Recommendation Based upon the Findings of Fact and Conclusions of Law stated above the Hearing Officer would recommend that the Florida Real Estate Commission issue a letter of admonition to Leroy Wilson clarifying his responsibilities and the maintenance of his financial affairs and proper business office when operating as a broker. DONE and ORDERED this 22nd day of June, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Henry Latimer, Esquire Mavrides and Latimer 5353 Southwest 40th Avenue Fort Lauderdale, Florida 33314
Findings Of Fact The Respondents at all times pertinent hereto are licensed real estate brokers having been issued, in the case of Lorraine B. Anthony individually, license number 0123486, and in the case of Lorraine Anthony Realty, Inc., as a corporate broker, license number 0181092. At all times pertinent hereto, Respondent Lorraine B. Anthony was licensed and operating as a real estate broker and the sole "qualifying" broker and officer of Respondent Lorraine Anthony Realty, Inc. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes and appurtenant rules governing the licensure standards and practice standards for real estate brokers, broker salesmen and salespersons in the State of Florida and conducting disciplinary proceedings inconnection therewith. On or about May, 1982, Mr. Leif Rosenquist journeyed to Lee County, Florida from his native Sweden with the intention of purchasing real property for the purpose of building a residence for himself and his wife. He became acquainted with Ida Chacko, a real estate salesperson operating in Lee County, Florida, and ultimately entered into a real estate sales contract partly at her behest. Ida Chacko was not then employed by the Respondent, Lorraine B. Anthony nor the Lorraine Anthony Realty, Inc. Mr. Rosenquist gave Ida Chacko approximately $10,000 to place in an escrow account for him in order to effect a deposit and down payment on that real estate purchase. This transaction ultimately did not occur. Ida Chacko, however, retained $7,000 of those funds which were placed in an escrow account with Tri-County Title Company in approximately May of 1982. Shortly thereafter Ms. Chacko became an employee and salesperson with the Respondents real estate firm, with the Respondent Lorraine Anthony as her managing broker. In approximately August, 1982, Mr. and Mrs. Rosenquist entered into a "deposit, receipt and sales contract" with Santa Barbara Development Corporation and Thomas Romano, its president, for the purchase of a piece of property upon which they wished Mr. Romano to construct a duplex which they would use as their residence. The transaction was arranged by Ida Chacko. Mr. Romano owned that property and contracted with the Rosenquists to construct the dwelling. The contract terms required the payment of a $500 earnest money deposit to Mr. Romano and Santa Barbara Development Corporation. Ida Chacko assured Mr. and Mrs. Rosenquist that the $500 earnest money deposit required by the contract would be paid to Mr. Romano from the $7,000 escrow account which she maintained on their behalf. In fact, Ms. Chacko had, prior to that time, withdrawn the $7,000 from the escrow account with Tri-County Title Company for unknown purposes. Further, Ms. Chacko never paid over the $500 earnest money to the Respondent's escrow account nor to Mr. Romano or Santa Barbara Development Corporation. The contract, moreover, was contingent in its terms on the Rosenquists being able to obtain financing at terms stated on the face of the contract, secured by a mortgage with Barnett Bank. The Rosenquists however, were unable to secure compatible financing in accordance with the contractual terms regarding that financing and so that contingency was never satisfied and the Rosenquists elected to never consummate that transaction. That contingency never being satisfied, the Rosenquists never actually defaulted on the contract. Moreover, during the pendency of the Rosenquists attempts to obtain the financial arrangements with Barnett Bank, the time period stated in the contract during which it could be enforceable, expired. Pursuant to a later contract entered into September 26, 1982, the real estate involved in the Rosenquist transaction was sold to Ida Chacko's daughter. Mr. Romano sold her the property and ultimately constructed a duplex dwelling for Ms. Chacko's daughter on that property according to the same construction plans referenced in the Rosenquist contract and for a higher purchase price. He thus incurred no financial detriment caused by the failure of the Rosenquist transaction, nor did the Santa Barbara Development Corporation. Some two months after the failure of the Rosenquist transaction, Mr. Romano sought payment of the $500 earnest money deposit he believed he was due from the Respondent Lorraine B. Anthony and Lorraine Anthony Realty, Inc. She initially refused to pay him the $500. The Respondent had no knowledge that the Rosenquist's agreement had been entered into, knew nothing of its particulars, nor of any representations made by any of the parties to the agreement, nor Ida Chacko, until approximately two days after the contract was executed. She learned of the contract when her office manager, Ellen Smith, told her that no earnest money deposit had been obtained on that contract. She immediately instructed Mrs. Smith to ascertain that an earnest money deposit was immediately obtained according to the terms of the contract. After later consulting with Ida Chacko and learning that the transaction never reached fruition, she did not inquire further concerning the earnest money deposit or other particulars regarding that transaction, believing that she had no reason or duty to do so. The Respondent, Lorraine B. Anthony never met with the Rosenquists nor discussed any facet of the transaction with them nor made any representations to them with regard to the transaction. She never discussed the transaction or made any representations regarding it to Mr. Romano, until he finally demanded the $500 earnest money deposit some two months after the failure of the contract with the Rosenquists and after the consummation of the second contract with Ida Chacko's daughter. The Respondents had had a successful business relationship with Mr. Romano prior to these occasions and desired to continue such relationship and therefore, in an abundance of caution, ultimately paid the $500 to Mr. Romano. He has no claim presently pending against the Respondents. Helen Smith, the Respondents' office manager, established that it was the Respondents' consistent policy to always obtain an earnest money deposit contemporaneously with the execution of a real estate sales contract in which she or her agents were involved, and to deposit such money in her escrow account. Ida Chacko was well aware of this policy at the time the Rosenquist transaction was entered into, but never obtained the earnest money deposit either directly from the Rosenquists nor carried out her assurance to the Rosenquists that she would obtain the required $500 earnest money deposit from the $7,000 "escrow account" supposedly on deposit on their behalf with Tri- County Title Company (or another unidentified party). The $7,000 which Ms. Chacko had on deposit on behalf of the Rosenquists was obtained before she was ever employed with the Respondents' firm as an agent of the Respondent and the Respondent never knew of the existence of those funds. The only connection Respondent and her firm had with this transaction and her only representation made with regard to this transaction was that Mrs. Smith should make sure that agent Chacko placed the $500 earnest money deposit in the proper escrow account in favor of Mr. Romano and Santa Barbara Development Corporation. In any event the Respondents never received the $500 earnest money deposit. The only representation made to the Rosenquists with regard to the earnest money deposit was that of Ida Chacko to the effect that she would pay it over to the Respondents' escrow account from the funds she supposedly had on deposit on the Rosenquists' behalf, which of course, she failed to do. Neither the Respondent, Lorraine B. Anthony, nor any of her agents, ever represented to Mr. Romano or Santa Barbara Development Corporation that the $500 was held on deposit on his behalf or otherwise. Finally, because the Respondents never received the $500 deposit, they could not possibly have return edit to the purchasers without the prior knowledge or consent of the seller, as alleged in Count II of the Complaint. In summary, the Respondent instructed her office manager to see that Ida Chacko received the deposit money and placed it in the escrow account at the time she believed the contract to be valid and enforceable and Ida Chacko failed to comply, thus flouting the Respondent's clearly defined office policy regarding the escrowing of deposit money, of which policy Ida Chacko was previously well aware. The Respondent had had prior and subsequent difficulties with Ida Chacko concerning her failure to follow this and other office policies required by the Respondents. The Respondent only learned definitely that no deposit money had been received nor deposited in her escrow account, approximately two months after the contract was executed and long after the contract was automatically cancelled. She at no time received any commission related to any transaction involving the subject parcel of real property. She never made any representations of any kind to any of the parties to the deal.