Findings Of Fact The Respondent licensee, Martin County Properties, Inc., was at all times material registered with the Commission as a real estate corporate broker and the Respondent licensee, Jackson L. Smith, was at all times material registered with the Commission as a real estate broker. On May 8, 1974, the G. H. I. Inc., as purchaser, offered to purchase property described as: "132 plus or minus lots, Parcel #1, and 154 plus or minus acres, Parcel #2, in the County of Okeechobee" for a purchases price of $567,600.00 from Nachman Tevlo, et al., seller. Accompanied with this officer, the corporation submitted a $10,000.00 security deposit to be held in trust by the Respondent, Martin County Properties, Inc. In count one of the complaint, it is alleged that the Respondents failed to place that deposit in a trust or escrow account and that on December 31, 1974, Respondent Smith issued a check to the buyer for $7,700.00, which was drawn from its escrow account and that said check was returned for insufficient funds. The complaint alleges that at the time of issuing this check, the Respondent Smith overdrew the firm's escrow account by $402.80 and that by reason thereof, Respondents are guilty of failing to immediately place upon receipt the monies received from persons they dealt with as brokers in an escrow account in violation of Section 475.25(1)(i), Florida Statutes. Robert F. Cochran, Secretary-Treasurer of G.H.I., Inc., the corporate purchaser, acknowledged tendering the deposit in connection with the above referenced transaction. The proposed offer was conditioned on acceptance by two undisclosed partners of which the corporate purchaser had no knowledge of and Respondent Smith was advised to retain the deposit check until such time as the two undisclosed partners accepted the terms of the contract. Respondent Smith was unable to obtain such approval from the undisclosed partners and when the transaction fell through, Respondent returned the original deposit check within one week of the time that he advised the purchasers that the proposed offer was not accepted. Mr. Cochran had no recollection of Respondent Smith ever tendering him a check drawn in the amount of $7,700.00 as alleged in count one of the administrative complaint. (See Commission's Exhibit #1). In count five of the administrative complaint, the Commission alleges in pertinent part that Respondent Smith issued Dwight L. Clemons a check from his trust account drawn in the amount of $4,842.95, which created a deficit in his escrow account of $1,202.20. By such act, it is alleged that the Respondent failed to maintain sufficient monies in his escrow or trust bank account, monies received and entrusted to them by persons dealing with them as brokers until disbursements are properly authorized in violation of Subsection 475.25(1)(i), F.S. Mr. Clemons acknowledged the transaction with Respondent Smith in which he received a return of an escrow deposit in the amount of $4,842.95 which was received in the form of a check which was returned by the bank for "uncollected funds." Mr. Clemons testified that he presented the check to the bank and knowing Respondent Smith, tendered the necessary funds to cover the deficiency and that Respondent Smith returned his money approximately one week later. (See Commission's Exhibit 2). In count six of the administrative complaint, it is alleged that William A. and Agnes Foster, as buyers, made an offer to purchase one half of a duplex in Jensen Beach, Florida, and to secure such offer, they made a security deposit of $1,000.00 to Respondent Smith. It is alleged that Respondent Smith failed to deposit the $1,000.00 in his escrow account and on October 10, 1974, he deposited only $500.00 in his account from this transaction. By reason thereof, it is alleged that the Respondent failed to immediately place in his escrow or trust bank account, upon receipt, monies etc. entrusted to him until disbursements thereof were properly authorized in violation of Subsection 475.25(1)(a), F.S. William Foster acknowledged the subject transaction and his tender of the $1,000.00 deposit. He testified that the seller, Miriam Fell, accepted his offer on or about November 8, 1974, and that the transaction closed without difficulty. However, an examination of Martin County Properties, Inc., trust account statement for the month ending October 1, 1974, reveals that on October 10, 1974, a $500.00 credit was entered on the subject trust account and an examination of the September 4, 1975, check drawn in the amount of $1,000.00 and issued by William A. Foster revealed that the check was deposited in Martin County Properties' trust account on October 10, 1974, the same date that the $500.00 deposit appears on the October trust account statement. Count eight alleges