $500,000. In conjunction with the offer, Villacis paid a $20,000 earnest money deposit to be held by Marriott Realty in escrow under the terms of the offer. Villacis' deposit check in the amount of $20,000 was deposited into the Marriott Realty escrow account on February 22, 1980. By March 11, 1980, Villacis' $20,000 had been withdrawn, leaving an escrow account balance of $40. This fact was never reported to Villacis. Having heard nothing definite from Respondent with regard to the offer, and because he spent most of his time out of the country, Villacis engaged the services of attorney Rafael Penalver. Prior to July 1980, Penalver contacted the Respondent and inquired as to the status of the offer. Each time, Respondent told him that the seller was still considering the offer. In July of 1980, Respondent told Penalver that the $500,000 offer had been rejected by the seller and recommended that Villacis present an offer for $570,000. Penalver prepared the offer in the amount of $570,000, again calling for a $20,000 earnest money deposit, which Penalver and Villacis assumed was still in the Marriott Realty escrow account. Receiving no response from Respondent on the second offer, Penalver attempted to contact Respondent by telephone on numerous occasions. When Penalver was successful, Respondent told him that the seller was reviewing the offer. In early September 1980, Respondent advised Penalver that the $570,000 offer had been rejected by the seller. By letter dated September 11, 1980, Penalver raised the offer to $600,000, set a deadline of September 19 for the acceptance of the offer, and directed Respondent to return the $20,000 immediately should the offer not be accepted. After September 19, having heard nothing from the Respondent, Penalver called him, at which time Respondent advised that the offer was being considered by the seller. Penalver then wrote a letter dated October 7, 1980, to Respondent demanding that Respondent deposit the $20,000 into Villacis' account. Again hearing nothing from Respondent, Penalver on numerous occasions attempted to contact him by telephone in order to again demand the immediate return of the $20,000 deposit. Being unsuccessful, Penalver wrote the Respondent on November 20, 1980, and January 22, 1981, both times demanding the return of the $20,000 earnest money deposit. After the letter of January 22, 1981, Respondent agreed to meet with Penalver in Penalver's office. On February 2, 1981, the Respondent and his wife met with Penalver. During that meeting, Respondent advised Penalver that the $20,000 was no longer available and that he and his wife had used the money to make mortgage payments and cosmetic improvements on their personal residence. Respondent challenged Penalver to sue him to get the money back. After discussing Respondent's position with Villacis, Penalver filed a civil action for return of the $20,000. In his Answer to the Complaint filed in that litigation, Respondent admitted that he had used the $20,000 deposit for mortgage payments and other personal household expenses and for payment of his IRS tax deficiency. Villacis obtained a Final Judgment in the civil action in the amount of $20,000 plus interest and costs on October 6, 1982. Respondent testified that he did not return the $20,000 earnest money deposit because, in approximately October 1980, Villacis verbally agreed to loan the $20,000 to Respondent. Villacis strongly denied making any offer of a loan to Respondent. The purported loan agreement would have occurred after Penalver had twice written Respondent regarding immediate return of the $20,000 and seven months after the $20,000 had disappeared from the escrow account. Further, after Penalver sent his November demand letter, Respondent wrote Villacis in December of 1980 asking that Villacis consider loaning Respondent the $20,000 in exchange for an unrecorded mortgage on Respondent's personal residence. Clearly, Respondent's testimony is not credible. As of the date of the formal hearing in this cause, the Final Judgment in favor of Villacis and against Respondent remained unpaid and Respondent had still not returned to Villacis the $20,000 earnest money deposit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained within the Administrative Complaint filed against him and revoking his license as a real estate broker/salesman. DONE and RECOMMENDED this 30th day of April, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1984. COPIES FURNISHED: Tina Hipple, Esquire Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 David I. Schlosberg, Esquire 525 North 27th Avenue, Suite 100 Miami, Florida 33125 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact Respondent Lucille V. Payne has been registered as a real estate salesman with the Respondent since 1975. In October 1976, she was employed by Robert L. Richardson Real Estate, New Port Richey, Florida. Her registration expired on March 31, 1979, and no evidence was presented to indicate that she has renewed her license since that time. (Petitioner's Exhibit 1) On or about October 18, 1976, George and Marie Theodorakos of Hopkinsville, Kentucky were in New Port Richey, Florida looking for a house to purchase. They viewed one house as the result of an advertisement, but decided that they did not like it. The lady at that residence told them that another house nearby was going to be put on the market. This was a home located at 1435 Mill Creek Lane which was owned by a Louisiana Corporation, W. H. Payne, Inc. Respondent was secretary/treasurer of the corporation and her husband, William H. Payne, was president. At the time, Respondent was residing in the house and her husband was employed in Wisconsin. The Paynes had not listed or advertised the house for sale, but contemplated doing so in the future. Mr. and Mrs. Theodorakos decided to purchase the house, and Respondent called her husband that