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint against Lorraine B. Anthony and Lorraine Anthony Realty, Inc. be DISMISSED in its entirety. DONE and ENTERED this 30th day of April, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 Harvey Rollings, Esquire PAVESE, SHEILDS, GARNER, HAVERFIELD, DALTON & HARRISON Post Office Box 88 Cape Coral, Florida 33910 Harold Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Rule 3C-560.803, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, the Department of Banking and Finance (Department), is the state agency charged with the implementation of the Money Transmitters' Code (Code), Chapter 560, Florida Statutes, and with regulation of the entities registered thereunder. Intervenor, Advance America, Cash Advance Centers of the State of Florida, Inc. (Advance America), is a check casher doing business in Florida, registered under Part III of the Money Transmitters' Code and regulated by the Department. Petitioner, Wendy Betts, is a resident of the State of Florida who, from July 1996 through March 1999, engaged in check-cashing transactions with a number of registered check cashers, including Advance America. Petitioner, Donna T. Reuter, is a resident of the State of Florida who, from 1996 or 1997 until September 2000, engaged in check-cashing transactions with a number of registered check cashers, including Advance America. Petitioners engaged in check-cashing transactions because they needed cash. At the time Petitioners engaged in the check-cashing transactions, they had no other source available to meet their need for cash. During the three years that Petitioner Reuter engaged in the check-cashing transactions described in paragraph 4, the procedures used by each of the check-cashing businesses was the same or very similar. Petitioner Reuter would write a check to the check-cashing business for the amount of cash that she wanted, plus the fee the business charged for cashing the check. The check-cashing business would, in turn, agree to hold the check until the end of Petitioner Reuter’s payday, or for 10 to 14 days. At the agreed-upon time, the check-cashing business would deposit the check written by Petitioner Reuter unless she came back to the business to redeem the check. Petitioner Reuter could redeem the check by giving the check casher currency in the amount of the check. Upon receiving the currency, the check-cashing company would give Petitioner Reuter the check that she had previously written to the company. In many instances, when Petitioner Reuter went to the check-cashing business and redeemed her check, after redeeming the previously written check, she would write another check to the check-cashing company. That check would be written for the amount of cash Petitioner Reuter wanted, plus the amount of fees the company charged for cashing the check. Again, the understanding between Petitioner Reuter and the check-cashing company was that the company would deposit the check in approximately two weeks, or at the end of her next payday, unless she came in to redeem it. Petitioner Reuter refers to this consecutive transaction as a “rollover.” During the period between 1996 or 1997 and 1999, Petitioner Reuter engaged in numerous check-cashing and rollover transactions with approximately seven check-cashing companies. These transactions became problematic for Petitioner Reuter because of the number, frequency, and on-going nature of the transactions. Petitioner Reuter often had checks being held for her at several check-cashing companies at the same time. Eventually, it became evident to Petitioner Reuter that the total amount of the checks that were being held for her by the various check-cashing companies exceeded the amount of funds she had in her checking account or otherwise available to her. Petitioner Reuter was afraid that she could be criminally prosecuted if, on the agreed-upon date, she could not redeem the checks she had written to the check-cashing companies or did not have the funds in her checking account to cover the checks when the check-cashing companies deposited them. Petitioner Betts engaged in check-cashing transactions with about nine check-cashing companies. At one point, Petitioner Betts was doing business with three check-cashing businesses during the same period of time. As part of these transactions, Petitioner Betts wrote a check to each check- cashing company for the amount of cash she wanted to receive, plus the amount of the company’s fee. In turn, the company gave Petitioner Betts currency for the amount of the check, exclusive of the fees it charged for cashing the check. The check-cashing company agreed to hold the check for about two weeks or until Petitioner Betts’ next payday, or allow her to come in and redeem the check. If Petitioner Betts could not redeem the check or did not have the funds in her checking account to cover the check, at least one company agreed to extend the time for which it would hold the check. Such an extension was subject to Petitioner Betts’ paying the check-cashing company a fee over and above what she had paid for the initial check-cashing transaction. In the typical transaction, Petitioner Betts would redeem the check at the time specified in the initial agreement but would then, in a consecutive transaction, write another check for the amount of cash she wanted to receive, plus the fee charged by the check-cashing company for cashing the check. The check-cashing company would cash the check for Petitioner Betts and give her the amount of money written on the check, minus the amount of the check-cashing fee. Petitioner Betts believed that she would be criminally prosecuted and/or lose her driver’s license if she did not redeem her checks on the agreed-upon date or did not have funds in her checking account to cover the checks when they were deposited by the check-cashing companies. As a result of Petitioner Betts’ continuing, repeated, and simultaneous check-cashing transactions with numerous check- cashing businesses and her financial situation, she was unable to redeem the checks she had written to the check-cashing companies. Moreover, on the dates that the check-cashing companies were to deposit Petitioner Betts’ checks, she typically did not have sufficient funds in her checking account to cover the checks she had written to the companies. A "check cashing" occurs when the check casher receives the customer's personal check and gives currency to the customer. The customer's check covers the amount of currency provided as well as a fee for the service. "Deferred deposit," also sometimes referred to as "payday lending" occurs subsequent to the check-cashing transaction when a check casher agrees to hold the customer's check for a certain agreed period of time. Petitioners are not currently engaged in check-cashing transactions and do not reasonably anticipate engaging in check- cashing transactions in the future. At the time that Petitioners engaged in check-cashing transactions, for some transactions they wrote checks dated with the date of the check-cashing transaction and for some transactions, Petitioners wrote checks dated with later dates. At the time that Petitioners engaged in check-cashing transactions, Petitioners' writing of the checks for a date later than the date of the transaction neither encouraged nor discouraged Petitioners' entering into the check-cashing