in pertinent part that Respondent Smith received an escrow deposit of $2,500.00 from Jansje Welm, toward the purchase of the "Gideon Property" on Indian River Drive in Jensen Beach. It is further alleged that approximately eight (8) days later, without permission of Jansje Welm, Respondent issued to Martin County Properties, Inc., a check in the sum of $1,000.00 which left a balance in his escrow account of approximately $1,597.00 and that by reason thereof, Respondent Smith is guilty of failing to maintain in an escrow or trust bank account monies received from persons dealing with him as a broker, where such funds should have been kept until properly disbursed or otherwise authorized, in violation of Subsection 475.25(1)(i), F.S. Mrs. Welm testified that she advanced Respondent Smith, a $2,500.00 deposit to secure an offer which she was led to believe consisted of a syndication of approximately six or either others who were interested in purchasing the "Gideon Properties." The transaction did not close and as of the hearing date she had not received a refund or her escrow deposit. An examination of Respondent Martin Counties, Inc., trust account for the month ending December 31, 1974, reveals that a $2,500.00 deposit was made on approximately December 12, 1974, and that for the month ending December 31, 1974, the account was overdrawn by $402.80. This of course covers the time period in which Mrs. Welm had tendered her $2,500.00 deposit toward the "Gideon Properties" and at no time during the period December 6 through December 31, did the statement reveal that Mrs. Welm's deposit was returned. It was noted that a deposit was made during the period December 23 through 27, in the amount of $5,000.00, however, this deposit apparently failed to clear based on insufficient funds. (See, Commission's Exhibit #9). It was also noted that the $2,500.00 check issued by Mrs. Welm was honored by her bank on December 16, 1974, and that during the period in which she drew her check i.e., December 9 through December 23, 1974, the firm's trust account at no time had a balance in excess of $2,297.20. (See, Commission's Exhibit #6). In count ten it is alleged that Respondent Smith also received from his salesman, Jack K. Follrath, a check in the amount of $2,500.00 to be held in escrow toward the purchase of the Gideon Properties. This check was issued by Jerry Warwin and was made payable to the firm's trust fund. It is alleged that on January 8, 1975, Respondent Smith exchanged that check for a cashier's check at the First National Bank and Trust Company which he placed in his personal account. It is further alleged that on March 18, 1975, Warwin's attorney demanded the return of the $2,500.00 which Warwin received on June 18, 1975. By this act it is alleged that the Respondents are guilty of failure to maintain in their escrow account funds entrusted to them in violation of Subsection 475.25(1)(i), F.S.; and are guilty of forming an intent, design or scheme to defraud, appropriate or otherwise convert properties entrusted to them in violation of Subsection 475.25(1)(a), F.S. Warwin testified that while he gave the Respondents no specific instructions to place the money in an escrow account, he was led to understand that the deposit would be escrowed until the sales transaction for the property closed. He testified that after making repeated demands for the return of his deposit, first by himself and ultimately through his attorney, it was returned. Jack Follrath, a salesman for Jackson County Properties, acknowledged receipt of the $2,500.00 check from Jerry Warwin and expressed his opinion that the money was not to be deposited until sufficient escrow deposits were received to effect the closing. The check representing the deposit made by Jerry Warwin was introduced and an examination thereof reveals that it was drawn on January 5, 1975, in the amount of $2,500.00 and was paid by his bank on January 8, 1975. An examination of the firm's trust account statement reveals that on January 8 a $2,500.00 deposit was in fact made, however, on January 13 the account balance was $293.20 which was the same amount remaining in the account as of January 31, 1975. And, of course, at no time during the period of January 8 through January 31, 1975, was Mr. Warwin's $2,500.00 deposit returned. In count eleven, it is alleged in pertinent part that on February 6, 1975, Respondent Smith issued check no. 259 on his trust account made payable to Commercial Trend Development, Inc., for $750.00 and marked "refund - Carter"; that on February 18, 1975, Respondent Smith deposited from the firm's operating account $457.00 in the said trust account and that on February 23, 1975, the check for $750.00 written previously cleared, leaving a total balance of $18.20 in Respondent