evening and secured his approval for the sale. The next day a contract was executed by the Theodorakoses and Respondent. A standard form deposit receipt contract was used that contained various references to and a signature block for an "agent" who normally would have been the real estate broker or salesman handling the transaction. These references were left blank in the contract. The agreement provided that W. H. Payne, Inc. would sell the property for the sum of $42,000 payable with a $500 deposit and an additional $4,500 by November 4, 1976, with $15,000 cash payable at closing and the balance of $22,000 to be secured by mortgage. Closing of the transaction was to be on or before January 4, 1977. Paragraph 8 of the contract stated as follows: 8. This instrument shall become effective as a contract when signed by the Agent, Buyer, and Seller. If not signed by all parties on or before October 29, 1976, any monies deposited shall be refunded and this instrument shall be void. The prospective purchasers gave Respondent $500 as a deposit and she told them that it would be placed in an escrow account. She also informed them that she would send the contract to her husband in Wisconsin for his signature under the corporate seal. Respondent told Mr. and Mrs. Theodorakos that she was a real estate salesman employed by Richardson Realty, but that she was handling the sale of the house herself without commission. (Testimony of M. Theodorakos, Brooks, Petitioner's Exhibit 2) Respondent mailed the contract to her husband in Wisconsin on October 19 and he received it several days later. He signed and sealed it and placed it in the return mail to Respondent. She received it on an undetermined date prior to October 29, and placed it in the regular mail immediately to Mr. and Mrs. Theodorakos in Hopkinsville, Kentucky. Respondent's return address was on the envelope. Respondent also delivered a copy of the agreement to the Ellis National Bank in New Port Richey which held an existing mortgage on the property to be assumed by the purchasers. Respondent had previously notified the bank to send application forms to the purchasers for assumption of the mortgage. Respondent had also placed the $500 deposit in a bank account of W. H. Payne, Inc. (Testimony of Respondent, W. Payne) The Theodorakoses did not receive the contract mailed by Respondent. On Saturday, October 30, Respondent called Mrs. Theodorakos and told her that she was leaving for Wisconsin and that she could mail the remaining down payment of $4,500 to her. Mrs. Theodorakos told her that the executed contract had not been received and Respondent said that it was in the mail and would arrive probably the following Monday or Wednesday. When subsequent telephone conversations indicated that the contract probably had been lost in the mail, Respondent mailed another copy to the purchasers which they received on November 19, 1976. Also, the mother of Mrs. Theodorakos, Hylo H. Brooks, who had witnessed the agreement and lived in New Port Richey, communicated with Robert L. Richardson, Respondent's broker, concerning the matter, and he obtained a copy of the executed agreement from the bank for her sometime in early November. (Testimony of M. Theodorakos, Brooks, Respondent, Petitioner's Exhibits 2-3, Respondent's Exhibit 1) Subsequent conversations between the parties concerning disposition of the deposit and payment of the remaining portion of the down payment resulted in Mr. Theodorakos informing Mr. Payne, in early December, that he was no longer interested in the house and wanted his deposit returned. Payne informed him that he would not return the deposit since they were in default by not paying the remaining amount for the down payment. Payne informed Theodorakos, however, that they could still have the property if they would send the down payment. Shortly prior to this last conversation, Payne listed the property with a local New Port Richey broker, but inserted a special provision in the listing agreement protecting the prior rights of Mr. and Mrs. Theodorakos to purchase the property. (Testimony of M. Theodorakos, Respondent, W. Payne) Robert L. Richardson had an informal policy in his real estate office that salesmen who sold their own properties must process the transaction through his office, whether or not a commission was involved. Although Richardson testified that he had informed all of his salesmen concerning this policy, Respondent denied being aware of it. After learning of the Theodorakos contract, Richardson terminated Respondent's employment with his office and informed Petitioner in this regard on November 5, 1976. On December 1, 1977, Richardson paid the $500 deposit amount to Mr. and Mrs. Theodorakos because he felt to do otherwise would reflect upon his reputation. (Testimony of Richardson, Petitioner's Exhibits 4-5)
Recommendation That the complaint against Respondent Lucille V. Payne be dismissed. DONE and ENTERED this 16th day of May, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Harold E. Scherr Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Harvey V. Delzer Delzer, Edwards, Coulter and Parker Post Office Box 279 Port Richey, Florida 33568