transactions. Petitioners did not know of the existence of the postdated check rule, Rule 3C-560.803, Florida Administrative Code, at the time they engaged in the aforementioned check cashing transactions. In the Joint Prehearing Statement, Petitioners provided the following statement of their position in this proceeding. "The Petitioners contend that Rule 3C-560.803, Florida Administrative Code, is invalid under the standards set forth in Southwest Florida Water Management District v. Save the Manatee, Inc., 773 So. 2d 594 (Fla. 1st DCA 2000), but if held to be valid the Rule merely allows a registered check casher to accept a postdated check and does not permit a deferred presentment transaction, also called a "payday loan." The Department has no rule, order, or declaratory statement authorizing deferred deposit transactions or repeated, consecutive deferred deposit transactions by a registered check casher. In 1994, the Legislative enacted Chapter 560, Florida Statutes, the Money Transmitters’ Code. After the enactment, the Department received a written inquiry from Larry Lang, president of the Florida Check Cashers Association, Inc., concerning whether check cashers were permitted to defer, for an agreed-upon period, the deposit of checks they had cashed. This type of transaction was referred to as a "deferred deposit" transaction. Mr. Lang's letter, which was received by the Department on or about February 23, 1995, stated in relevant part: It is the position of the FCCA [Florida Check Cashers Association] that member stores may cash checks for customers and defer the deposit of those checks for a reasonable period of time, mutually agreed upon between the store and the customer, provided that the fee charged for cashing these checks shall not exceed the statutory fee allowable for the specific type of check cashed. This service shall be referred to as "Deferred Deposit." In response to Mr. Lang's letter and other inquiries regarding the Department's position on what was allowable under Chapter 560, Florida Statutes, the Department examined the relevant statutes. An assistant general counsel with the Department, Jeffrey D. Jones, determined that nothing in the governing statutory provisions prohibited deferred deposit transactions, so long as the check casher did not charge a fee in excess of the amount prescribed by statute. Assistant General Counsel Jeffrey D. Jones summarized his analysis and conclusion in a February 24, 1995, letter to Mr. Lang which stated in part: Since Chapter 560, Florida Statutes, does not explicitly prohibit the concept of deferred deposits and since all other provisions of Chapter 560, Florida Statutes, would be adhered to, I see no reason to object to your offering of the above described services. Again, this analysis is based upon the fact that the deferred deposit service will be offered and managed pursuant to the provisions of Chapter 560, Florida Statutes, and specifically within the fee caps contained within Section 560.309(4), Florida Statutes. Although the term "postdated check" was not used in either Mr. Lang's letter to the Department or in Mr. Jones' response thereto, the "deferred deposit" transaction described in both letters contemplated and encompassed the use of a postdated check. Moreover, the Department understood that deferred presentment or deferred deposit transactions could involve postdated checks as well as other negotiable instruments. William Douglas Johnson was the assistant director of the Department from 1994 through 1999. As assistant director, Mr. Johnson had supervisory responsibility over the Department's regulation of money transmitters. Moreover, with regard to the Money Transmitters' Code, Mr. Johnson participated in policy- making decisions, interpreted state statutes and administrative rules, and was involved in the promulgation of administrative rules. After reviewing Assistant General Counsel Jones' February 24, 1995, letter, Mr. Johnson believed that the legal opinion expressed in that letter needed to be adopted as a rule. Mr. Johnson believed a rule would provide clarification both to the check cashing industry and consumers as to whether "deferred deposit" or "deferred presentment" transactions were allowed under the provisions of Chapter 560, Florida Statutes. Another factor considered by the Department when it was contemplating adopting a postdated check rule was that the check casher would be prevented from filing criminal charges or even threatening criminal charges against a customer whose postdated check was returned for insufficient funds. The Department's position was based on its knowledge that controlling judicial interpretations of Florida's criminal statutes imposing penalties for passing bad checks prevented criminal prosecution of a person who tendered a postdated check that was later returned for insufficient funds. Prior to the Department's making a final decision on whether to promulgate a postdated check rule, in February 1997, Mr. Johnson asked Robert Alan Fox, an assistant general counsel employed by the Department, for a legal opinion on the status of postdated checks under Florida law. Mr. Fox's opinion concluded that postdated checks were extensions of credit. With regard to postdated checks, it was Mr. Fox's opinion that a rule allowing check cashers to accept a postdated check was not necessary because Chapter 560, Florida Statutes, already authorized check cashers to do so. Notwithstanding Mr. Fox's opinion that no postdated check rule was required, both assistant general counsels, Mr. Fox and Mr. Jones, agreed that nothing in Chapter 560, Florida Statutes, required the check casher to deposit the customer's check or prohibited the check casher from holding the customer's check. The Department has consistently followed the legal opinion expressed in the February 24, 1995, letter, discussed above in paragraph 26, that a "deferred deposit" transaction is not prohibited by Chapter 560, Florida Statutes, provided that the fees charged do not exceed the caps set in Section 560.309(4), Florida Statutes. Inasmuch as this was its policy, the Department believed it was necessary and appropriate to promulgate the policy as a rule. Subsection 560.105(3), Florida Statutes, authorizes the Department to adopt rules pursuant to Subsection 120.536(1), Florida Statutes, and Section 120.54, Florida Statutes, to implement the provisions of Chapter 560, Florida Statutes. Consistent with the provisions of Section 120.54, Florida Statutes, the Department filed Rule 3C-560.803, Florida Administrative Code, for adoption with the Department of State. The Department followed all applicable rulemaking procedures and the rule took effect on September 24, 1997. Rule 3C-560.803, Florida Administrative Code, states the following: A check casher may accept a postdated check, subject to the fees established in Section 560.309(4), F.S. At the time the rule was promulgated, the specific authority cited for the rule was Section 560.105(3), Florida Statutes, and the law implemented cited for the rule was Section 655.86, Florida Statutes. Section 655.86, Florida Statutes, addresses the issuance of postdated checks and imposes on the person drawing a postdated check, the duty to notify, in writing, the separate office or branch of the financial institution upon which the postdated check is drawn. According to that provision, if the drawer of the check fails to provide the statutorily prescribed notice, the financial institution is absolved from liability if it cashes the postdated check before the date the drawer of the check specified. By implication, Section 655.86, Florida Statutes, recognizes that a postdated check is a type of negotiable instrument under Florida law. At some point after the Petition was filed and prior to the hearing, the Department decided to correct and/or modify the law implemented section of Rule 3C-560.803, Florida Administrative Code, by adding the appropriate statutory cites. By letter dated May 24, 2001, the Department, through its General Counsel, requested that the Department of State, Bureau of Administrative Code, add citations to Subsections 560.103(3) and (14) and 560.302(1), Florida Statutes, to the law implemented section of Rule 3C-560.803. Section 120.74, Florida Statutes, both requires and permits agencies to correct technical defects in adopted rules. Petitioners have not claimed any injury or harm by the aforementioned technical modification to the rule.