Smith's trust account. It is alleged that based on the foregoing, Respondents failed to maintain trust funds in their escrow account until such were properly disbursed in violation of Subsection 475.25(1)(i), F.S. Roy Glancy, the real estate salesman who was involved with the Respondent in connection with the Carter transactions, testified that he intended to purchase a piece of property from the Carters which is located in the Dixie Park Subdivision of South Stuart. He acknowledged payment of the $750.00 deposit and indicated that when the transaction did not close, he received a refund of his deposit. It is alleged in count four that on July 15, 1974, Respondent Smith received a deposit of $2,200.00 to be held in trust on the purchase of property known as the "Krueger" property by C & D Contractors, which he (Smith) deposited in his escrow account; that on July 16, 1974, without the permission of C & D Contractors, issued check no. 236 from his escrow account in the amount of $900.00 payable to Martin County Properties, Inc., leaving a balance in his escrow account of $1,360.83 as of July 31, 1974, which amount represented the closing balance for the firm's escrow account for the month of July. It is further alleged that on September 6, Respondent Smith issued a check drawn on his trust account to C & D Contractors in the amount of $2,200.00 marked "deposit refund on Krueger Property" which was returned for uncollected funds. Thereafter on September 23, 1974, Respondent Smith paid C & D Contractors by cashier's check, the sum of $2,200.00 which represented the earnest money deposit placed on the Krueger property. Robert Coy, President of Coy and Deggeller Construction Co. of Stuart, Florida, testified that he made an offer to purchase the Krueger properties to Respondent Smith which offer was accompanied by an earnest money deposit of $2,200.00. Mr. Coy testified that his offer was tendered to Respondent Smith on July 16, 1974, and that when he did not receive any notification from Respondent Smith regarding whether or not his offer had been accepted, he demanded the return of the deposit which occurred during early September 1974. Commission's Exhibit #15 reveals that the $2,200.00 deposit above referred to was deposited into Respondent's trust account on the same date on which the check was drawn, i.e., July 16, 1974. (See, Commission's Exhibits #15 and #11). On that same day, a $900.00 check and/or debit was made to the account leaving a balance of $1,360.83. The firm's account statement reveals that this balance ($1,360.83) was constant throughout the period from July 17 to July 31. During the period July 17 through July 31, Mr. Coy did not receive a refund of his $2,200.00 deposit. Mrs. Betty White, the head bookkeeper of Jensen Beach Bank, the banking institution in which the Respondent Martin County Properties, Inc., maintains its trust account, testified that she provided the firm's account statements pursuant to subpoena and that the account's statements were under her custody and control, and that they were kept and maintained during the normal course of the bank's business. While the Respondent's counsel objected to the introduction of copies of the firm's trust account statements, Mrs. White creditably testified that the original of such account statements were forwarded to the firm (depositor) at the end of each month and that the bank has at its disposal, only microfilm of the originals. Based thereon, Respondent's counsel's objection to the introduction of copies was overruled.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended as follows: That the Respondents be found not guilty of the allegations contained in counts one, two, three, seven, nine and eleven of the administrative complaint and, therefore, that they be dismissed. That the Respondents be found guilty of the allegations contained in counts four, five, six, eight, ten, twelve and thirteen of the administrative complaint filed by the Petitioner. That the Respondent Smith's registration with the Florida Real Estate Commission as a real estate broker be revoked. That the Respondent Martin County Properties, Inc.'s, registration as a real estate corporate broker with the Florida Real Estate Commission be revoked. DONE AND ENTERED this 30th day of March 1977 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March 1977. COPIES FURNISHED: Frederick H. Wilsen, Esquire 2699 Lee Road Winter Park, Florida 32789 R. J. Randolph, Sr., Esquire R. Jerry Randolph, Jr., Esquire Randolph and Randolph, P.A. 201 East Osceola Street Stuart, Florida 33494