The Issue The issue in this case is whether the allegations set forth in the Amended Administrative Complaint filed by the Department of Health (Petitioner), against Santana Lashonda Williams, L.P.N. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of nursing. At all times material to this case, the Respondent was licensed as a practical nurse in the State of Florida, holding license no. PN 5195962, with an address of record at 7255 Bucks Ford Drive, Riverview, Florida 33578. Between July 2012 and June 2013, the Respondent was employed as a licensed practical nurse by Armor Correctional Health Services, Inc. (Armor). At all times material to this case, persons employed by Armor, including the Respondent, provided health services to "patients" (inmates) incarcerated in detention facilities operated by the Hillsborough County Sheriff's Office (HCSO), including the Falkenburg Road Jail. The HCSO utilizes a computerized jail management system ("JAMS") that, in relevant part, stores personal and medical data for each inmate incarcerated in the HCSO detention facilities. Personal data stored in JAMS includes names, birthdates and social security numbers. The HCSO treats inmate social security numbers as confidential and private. The names and birthdates of inmates incarcerated in HCSO detention facilities are published online and are available to the public through the HCSO website. Medical data stored in JAMS is confidential and includes screening information obtained by a registered nurse upon an inmate's initial arrival to a detention facility, as well as information about inmate health issues that are presented during incarceration. Licensed practical nurses working at the Falkenburg Road Jail can access JAMS through computer terminals at nursing stations placed in various locations in the facility. At all times material to this case, the Respondent had access to JAMS and to the relevant data contained therein. In May 2013, Anthony Collins, an undercover detective employed by the HCSO, engaged in an investigation of a tax fraud scheme based on information received from a confidential informant. Detective Collins testified persuasively at the hearing, and his testimony is fully credited. The scheme involved using the personal information (names, birthdates and social security numbers) of inmates incarcerated in HCSO detention facilities to file fraudulent federal tax returns and obtain refunds. On May 30, 2013, Detective Collins met with the Respondent's father. During the meeting, the Respondent's father showed Detective Collins a handwritten list of names, birthdates and apparent social security numbers (List #1). The reverse side of the document was a blank form titled, "Armor Correctional Health Services, Inc., Infirmary Shift Report." During the May 30 meeting, Detective Collins learned that the Respondent was employed at the Falkenburg Road Jail. With Detective Collins present, the Respondent's father telephoned someone he represented as the Respondent to discuss List #1 and its delivery to Detective Collins. Detective Collins believed the Respondent to be the source of List #1. HCSO Corporal Kristy Udugawa testified at the hearing that during the course of the undercover operation, she was directed to determine whether List #1 revealed personal data of inmates incarcerated in the Falkenburg Road Jail. Corporal Udugawa interviewed nine inmates and determined that List #1 disclosed their names, birthdates and social security numbers. Corporal Udugawa's testimony is fully credited. At the hearing, a witness who had been incarcerated in the Falkenburg Road Jail during the relevant period testified credibly that his name, birthdate, and social security number were on List #1, and that he had not given consent for the data to be used in filing a fraudulent tax return. The May 30 meeting ended with an agreement between Detective Collins and the Respondent's father to proceed with the scheme. On May 31, 2013, Detective Collins met with the Respondent after a series of telephone calls between Detective Collins, the Respondent, and the Respondent's father. Detective Collins had been directed to bring a computer and related equipment to the meeting so as to begin filing tax returns, and he complied with the instructions. During the May 31 meeting, the Respondent told Detective Collins that on a weekly basis, she would provide personal information for 20 to 30 individuals that could be used to file tax returns and that the proceeds of the tax refunds would be divided evenly between the Respondent and Detective Collins. She directed him to obtain a prepaid cell phone for use in arranging the weekly meeting. During the May 31 meeting, the Respondent advised Detective Collins that she had access to personal information for about 3,400 people. The Falkenburg Road Jail houses about 3,400 inmates. During the May 31 meeting, Detective Collins paid $500 to the Respondent, which she accepted. The Respondent provided Detective Collins a list of six handwritten names (List #2), with birthdates and apparent social security numbers. By deposition, a witness who had been incarcerated at the Falkenburg Road Jail during the relevant period testified that List #2 disclosed his name, birthdate, and social security number, and that he had not given consent for the data to be used in filing a fraudulent tax return. The testimony is credited. The interaction between the Respondent and Detective Collins was recorded through the use of electronic audio and video surveillance equipment. At the conclusion of the May 31 meeting, the Respondent was arrested by HCSO officers who had been monitoring the surveillance. Deputy Paul Baez, one of the officers participating in the surveillance monitoring, testified at the hearing that after having been advised of her "Miranda Rights," the Respondent admitted that she had obtained personal data of inmates at the jail and had sold the data. Deputy Baez further testified that the Respondent admitted "doing drops," which Deputy Baez explained involved obtaining the personal data of other people and selling it for use in fraudulent tax return filings. Deputy Baez's testimony was persuasive and is fully credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order finding the Respondent guilty of the violations set forth herein, revoking the Respondent's license as a practical nurse, and imposing a fine of $10,000. DONE AND ENTERED this 24th day of February, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2014.
The Issue Whether Respondent should increase its deposit pursuant to Section 624.411(3), Florida Statutes?