The Issue Whether the Defendants, Leon Zwick and Elias Zwick together with a broker, Roberto E. Mitrani, received $10,000 earnest money deposit for a sale of Lot 12, Block 120, Lenox Manor Subdivision, Plat Book 7, page 15, Dade County, Florida, and thereafter released $9,000 of said deposit to the seller, retaining $1,000 for personal use in violation of Chapter 475, Florida Statutes; whether said money was disbursed without proper authority; whether the co-broker, Robert E. Mitrani, was not notified of the return of $9,000 deposit money or the retention of $1,000 of the deposit money. Whether Defendants failed to maintain in an escrow account all moneys prior to the culmination of the subject transaction. Whether the licenses of one or both of the Defendants should be revoked.
Findings Of Fact The Defendant, Leon Zwick, and the Defendant, Elias Zwick, are registered real estate broker and real estate salesman, respectively. The Defendants in cooperation with a broker, Roberto E. Mitrani, negotiated a contract dated September 1, 1972, as broker and salesman, respectively, for the sale of Lot 12, Block 120, Lenox Manor Subdivision, Plat Book 7, page 15, as recorded in the public records of Dade County, Florida, known as Jeffrey Apartments to Marco T. Gonzalez or assigns, as the purchaser, by E. M. Bornfriend, Sara Bornfriend and Pauline Bornfriend, as sellers. The Defendants received total earnest money deposit in the amount of $10,000, but the contract time expired and the sale was not consummated. On or about October 18, 1972, the Defendant, Leon Zwick, did pay over and release $9,000 of the $10,000 earnest money deposit to Mariana De Gonzalez, as attorney in fact for Marco T. Gonzalez, and both Leon Zwick and Elias Zwick executed a mutual release for the entire $10,000 earnest money deposit. The release stated and the Defendants admitted that $1,000 was retained by the Defendants for their personal use, said release being executed without the knowledge or consent of the sellers. Mariana De Gonzalez, was represented by an attorney, Melvin J. Richard, and the sellers were represented by an attorney, Howard N. Galbut. A letter dated October 12, 1972, complaining of the transaction with the Defendants, written by Melvin J. Richard to the Florida Real Estate Commission, was delivered to the Real Estate Commission but had not been answered and a letter of October 19, 1972 was then written in which it was stated that the matter had been settled and the complaint was withdrawn. The Plaintiffs filed an Information against the Defendants on April 25, 1975. The Hearing Officer further finds; That the Defendant broker Zwick and the Defendant salesman Zwick violated the terms of the subject contract by failing to return the money on deposit at the expiration of the time designated in the contract; That the retained $1,000 was used to pay the attorney for the Defendants, Martin Limlich, upon whose advice they relied when they retained $1,000 of the $10,000 deposit they should have returned forthwith in full to the purchasers; That the Defendants are guilty of failure to maintain a proper escrow account by not keeping the $10,000 deposit in escrow as required by Chapter 475, Florida Statutes; That the testimony of the co-broker, Roberto E. Mitrani, is inconclusive; and That Defendant Leon Zwick has previously been found guilty by the Florida Real Estate Commission of conduct warranting revocation.
Findings Of Fact Based upon the documentary evidence and the testimony taken at the hearing, the following relevant facts are found: At all times material hereto, Respondents were licensed by the Florida Real Estate Commission and subject to the jurisdiction of the Department of Professional Regulation. Their license numbers are 0151878 and 0195386, respectively. By previous order of the Board, the license of Respondent Gerald Rosen has been revoked. At all times material herein, Riken Realty, Inc., was a licensed corporate broker and doing business at 1742 N.E. 163rd Street, North Miami Beach, Florida 33162. Respondent Mishkin was a salesman associated with Riken Realty, Inc., and was the principal owner of said corporation. At all times material herein, Riken Realty, Inc., had Its escrow account at the Intercontinental Bank, North Miami branch, bearing escrow account number 401-001039. Respondent Mishkin was an authorized signatory on this account. On or about February 28, 1980, Victor Rosenbloom of Clifton, New Jersey, entered into an oral sublease agreement for the period commencing March 1, 1980 through April of 1980 for premises known as Apartment C 307, Summerwinds Apartment Complex, 494 N.W. 165th Street, North Miami Beach, Florida, at $900 a month. The total rent of $1,800 was paid by Rosenbloom by Traveler's Checks on February 28, 1980 to Riken Realty, Inc. Further, Rosenbloom gave to Riken Realty on March 1, 1980 his Traveler's Checks in the amount of $900 as security damage deposit on said apartment. The lease was negotiated by an associate of Riken Realty, Inc., which had a rental listing on said premises. At all times material herein, Respondent Mishkin was lessee of said premises, subletting to Rosenbloom. Rosenbloom vacated said premises on April 29, 1980, on which day Respondent Mishkin inspected the premises and found no damages; as a result, no deductions were to be made on said $900 security damage deposit. Rosenbloom requested Mishkin to refund said deposit in full, Respondent Mishkin agreed to said refund and to this effect issued his written statement that a refund would be made by May 15, 1980. On or about June 14, 1980, Respondent Mishkin issued a refund check to Rosenbloom in the amount of $811.00 on the escrow account of Riken Realty, Inc., bearing check number 1765 and dated June 14, 1980, to the order of Vic Rosenbloom. The stated check was not honored upon presentation for the reason that the account had been closed on June 17, 1980. Further, when Respondent Mishkin issued said check the escrow balance was seventy-six cents, which balance occurred on or about May 21, 1980 and continued until the account was closed on June 17, 1980. The stated check for $811.00 was, in fact, insufficient refund since the refund should have been for the full amount of the deposit, specifically, $900. Rosenbloom individually and by and through his attorney, made repeated demands both orally and in writing for a full refund of the deposit. Respondent eventually repaid Rosenbloom $811.00 but failed to pay the service charge incurred by the previously transmitted dishonored check and failed to render an accounting for the deductions made from the $900 security deposit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, It is RECOMMENDED: That Riken Realty, Inc. and Steve Mishkin be found guilty of violating Section 475.25(1)(b) and (d), Florida Statutes, and their licenses be suspended for a period of six (6) months. Since Respondent Gerald Rosen's license has already been revoked, the charges against him should be dismissed. DONE and ORDERED this 7th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 7th day of October, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Bldg. 2715 East Oakland Park Blvd. Ft. Lauderdale, Florida 33306 Brian Hal Leslie, Esquire 1795 North East 164th Street North Miami Beach, Florida 33160 Riken Realty, Inc. 1742 North East 163rd Street North Miami Beach, Florida 33162 Carlos 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 Street Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the posthearing memorandum and the entire record compiled herein, I hereby make the following relevant findings of fact: Respondent, Alfred Rifflard, Jr., during times material herein, was a licensed real estate broker-salesman and is the holder of license number 0338064. Respondent, Thomas L. Narog, during times material herein, was a licensed real estate salesman and is the holder of license number 0309097. On approximately May 24, 1982, Respondent Narog represented to John F. Wodalski that Respondent Rifflard, as an investor, was interested in purchasing certain real property owned by Wodalski. Based on discussions with seller Wodalski, Wodalski and Respondent Alfred Rifflard entered into a deposit receipt and contract for sale and purchase of the Wodalski property. The purchaser is listed on the deposit receipt contract as Alfred Rifflard and/or assigns." (Petitioner's Exhibit 3) The negotiations for the sale of the subject property were conducted at the bar of a country club where both Respondent Naroq and seller Wodalski were employed. Respondent Rifflard was aware that the subject property had been on the market for approximately eighteen months. Seller Wodalski expressed (to Respondent Narog) disenchantment that he was unable to move the property as he had planned to purchase other properties with the proceeds received from the sale of the subject property. Respondent Narog attempted to sell the Wodalski property to enable him (Wodalski) to purchase the other property. During the negotiations for the sale of the subject property, Respondent Wodalski tendered a copy of his business card to seller Wodalski. That business card reflected that Respondent Rifflard was a licensed real estate salesman. Following the execution of the deposit receipt contract by Respondent Rifflard, Respondent Rifflard showed the property to approximately three prospective purchasers in an effort to sell the property prior to the purported closing date. Federal Land Title Corporation of Ft. Lauderdale, Florida was commissioned to handle the closing of the property from seller Wodalski to Respondent Rifflard and/or his assigns. This is confirmed by a letter dated August 19, 1982 to seller Wodalski wherein loan processor Kathy Bradley advised the seller that she expected to expedite the closing of the Wodalski property. (Petitioner's Exhibit 4) Upon receiving the above-referred letter from Federal Land Title Corporation, seller Wodalski demanded a tender of the $1,000 earnest money deposit which is referred to in the deposit receipt contract executed by Respondent Rifflard. At that time, Respondent Narog was told that no monies could be disbursed to him prior to closing. Seller Wodalski called off the closing based on his claim that another broker advised him that it was illegal for an undisclosed licensed real estate salesman to purchase property in his name. Based on the testimony of Respondents Rifflard and Narog including the testimony of the Petitioner's investigator, Anthony Nicola, who investigated the subject complaint, it is specifically found herein that the Respondents disclosed the fact that Rifflard was a licensed real estate salesman at the time the deposit receipt contract was executed herein. In making this finding, consideration was given to seller Wodalski's testimony to the effect that he was busy 2/ at the time that he entered the deposit receipt contract and that it was indeed possible that Respondent Rifflard tendered a business card to him at the time he entered the subject contract. Paragraph two of the deposit receipt contract reveals that the method of payment includes a $1,000 deposit, in the form of a note, which would be returned to the buyer at closing. It is undisputed by the Respondents that no earnest money deposit note in the amount of $1,000 was given the buyer's attorney to be held in trust until the closing was completed. The Respondents acknowledged that it was an error on their part to fail to execute the earnest money deposit as Respondent Rifflard agreed in the subject deposit receipt contract. Further, Respondent Rifflard urges that his failure to execute a note was an oversight on his part.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondents, Alfred Rifflard, Jr. and Thomas L. Narog, be privately reprimanded by the Petitioner, Division of Real Estate, based on their failure to place in deposit, to be held in trust, a $1,000 earnest money deposit in connection with the transaction surrounding the deposit receipt and contract for sale and purchase entered into by Alfred Rifflard, Jr., as purchaser of certain real property owned by John Wodalski. RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1984.