Findings Of Fact Petitioner is an insurance company domiciled in West Virginia which does business in several states, including Florida. Petitioner has been in existence for over 80 years and has conducted business in Florida for the past 30 or 40 years. Petitioner currently has approximately $540,000 on deposit in Florida, pursuant to Section 624.411(3), Florida Statutes. Florida has adopted the Uniform Insurer's Liquidation Act. Amounts held on deposit pursuant to Section 624.411, Florida Statutes, are held for the protection of all policyholders and creditors of the company who are located in a state which has adopted the Uniform Insurer's Liquidation Act. Petitioner has approximately $2,6000,000 on deposit in all states, of which approximately $1,300,000 is held for the protection of all policyholders. Amounts held on deposit in Florida can earn interest which is paid over to the Petitioner, and the deposits are held without cost to the Petitioner. Petitioner may at any time exchange the type of security or investment vehicle held on deposit as long as the market value of the replacement securities is equal to or exceeds the amount required to be on deposit. Amounts held on deposit, however, are not available to Petitioner for its operations and cannot be used to pay claims. Also, if the Petitioner wants to reduce the amount on deposit, it must receive approval from Respondent. For the calendar years ending 1983 through 1987, Petitioner's financial situation, as reflected in the financial reports filed with Respondent was as follows: YEAR CAPITAL & SURPLUS AND NET WORTH GAINS (LOSSES) FROM OPERATIONS 1983 $7.08 Million $1.51 Million 1984 7.43 2.30 1985 9.22 (0.63) 1986 8.13 (1.36) 1987 5.37 (3.22) Additionally, under the method of accounting used by the Respondent to evaluate the financial standing of insurance companies, Petitioner's Capital and Surplus and Net Worth would be lower than that reflected in the financial reports. Respondent's Review Procedures In determining the maximum amount of deposit which may be required under Section 624.411(3), Florida Statutes, Respondent uses a formula which allocates a portion of an insurance company's total obligations to Florida by multiplying the total obligations by a fraction the numerator of which is direct writings in Florida for the latest reporting period and the denominator of which is the total direct writings of the company for the same reporting period. Applying this formula to the financial data provided by Petitioner in its 1987 Annual statement or to the data in the March 31, 1988 Quarterly statement filed with the Respondent results in a determination that Respondent may require Petitioner to maintain the maximum deposit allowed by Section 624.411(3), Florida Statutes, if Respondent determines that good cause exists and that such an amount is warranted. In determining the amount of the deposit which should be required, Respondent looks at the following guidelines: (1) Solvency of the company, (2) Liquidity of the company, (3) Number of consumer complaints against the company, (4) Volume and concentration of Florida business conducted by the company, (5) history of regulatory compliance of the company, and (6) overall attitude of the company. Petitioner is solvent and liquid, under a strict interpretation of what these words mean, but both its solvency and liquidity have declined over the past year. Petitioner has taken steps which it believes will reverse the recent financial decline it has suffered. On the other hand, if Petitioner sustains the same loses it sustained last year, it may be insolvent by the end of this year.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent issue a Final Order finding that Petitioner does not need to increase its deposit pursuant to Section 624.411(3), Florida Statutes, at this time. DONE and ORDERED this 29th day of September, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1988. APPENDIX The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Accepted. RO1 and 8. Accepted as part of the record in this proceeding, but not as a Finding of Fact. First two sentences accepted. RO3 and 4. Third sentence rejected as not a finding of fact. Accepted. RO2. 5.-6. Rejected as irrelevant. First two sentences accepted generally. RO14. Last sentence rejected as not a finding of fact. Accepted. See Conclusions of Law section of the RO. First sentence accepted generally. RO10-11, and Conclusions of Law section of RO. Rest of paragraph rejected as argument; but see Conclusions of Law Section of RO. Accepted generally. See Conclusions of Law section of RO. ,12.,13. Rejected as argument. Rejected as irrelevant and argument. Whether the company will increase its profits is as speculative as the department's assertion that the company will be insolvent. The fact that the company made a profit for the first quarter of 1988 is not supportive of the prior sentence. See financial data for the first quarter of 1987 and compare with data for all of 1987. ,16.,17. Rejected as irrelevant, argument, and not findings of fact. Respondent's Proposed Findings of Fact Proposed Finding Ruling and RO of Fact Number Accepted generally. RO1. Rejected as not a finding of fact. Mr. Kummer, however, was accepted as an expert. Accepted. RO2. ,5.,6.,7. Accepted. RO4 and 6. 8.,9.,10.,11., Accepted. RO8. Accepted as set forth in RO9. The true net worth of the company cannot be conclusively established. Rejected as argument. Rejected as not a finding of fact. Accepted for proposition that net worth has declined. RO8. Cannot determine where 44 percent figure comes from. Accepted generally. RO14. Not a finding of fact. ,19. Accepted generally. RO10,11. Rejected as irrelevant. See ruling on Petitioner's proposed finding of fact 14. Rejected as argument. COPIES FURNISHED: William M. Furlow, Esquire 800 Barnett Bank Building 315 South Calhoun Street Tallahassee, Florida 32301 Gabriel Mazzeo, Esquire Michael C. Goodwin, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32300-0300 Don Dowdell General Counsel The Capitol, Plaza Level Tallahassee, Florida 32300-0300 =================================================================
The Issue The issue is whether Helena Mason or James Maher is entitled to the proceeds from the sale of the contents in a safe deposit box remitted as unclaimed property to the Department of Financial Services, Division of Unclaimed Property (Department).