The Issue Is Respondent, Victoria D. Wiedle, guilty of failure to account for and deliver funds, in violation of Section 475.25(1)(d)1, Florida Statutes, and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. At all times material hereto, Respondent Wiedle was a licensed real estate broker, having been issued license number BK-0646846, and was principal broker of Escarosa Realty. Respondent's license is still active. Janice Marlene Christian is a realtor associate. She was an independent contractor with Escarosa Realty from December 1998 until April 1999. Accordingly, Respondent Wiedle was Ms. Christian's registered broker during this time. Ms. Beverly Lewis is the mother-in-law of Ms. Christian's brother. Ms. Lewis came to Ms. Christian in February 1999 because she was interested in looking for and purchasing a house. On February 16, 1999, Ms. Christian facilitated an Exclusive Buyer Brokerage Agreement (the Agreement) on behalf of Escarosa Realty with Ms. Lewis. The Agreement was on a form created by Formulator, a software company. "Florida Association of Realtors" appears on the face of the document. Paragraph 6 of the Agreement reads in pertinent part: RETAINER: Upon final execution of this agreement, Buyer will pay to Broker a non- refundable retainer fee of $0 for Broker's services ("Retainer"). Accordingly, Respondent was not entitled to any money as a retainer fee for broker services pursuant to this agreement. The agreement was signed by Ms. Lewis, Ms. Christian, and Ms. Wiedle and became effective on February 16, 1999. The specified termination date of the agreement was August 17, 1999. On or about February 27, 1999, Ms. Christian tendered an offer to sellers on behalf of Ms. Lewis, for property located at 107 Poi Avenue in Santa Rosa County (subject property). Pursuant to this offer, Ms. Lewis gave a $500.00 check dated February 27, 1999, to Ms. Christian as earnest money. The check is made out as follows: "Escarosa Realty Inc. Escrow". Ms. Lewis wrote in the memo section of the check that the check was escrow money for 107 Poi Terrace. The $500.00 check was deposited in Escarosa Realty's escrow account on March 1, 1999. Respondent accounted for the $500.00 check on the March 1999 monthly reconciliation statement for Escarosa Realty. The seller of the subject property made a counter- offer for a higher price which Ms. Lewis rejected. The testimony differs as to what happened next. According to Ms. Christian, Ms. Christian spoke to Respondent sometime after Ms. Lewis rejected the counter-offer about refunding the escrow money to Ms. Lewis. According to Ms. Christian, Respondent informed her that she did not have to give the escrow money back to Ms. Lewis yet because she had the buyer broker agreement. Ms. Christian further asserts that she filled out a written request on March 16, 1999, on a form entitled "EMD Request," which means earnest money deposit request, and gave it to Respondent who again asserted that the $500.00 did not need to be returned at that time because of the buyer brokerage agreement. Ms. Christian's testimony is consistent with Ms. Lewis's. According to Ms. Lewis, she talked to Ms. Christian about getting a refund of the $500.00 shortly after she rejected the counter-offer. She and Ms. Christian discussed the EMD form. She initially agreed that Respondent could temporarily maintain the escrow funds. However, when Ms. Lewis discovered that the financing she was seeking through the rural development program would take several months, she decided she wanted the money returned. Ms. Christian ended her contract with Escarosa Realty effective April 14, 1999. Because Ms. Christian was no longer at Escarosa, Ms. Lewis contacted Respondent by telephone on or about April 21, 1999. Ms. Lewis informed Respondent about the purchase offer and rejection of the counter-offer for the subject property. According to Ms. Lewis, Respondent initially told her she would return the money to her in the mail. When she did not receive it, Ms. Lewis again called Respondent and was told that the $500.00 would not be returned because of the buyer brokerage agreement was still in place. Ms. Lewis asserts that Respondent never told her any request for a refund of the $500.00 had to be in writing. Ms. Lewis then went to the Escarosa Realty office. Ms. Weidle was not there but Elnora Alexander was there. Ms. Alexander was also a realtor associate who was an independent contractor with Escarosa Realty. Ms. Lewis explained to Ms. Alexander about the circumstances of the subject property and that she wanted her earnest money back. Ms. Alexander gave a copy of the buyer broker agreement to Ms. Lewis. After going to Escarosa Realty, Ms. Lewis had numerous other telephone conversations with Respondent about the money. Respondent denies any knowledge of the Poi Terrace failed transaction until she spoke to Ms. Lewis on the phone. She also denied ever receiving the EMD request from Ms. Christian. Respondent asserts that she repeatedly told Ms. Lewis that she would return the $500.00 if Ms. Lewis would only make a request in writing, but that Ms. Lewis refused. This assertion is not credible. It is inconceivable that after all of the efforts made by Ms. Lewis to get her $500.00 returned to her, that she would refuse to make a written request for the money. In any event, there is no dispute that Ms. Lewis made verbal requests to Respondent for the return of the escrow monies. Respondent Wiedle admits that Ms. Lewis requested the money over the telephone. Further, in an April 2, 2001 letter from Respondent to the Division of Real Estate, Respondent acknowledged that Ms. Lewis asked for a refund of the money in the beginning of May and again in early June of 1999. Clearly, if Respondent Wiedle had not previously been aware of the failed Poi Terrace transaction, she was made aware of it during the telephone conversations with Ms. Lewis. Notwithstanding Respondent's assertion that the reason she did not refund the $500.00 to Ms. Lewis was that the request was not in writing, it is clear from Respondent's testimony and from a letter she wrote to Mr. Clanton, Petitioner's investigator, that she believed the $500.00 was connected to the buyer brokerage agreement, not to any offer for purchase of property. In an undated letter from Respondent Wiedle to Mr. Clanton, Respondent wrote: Dear Mr. Clanton, This is in response to your letter dated August 17th, 1999. First Beverly A. Lewis was refunded her money on August 20, 1999 check #111. Second I would like to respond to her complaint. Beverly A. Lewis signed a Exclusive Buyer Brokerage Agreement with EscaRosa Realty, Inc. on February 16th, 1999 with it to terminate on August 17th 1999. Beverly A. Lewis knew that her deposit was a refundable deposit after the agreement is expired not before. As the Broker of this company I had no contact with Beverly Lewis until the agent Marlene Christian was asked to leave the company. If there ever was a contract for her to purchase a house then her agent Marlene Christian never informed me of nor did she ever provide any such contract. The deposit was given to me with the Exclusive Buyer Brokerage Agreement only. Nor did her agent Marlene ever fill out the EMD refund request form requesting a refund to be given to Beverly A. Lewis. However, The result would have been the same. I asked Beverly Lewis If she had changed her mind on purchasing a house she said no she was still going to buy a house but that she knew if she didn't buy her house through Marlene at her new company that Marlene would make life very hard on her. I told her I was sorry but that is the whole purpose in the contract was to secure your buyers from just going all over the place. . . .(emphasis supplied) Respondent refunded the $500.00 to Ms. Lewis on August 10, 1999. At hearing, Respondent volunteered that there was a previous complaint against her for failing to return money she held under a buyer brokerage agreement with a former client. In that instance, the Probable Cause Panel of the Florida Real Estate Commission found no probable cause but issued a letter of guidance to Respondent.1
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, the evidence of record and the demeanor of the witnesses, it is RECOMMENDED: That a final order be entered by the Florida Real Estate Commission finding the Respondent, Victoria D. Wiedle, guilty of violating Section 475.25(1)(d), Florida Statutes, in that she failed to deliver escrow money upon demand, imposing a fine of $1,000.00, and placing Respondent Wiedle on probation for a period of two years. As conditions of probation, Respondent should be required to attend a continuing education course which addresses appropriate handling of escrow funds and be subject to periodic inspections and interviews by a Department of Business and Professional Regulation investigator. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 14th day of June, 2002.
The Issue The issues posed for decision herein are whether or not the Respondent, Loretta Woloszyk, failed to account for or deliver a security deposit received by her, in violation of Section 475.25(1)(c), Florida Statutes, and whether or not Respondent derivatively violated Subsection 475.25(1)(a), Florida Statutes, in that she is guilty of a breach of trust in a business transaction and, therefore, violated Subsection 475.25(1)(a), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. Loretta Woloszyk, Respondent herein, is presently registered with the Board of Real Estate as a broker/salesperson. On or about April 15, 1977, Respondent Woloszyk entered into a deposit receipt contract executed with John F. and Jeannine M. Chrest as purchasers of a house owned by Respondent Woloszyk located at 210 North G Street, Lake Worth, Florida. Pursuant to the terms of said deposit receipt contract, John E. Knowles signed as broker for receipt of a $300 cash deposit from the Chrests as purchasers. On or about April 22, 1977, the $300 deposit was placed in the escrow account of Sunshine Estates, Inc., the corporate broker by which the Respondent was employed. The deposit receipt contract was contingent upon the buyer qualifying for a Veterans Administration (VA) mortgage loan in the amount of $26,900. The relevant portion of the contract provided as follows: VA Appraisal: It is expressly agreed that, notwithstanding any other provisions of this contract, the purchaser shall not incur any penalty by forfeiture of earnest money or otherwise be obligated to complete the purchase of the property described herein, if the contract price or cost exceeds the reasonable value of the property established by the Veterans Administration. The purchaser shall, however, have the privilege and option of proceeding with the consummation of this contract without regard to the amount of the reasonable value established by the Veterans Administration. By letter dated May 25, 1977, the Chrests were notified that the subject property was appraised at $18,750, and thus was not acceptable under the minimum property appraisal standards of the Veterans Administration. With this notification, John Chrest went to the offices of Sunshine Estates, Inc., and demanded a return of his $300 earnest money deposit. John E. Knowles, as broker in receipt of the Chrests' $300 deposit, returned the $300 deposit check to Respondent Woloszyk, who deducted $200 from the Chrests' $300 deposit based on a separate rental transaction with the Chrests on the same subject property. During the hearing, John Chrest testified that he contacted Respondent for purchase of her residence situated in Lake Worth Farms. Mr. Chrest agreed during cross-examination that he initially contacted Respondent to "buy or rent Respondent's residence". He also testified that upon receipt of the VA appraisal at an amount below the agreed upon purchase price of $26,900, he agreed to pay to Respondent rent in the amount of $150 plus a $50 security deposit, which amount was deducted from the Chrests' security deposit. The FHA-VA deposit receipt contract contains a special condition entered by and between the parties (Woloszyk and the Chrests) indicating that "Buyer will pay rental of $225 per month until closing, beginning on or before May 1, 1977. Buyer will honor rental agreement for Kenneth Johnson, tenant, from April 1, 1977, to March 31, 1978, or $80 per month rent." Based thereon, and on John F. Chrest' s admission that be agreed to the rental fee which was deducted from his deposit received by Respondent Woloszyk, the administrative charges alleged are without basis. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMEND: That the Administrative Complaint filed herein be DISMISSED in its entirety. RECOMMEND this 6th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1979 COPIES FURNISHED: John Namey, Esquire Department of Professional Regulation Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Ms. Loretta Woloszyk 733 Husiingbird Way, Apt. #3 North Palm Beach, Florida 33408
The Issue The issue is whether Respondents' real estate licenses should be disciplined on the ground that Respondents allegedly violated a rule and various provisions within Chapter 475, Florida Statutes, as charged in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondents, Edward D. Armbruster and Colleen Michele Armbruster, were licensed real estate brokers having been issued license numbers 0002159 and 0362890, respectively, by Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). Respondents served as qualifying brokers and officers of Respondent, Armbruster Realty, Inc., a corporation registered as a real estate broker and located at 1031 West Nelson Avenue, DeFuniak Springs, Florida. The corporation holds license number 0211855, also issued by the Division. On July 10, 1996, Gerald and Joyce Singleton, who had just relocated to California, entered into a contract with James B. and Joyce Patten to sell their single-family residence located on Madison Street in the City of Freeport, Florida, for a price of $78,000.00. The contract called for the Pattens to pay $1,000.00 as an earnest money deposit, to be held in escrow by Respondents. The contract further provided that "[c]losing shall be within 30 days (more or less) after acceptance of this contract," and that "[i]n the event that buyer defaults and deposit is forfeited, it is agreed said deposit shall be divided equally between seller and broker." The transaction was handled by Geraldine Dillon (Dillon), a salesperson in Respondents' office, who is now retired. Because the Pattens had recently moved to Walton County from Washington State, and they were temporarily living with a relative in a mobile home, the time for closing was of the essence. Accordingly, the Pattens inserted into the contract a provision requiring that a closing be held within "30 days (more or less)." This meant that a closing should be held on or about August 10, 1996, give or take a few days. The parties acknowledge that property boundary problems were somewhat common in certain areas of Freeport, including the area where the subject property was located. To satisfy the bank and title company, a surveyor was engaged to prepare a survey of the property. However, the parties agree that the surveyor noted problems with the boundaries of the lot. When a second surveyor would not undertake the survey because of similar boundary problems, Joyce Patten, who was the principal negotiator for the couple, notified Dillon that they did not wish to close because of potential title problems and wanted a refund of their deposit. Notwithstanding this concern, Dillon advised Joyce Patten that a third surveyor would be hired, at the seller's expense, and he could "certify" the property. Although Joyce Patten expressed concern that the bank might not accept a third survey after two earlier ones had failed, and she did not want to pay for another survey, she did not instruct Dillon to stop the process. Accordingly, Dillon engaged the services of Tommy Jenkins, a local surveyor, to perform another survey. After a certified survey was obtained by Jenkins on August 12, 1996, which Respondents represent without contradiction satisfied the lender and title company, a closing was scheduled within the next few days. This closing date generally conformed to the requirement that a closing be held by August 10, 1996, "more or less." The seller, who by now had relocated to California, flew to Florida for the closing, and the title company prepared