Findings Of Fact The Department is charged with the responsibility and duty of delivering or paying over to a claimant property paid or delivered to the Department under the provisions of the Unclaimed Property Act, codified in chapter 717, Florida Statutes (2017). Unclaimed property is property that has been abandoned or lost by its owner for an extended period of time. Over the last 15 years or so, the Department has processed approximately 5,000,000 claims and paid $3.1 billion to the claimants. Claims concerning the contents of safe deposit boxes make up approximately five percent of the total claims processed by the Department. On December 27, 1996, Mr. Maher opened a safe deposit box account with SunTrust Bank in Orlando. The account was opened in the names of James Maher "or" Helena Mason, a friend who had resided with him for several years. Mr. Maher added her name to the account because he was unmarried, had no heirs, and did not want the contents of the safe deposit box to escheat to the State. Mr. Maher paid all fees on the box until 2010 when he stopped because of financial problems. The relationship between the two has ended. An "or" account means that either person listed on the account legally may claim all or part of the contents held in the account at any time prior to the items being declared unclaimed and then sold by the Department. § 717.12403, Fla Stat. See also § 655.937, Fla. Stat. (unless specifically provided otherwise in the lease or rental agreement, all lessees are permitted access to the safe deposit box and its contents). When the account was opened, Mr. Maher and Petitioner also agreed to be bound by the bank's Safe Deposit Box Rules and Regulations, which provide that each person had access to the "entire contents of the box." Dep't Ex. 4. Bank records reveal that between December 1996 and July 2005, Mr. Maher accessed the box nine times, while Ms. Mason never accessed the box. Neither person listed on the account attempted to remove any of the contents of the safe deposit box before the contents were treated as unclaimed property and sold. In 2015, SunTrust Bank reported to the Department an unclaimed safe deposit box in the names of James Maher or Helena Mason for the 2014 reporting year. The report was made after rent had not been paid on the box since 2010 and the account had become dormant for at least three years. If the contents of a safe deposit box are not returned to the owners of the account within a three-year dormancy period, the holder (the bank) must report and remit that property to the Department. Beginning no later than April 2012, the bank attempted to notify the two that the account was dormant. Dep't Ex. 4. The report states that Mr. Maher's address was listed as 2227 Catbriar Way, Oviedo, while Ms. Mason's address was listed as 1044 Chatham Pines, Apartment 20, Winter Springs. The report also states that the safe deposit box contained items of jewelry, coins, and miscellaneous personal papers, such as deeds, tax returns, surveys, and insurance policies. The jewelry and coins were sold by the Department pursuant to section 717.122, Florida Statutes, at an unclaimed property auction on July 13, 2017. The current amount held by the Department in the unclaimed property account is $18,871.46. Any person claiming an interest in unclaimed property may file a claim with the Department. § 717.124(1), Fla. Stat. Claims submitted to the Department must be made on prescribed forms together with documentation proving entitlement to the unclaimed property. Fla. Admin. Code R. 69G-20.0021(1). A claim form must be fully completed and manually signed by the claimant in order to be considered "complete." Fla. Admin. Code R. 69G- 20.0021(1)(b). The claimant must submit proof that he/she is the person listed on the account and entitled to the property. Fla. Admin. Code R. 69G-20.0021(4)(c)2. The Department always has construed a complete claim as one in which the claimant provides proof that he/she is the same individual listed on the account. If this is established, that person is "entitled" to the proceeds. The Department does not attempt to sort out who actually owned the contents of the safe deposit box before the contents were deemed to be unclaimed property. Therefore, the issue of which person listed on the account actually owned all or part of the contents is immaterial in determining who is entitled to the proceeds. On October 26, 2017, the Department received a claim filed on behalf of James Maher for the unclaimed property account. In support of his claim, Mr. Maher provided a copy of his driver's license and a Notice of Change in Benefits from the United States Social Security Administration, which demonstrated a connection to both the social security number submitted with his claim and the Catbriar Way address reported to the Department. The claim was deemed to be complete when it was filed on October 26, 2017. Mr. Graham, the director of the Department's Division of Unclaimed Property, gave a comprehensive description of the process used by the Department when conflicting claims are filed. His testimony was not disputed. He established that Mr. Maher's claim was "complete," "it meets every single item required to prove that it's right," and "it was done correctly." On November 13, 2017, the Department received a second claim filed by Asset Finders on behalf of Ms. Mason for the same unclaimed property account. In support of her claim, Asset Finders provided a copy of Ms. Mason's driver's license and the results of a search, which demonstrated a connection between Ms. Mason and the address reported by her to the Department. The claim was deemed to be complete when it was filed on November 13, 2017. After reviewing the competing claims, and verifying the information provided by the bank, on January 16, 2018, the Department issued a notice of intent to deny the claim filed on behalf of Ms. Mason and to approve the claim submitted by Mr. Maher. The basis for this decision was that Mr. Maher was the first person to submit a complete claim. This decision comports with the statutory mandate in the "Conflicting Claims Statute," section 717.1241(1)(a), which provides that the first person to submit a complete claim will be given the proceeds. Ms. Mason argues that the claim filed by Mr. Maher was incomplete because rule 69G-20.0021(1)(b) requires that the form must be signed by all persons making a claim, and Mr. Maher failed to secure her signature on his claim form before he submitted it to the Department. This construction of the rule would produce an absurd result and has been rejected. Petitioner also argues that she is the owner of the jewelry and therefore entitled to the proceeds. She testified that the jewelry was first owned by her grandmother, passed on to her mother, and then given to her in 1995. For safekeeping purposes only, Mr. Maher then placed the jewelry in the safe deposit box. On the other hand, Mr. Maher testified that the jewelry belonged to him, and he received it after his mother passed away in 1996. To resolve this dispute, however, it is unnecessary to determine who actually owned the jewelry. Once the contents are deemed to be unclaimed, ownership is not a statutory consideration in resolving conflicting claims.1/ In the same vein, Petitioner argues that a claimant must show entitlement to the property in order to prevail and Mr. Maher failed to do so. On this issue, the Department construes the statute to mean that if a claimant is the same person named on the account, he/she is "entitled" to the proceeds. This is a reasonable and logical interpretation of the statute. Mr. Maher satisfied this requirement. Petitioner argues that even though Asset Finders did not file her claim until November 13, 2017, she should prevail because she signed her claim form on October 21, 2017, before Mr. Maher signed and filed his claim. This contention is rejected, as the relevant statutory test is clear and requires the Department to award the proceeds to the claimant filing the first complete claim. Finally, Petitioner argues that she filed an affidavit with her application, while Mr. Maher did not. However, affidavits are required only if the proceeds from the sale are less than $250.00. § 717.124(3), Fla. Stat. By a preponderance of the evidence, Mr. Maher has established entitlement to the proceeds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order approving the delivery of the proceeds from the sale of the contents of the safety deposit box to Mr. Maher. DONE AND ENTERED this 17th day of October, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2018.
The Issue The issues are whether Respondents committed the offenses set forth in the Administrative Complaint, and if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence presented at the hearing, the undersigned makes the following findings of fact: At all times material to this proceeding, Mrs. Bashant held a Florida real estate salesperson license, number 0551150, which was involuntarily inactive. At all times material to this proceeding, Mr. Bashant held a Florida real estate broker license, number 0419768, which was involuntarily inactive. At all times material to this proceeding, Mr. Bashant was the broker of record for The Real Estate Group, Inc., a corporation which was no longer in business and which had no escrow accounts. The corporation's license to do business as a real estate agency has been inactive since May 12, 1993. Florida's Department of State, Division of Corporations, administratively dissolved the corporation on August 13, 1993. On December 8, 1993, Mr. Bashant executed a written offer to purchase a house belonging to John and Carolyn DelPrete (Sellers). The Bashants wanted to buy the house, located at 194 North East Blairwood Terrace, Jensen Beach, Martin County, Florida, as their personal residence. Mr. Bashant gave the written offer to Stacy Mathias (Mathias), who was the Sellers' exclusive listing agent. The offer called for an initial cash deposit of $1,000 and an additional payment of $9,000 in the form of a promissory note, payable at closing. The $1,000 cash deposit was to be held in trust by the Real Estate Group, Inc. This first offer reflects that the buyers rather than the sellers would pay for title insurance. Mr. Bashant never intended to make a $1,000 cash deposit in any escrow account or to make and deliver a $9,000 promissory note at closing. Instead, he only intended to execute and deliver a $10,000 promissory note at closing. He executed a $10,000 promissory note but did not deliver it to anyone until he gave it to his attorney in January of 1994. Sometime between December 8, 1993 and December 14, 1993, Mathias presented the offer to the Sellers. They would not agree to accept the $9,000 promissory note at closing. The Sellers also wanted to make certain other changes and additions to the contract. Mathias prepared a second draft of the original offer which required an initial cash deposit of $1,000 to be held in escrow by The Real Estate Group, Inc. It also required an additional $9,000 cash deposit to be placed in escrow within ten (10) days after the effective date of the contract. The second draft of the offer did not include any language referring to a promissory note payable at closing. In the second draft, seller was responsible for providing title insurance. After receiving the