a closing statement and package. Just before the closing, however, Respondents learned through a representative of the title company that the Pattens were "cancelling the closing," apparently in violation of the contract. Shortly after the aborted closing, Joyce Patten requested that Dillon return their deposit. By this time, the Pattens had already entered into a second contract to buy another home in the same area and closed on that property before the end of August. Respondents were never informed of this fact by the Pattens. On August 21, 1996, Colleen Armbruster prepared a rather lengthy letter to the Pattens (with a copy to the sellers) in which she acknowledged that they had orally requested from Dillon that their escrow deposit be returned. The letter has been received in evidence as Petitioner's Exhibit 4. Armbruster stated that she was "perplexed" that they were demanding a refund of their earnest money deposit, given the fact that the seller had "met the terms and conditions of the sale." Armbruster outlined the three reasons in the contract which would allow the Pattens to withdraw without forfeiting their deposit, but noted that none were applicable here. Accordingly, she advised them that the seller would be consulted as to his wishes regarding the deposit, and that the Pattens should contact her if they had any questions. Through oversight, however, she did not include a notice to the Pattens that they must respond to her letter within a stated period of time reaffirming their demand for the trust funds, or the deposit thereafter would be disbursed pursuant to the contract. By failing to include this specific language, and sending the letter by regular rather than certified mail, return receipt requested, Respondents committed a technical, albeit minor, violation of an agency rule. Even so, the Pattens acknowledged receiving the letter, and there is no reason to believe that they did not understand its import, especially the requirement that they contact the broker if they disagreed with the proposed disbursement of the money. It can be reasonably inferred that the Pattens did not respond because they "figured [they weren't] going to be able to get [their] money back" due to their failure to perform. On September 13, 1996, the seller's attorney advised the Pattens by letter that the seller considered the deposit forfeited pursuant to paragraph 15(a) of the contract, which pertains to the "Default" provisions. The Pattens never responded to either letter, and they also failed to respond to telephone calls made by Respondents or their agents regarding this matter. In view of the Pattens' lack of response or reaffirmance of their demand, and the fact that they had already closed on another property, Respondents logically and fairly assumed that the Pattens were in agreement with the disbursement procedures outlined in Coleen Armbruster's letter of August 21. Accordingly, on September 17, 1996, Edward Armbruster, who had not been involved in this transaction to date, in good faith signed two disbursement checks giving $697.50 to the seller and retaining the balance for his firm. This division was consistent with the terms of the contract. In making this disbursement, there was no intent on the part of Respondents to trick, deceive, breach their trust, or in any way unlawfully deprive the Pattens of their deposit. Respondents did not notify the Florida Real Estate Commission (Commission) that they had received conflicting demands for a deposit, nor institute any other procedures regarding the deposit, since they no longer had any good faith doubt as to whom was entitled to their trust funds. This was because the Pattens had failed to respond to letters and telephone calls regarding the sellers' claim to the deposit. There is no evidence that Respondents have ever been the subject of prior disciplinary action during their lengthy tenure as licensees. At the same time, it is noted that Respondents acted in good faith throughout the process and genuinely believed that there was no dispute. It should also be recognized that, for at least part of the time, the Pattens were working two contracts simultaneously without advising the realtors.
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 finding Respondents guilty of a technical violation of Rule 61J2-10.032(1), Florida Administrative Code, and Section 475.25(1)(e), Florida Statutes, and that they be given a reprimand. All other charges should be dismissed. DONE AND ENTERED this 28th day of July, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1998. COPIES FURNISHED: Henry M. Solares, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Christine M. Ryall, Esquire 400 West Robinson Street Suite N-308 Orlando, Florida 32801-1772 Edward D. Armbruster Colleen M. Armbruster Post Office Box 635 DeFuniak Springs, Florida 32433 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Respondent, Milton I. Markowitz, was a licensed real estate broker doing business in the State of Florida. Respondent acted as the individual broker for Ford Realty, Inc. At some time, apparently in 1979, Respondent and Jack Arias discussed the possibility of forming a corporation to be known as Miltjack Investments, Inc., for the purpose of acquiring a piece of property (the property) in Pompano Beach, Florida, owned by Richard F. Brohamer. By Deposit Receipt dated December 10, 1979, an offer to purchase the property was submitted by Miltjack Investments, Inc. to the seller through Cronan Realty, another real estate broker. Respondent signed the Deposit Receipt as president of Miltjack Investments, Inc. The Deposit Receipt, by its terms, indicated that the sum of $10,000 had been placed in escrow with Ford Realty, Inc. as a deposit on the purchase price of $567,000. In fact, Respondent knew when he signed the Deposit Receipt and forwarded it to the seller that Miltjack Investments, Inc. was a non-existent corporation. In addition, Respondent also knew that he had been given a $10,000 check by Jack Arias, his coinvestor, with the knowledge that the check could not be covered by sufficient funds, and that it would not be placed in escrow by Ford Realty, Inc. At no time during the negotiations involved in this proceeding did Respondent ever communicate to the seller, or Cronan Realty, that the $10,000 deposit was not being held in escrow or that Miltjack Investments, Inc. was not an existing corporation. After the aforementioned Deposit Receipt was forwarded to the seller, the seller made a counter offer by Deposit Receipt Contract dated January 11, 1980. This instrument contained several changes, but was, in fact, at some point signed on behalf of Miltjack Investments, Inc. by Jack Arias, as secretary-treasurer, and Mr. Arias' signature was witnessed by Respondent. Like the initial Deposit Receipt, this latter agreement also recited that the $10,000 deposit was in escrow with Ford Realty, Inc. Unlike the initial agreement, however, the agreement of January 11, 1980, indicated that Cronan Realty, Inc. was to act as escrow agent. Pursuant to this agreement, Cronan Realty, Inc. made demand upon Ford Realty, Inc. for the $10,000 deposit, so that it could fulfill its obligation under the last mentioned agreement. Upon receipt of this demand, Jack Arias made demand upon Respondent to return the $10,000 check to him, which Respondent did, and apparently Mr. Arias destroyed the check some time thereafter. For reasons not clear from the record in this cause, the transaction involving the sale of the property never closed.