second draft of the contract, the Bashants added and initialed a change in paragraph II(b) stating that a $9,000 promissory note would be paid at closing. The Bashants also made and initialed three other changes: (a) They added the master bedroom bedspread to the list of personalty in paragraph I(c); (b) They added "+ or -" to the finance amount in paragraph II(e); and (c) They added "+ or -" to the finance amount in IV(a). The Bashants signed and returned the contract to Mathias. They did not date their signatures. Mathias presented the contract to the Sellers who initialed the changes in paragraphs II(e) and IV(a). However, the Sellers struck through the language adding the master bedroom bedspread in paragraph I(c) and the promissory note language in paragraph II(b). The Sellers changed the party responsible for providing title insurance to buyer rather than seller and changed the time for acceptance from December 14, 1993 to December 15, 1993. On December 14, 1993, the Sellers initialed their changes and deletions, signed the contact, and returned it to Mathias. Mathias called Mr. Bashant on the telephone to discuss each of the changes. She specifically told Mr. Bashant that the Sellers would not accept a promissory note at closing. Mr. Bashant responded that he had no problem eliminating the promissory note language because he had just sold some cars and had the money to make the cash deposits. He agreed to initial the changes and pick up the contract. On December 15, 1993, Mathias delivered the contract to the Bashants. They initialed the change crossing out the bedspread in paragraph I(c). They did not initial the change eliminating the promissory note language in paragraph II(b), the change requiring the buyer to pay for title insurance in paragraph V, or the change setting December 15, 1993, as the time for acceptance in paragraph III. The Bashants added and initialed a provision requiring the Seller to pay $500 towards the cost of the title insurance in paragraph V. On December 16, 1993, the Bashants returned the contract to Mathias. Mathias told the Sellers about the last change requiring them to pay $500 towards title insurance. The Sellers would not agree to this provision. Therefore, Mathias agreed to pay $500 towards the cost of the title insurance to save the sale. With that understanding, the Sellers initialed the final change in the title insurance provision. Mathias never reduced to writing the agreement that she would pay $500 towards the cost of title insurance; however, she informed Mr. Bashant of her responsibility and he expressed no objection. The contract was contingent on the Bashants obtaining financing and being able to construct a 15' by 30' pool on the property. As of December 16, 1993, Mathias and the Sellers assumed that the contract was bilateral. Mathias never specifically asked the Bashants to initial the deleted promissory note language, the change in the time for acceptance, or the change in the party responsible for providing title insurance. Mr. Bashant told Mathias he would provide her with copies of the checks that he had deposited in escrow. He did nothing to correct the false impression that he had made the cash deposits. Sometime during December of 1993, the Sellers returned a cash deposit to potential buyers who had a preexisting right of first refusal to buy the Sellers' home. The record does not reveal a specific reason for the couple's decision not to exercise their option to purchase the Sellers' home. On December 23, 1993, Mrs. Bashant took several members of her family to see the Sellers' home. Mr. Bashant was not present at the time they made the visit. Shortly after January 1, 1994, the Bashants picked up a survey of the Seller's home from Mathias's office. The Bashants needed the survey to assist them in determining whether they could construct a 15' by 30' pool on the property. On January 4, 1994, Mr. Bashant faxed a message to Mathias stating that the pool could not be built as suggested by the Sellers because of a 25' buffer on the back side of the property. The message stated that Mr. Bashant would check on alternatives but that he wanted Mathias to be aware of the problem. Mr. Bashant also asked Mathias to send him a copy of the "bilateral contract." On or before January 5, 1994, Mathias talked to Mr. Bashant who said he would pick up a copy of the "bilateral contract" and give her a copy of the checks he had deposited in escrow. Later that day, a friend of the Bashants, Al Fontaine, picked up a copy of the contract for Mr. Bashant. Mr. Fontaine informed Mathias that he did not have the deposit check copies but that Mr. Bashant would furnish them. On January 13, 1994, Mr. Bashant told Mathias he would apply to the county for a variance to construct the pool. Mathias informed Mr. Bashant that another real estate agent, Carol Pierson, had clients who were interested in buying the property. Mr. Bashant replied that he was willing to step aside if someone else wanted to purchase the property. Carol Pierson took her clients to view the house. These clients were former prospective buyers who had recently received a settlement and were interested in purchasing a home immediately. They knew about the contract between the Bashants and the Sellers. Either no one ever informed the prospective buyers that the Bashants were willing to step aside or they were not interested in buying the house. In any event, they never made an offer. On January 19, 1994, Mathias sent Mr. Bashant a letter informing him that the prospective buyers had not made an offer. She assumed Mr. Bashant was working on the variance for the pool and reminded him that he had not produced copies of the checks deposited in escrow. On January 22, 1994, Mathias sent Mr. Bashant another letter demanding evidence that he had deposited the funds into the escrow account. Mathias advised Mr. Bashant that she intended to file a complaint with the Florida Real Estate Commission (Commission) failing the production of such evidence. On January 24, 1994, Mathias received a letter from Mr. Bashant stating that he understood the contract to be void when Carol Pierson's clients viewed the house. He informed Mathias of his attorney's opinion that the contract was null and void because of certain dates and signatures. Mr. Bashant enclosed a copy of a letter from Coral Gables Federal denying approval of the loan due to insufficient income. On January 27, 1994, the Sellers' attorney sent letters to the Bashants and The Real Estate Group, Inc., demanding a closing date or $10,000. On February 8, 1994, the Bashants' attorney responded claiming that contract contingencies had not been met and that the parties never agreed to the form of deposit. After Mathias filed a complaint with the Commission, Jonathan Platt, Petitioner's investigator, called the Bashants. He spoke with Mrs. Bashant who referred him to her husband. Mr. Bashant admitted that The Real Estate Group, Inc., was inactive and that naming it as the escrow agent was his mistake. He admitted that he had not deposited any funds in escrow. The record does not contain clear and convincing evidence that the Sellers lost potential buyers as a result of dealing with the Bashants. For some unspecified reason, one couple declined to exercise their option to buy and requested a refund of their deposit; however, no one contacted this couple when it became apparent that the sale to the Bashants would not close. Carol Pierson's clients looked at the house but, for some unknown reason, did not make an offer. Mathias never told Ms. Pierson that her clients could not make an offer or that the Bashants were willing to step aside. 34 During the period from December 16, 1993 through January 24, 1994, Mr. Bashant misrepresented and concealed his intentions concerning the contract. He never intended to deposit funds in escrow but he let Mathias believe he had made the deposits. The contract was improperly executed because the parties had not agreed in writing on the form of the escrow deposits. However, Mr. Bashant knowingly made false promises and operated under false pretenses by telling Mathias he would furnish her with copies of checks that did not exist. Mrs. Bashant signed the contract but never had any discussions with Mathias concerning the terms. There is no record evidence that Mrs. Bashant was aware of or participated in her husband's representations and promises to Mathias. On May 31, 1991, the Commission entered a final order against Mr. Bashant and the Real Estate Group, Inc. The Commission reprimanded Mr. Bashant's license, fined him, and placed him on one (1) year of probation for violation of Sections 475.25(1)(b), 475.25(1)(e), and 475.25(1)(k), Florida Statutes (1989). The basis of this disciplinary action included Mr. Bashant's failure to maintain trust funds and depositing and intermingling personal funds with trust funds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that: (1) Respondent Diana L. Bashant is not guilty of violating any Florida statute; and (2) Respondent Gregory J. Bashant is guilty of violating Sections 475.24(1)(b) and 475.24(1)(o), Florida Statutes. It is further recommended that the Commission require Respondent Gregory J. Bashant to pay an administrative fine of $2,000 and revoke his license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of December,1994. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December 1994. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact (FOF) submitted by the parties to this case. Petitioner's Proposed Findings of Fact 1-2. Accepted in FOF 1-2 except for subordinate information. 3-4. Accepted in FOF 4-5 except for subordinate information. 5. Accepted in FOF 3. 6-7. Accepted as modified in FOF 6. Accepted in FOF 7-8. Accepted in FOF 11 except as to placement in sequence of events 10-13. Accepted in substance in FOF 12-16. 14-25. Accepted in substance in FOF 19-32. Rejected. Accepted as modified in FOF 34. Accepted in FOF 36. Considered as an argument concerning the credibility of a witness. Respondent's Proposed Findings of Fact 1-2. Accepted in FOF 1-2. Accepted in substance in FOF 4-5. Accepted as subordinate information. There is no competent substantial evidence that Mr. Bashant ever presented a copy of Respondent's Exhibit 1 to Mathias. Rejected; no persuasive competent substantial evidence. Accepted in FOF 3. Accepted as subordinate information. Accept that Mr. Bashant prepared Petitioner's Exhibit 1 in FOF 4-5; balance of proposed finding not supported by persuasive competent substantial evidence. 9-13. Accepted in substance in FOF 8-13. Accepted in FOF 22-23. Accepted in substance in FOF 20. Accepted in FOF 21. Accepted in substance in FOF 24-25. Accepted in substance in FOF 24-25 except there is no persuasive competent substantial evidence that Mr. Bashant disclosed a financial problem at that time. 19-20. Accepted in substance in FOF 24-25. 21-22. Accepted in FOF 28 except for accuracy of January 29 date. Accepted in FOF 30. Accepted in FOF 35. COPIES FURNISHED: Theodore R. Gay, Esquire Senior Attorney Department of Business and Professional Regulation 401 North West 2nd Avenue, N607 Miami, Florida 33128 William D. Anderson, Esquire Anderson & Galante Post Office Box 288 Stuart, Florida 34995 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay General Counsel Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