The Issue At issue in this proceeding is whether respondents committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate (Department), is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Beniuda Haddad (Haddad), is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0353300. The last license issued was as a broker, c/o Sharp Realty, Inc., 7360 Coral Way, Unit 21, Miami, Florida 33155. Respondent, Sharp Realty, Inc., is now and was at all times material hereto, a corporation registered as a real estate broker in the State of Florida, having been issued license number 0241934, at an address of 7360 Coral Way, Unit 21, Miami, Florida 33155. At all such times, Haddad was licensed and operating as a qualifying broker and officer of Sharp Realty, Inc. On June 13, 1991, the Department, through its investigator Hector Sehwerert, conducted an audit of respondents' real estate brokerage escrow account. Such audit revealed an escrow liability of $12,000, a bank balance of $9,500, and shortage of $2,500. Regarding respondents' escrow liability of $12,000, the proof demonstrates that upon receipt of such funds they were deposited in respondents' escrow account pending closure of the respective transactions. Notwithstanding, at the time of audit, the bank balance was only $9,500, leaving a deficit of $2,500 on pending transactions. The audit further revealed that respondents had not been reconciling their escrow account on a monthly basis by comparing the brokers' escrow liability with their bank balance. At most, respondents balanced their bank statements, but made no effort to relate such balance to their escrow liability. Following the audit, respondents were accorded three days to account for the shortage or replace it with their own funds. Respondents were unable to account for the shortage within such time, and offered no explanation for such shortage at hearing, but did promptly replace it with their own funds. Respondents cooperated fully with the Department's investigator and, as heretofore noted, promptly replaced the shortage with their own funds. Moreover, there was no suggestion or proof that respondents had previously been the subject of any prior disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be rendered finding the respondents guilty of violating the provisions of Section 475.25(1)(b), (e) and (k), Florida Statutes, and that respondents be placed probation for a term of one (1) year and fined $1,000.00 for such offenses. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of June 1992. WILLIAM J. KENDRICK 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 30th day of June 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6683 The Department's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 2. 2 & 3. Addressed in paragraph 3. 4-6. Addressed in paragraphs 4 and 5, otherwise subordinate. Addressed in paragraph 5, otherwise subordinate. Addressed in paragraphs 5 and 6, otherwise subordinate. Addressed in paragraphs 4-6, otherwise subordinate. Addressed in paragraph 6. The Respondents' proposed findings of fact are addressed as follows: Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 4. Subordinate. Addressed in paragraph 5. Second sentence rejected as contrary to the credible proof. Addressed in paragraph 5. 7 & 8. Addressed in paragraph 4, otherwise subordinate. 9 & 10. Rejected as not a finding of fact. See paragraph 4, Conclusions of Law. Addressed in paragraph 6, otherwise not relevant. Addressed in paragraph 6. 13-15. Addressed in paragraph 7, otherwise rejected as recitation of testimony and not a finding of fact. COPIES FURNISHED: Theodore R. Gay, Esquire Senior Attorney Department of Professional Regulation Suite N-607 401 N.W. 2nd Avenue Miami, Florida 33128 Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801
The Issue The issue in this case is whether the allegations of the Administrative Complaints are correct and, if so, what penalty should be imposed.
Findings Of Fact R. Granger Bruner is and at all material times has been licensed as a real estate broker, Florida license number 0010871. CASE NO. 90-2462 On or about September 9, 1989, Mr. Bruner obtained a contract from Alabama resident Earl W. Reed in which Mr. Reed offered to purchase certain property from owner Gary Salter. 1/ Mr. Reed, by his check, deposited with Mr. Bruner the sum of $1,000, as an earnest money deposit in connection with Mr. Reed's offer to purchase Mr. Salter's property. Mr. Bruner erroneously deposited Mr. Reed's earnest money deposit check into the Granger Bruner Realty operating account at People's National Bank of Niceville. Mr. Bruner's escrow account, where the earnest money deposit should have been held, was at the local Barnett Bank in the name of Granger Bruner Realty Trust Account. On or about September 14, 1989, the listing agent for Mr. Salter contacted Mr. Bruner's office and informed Mr. Bruner that Mr. Salter had withdrawn the property from the market. By letter dated September 21, 1989, Mr. Bruner notified Mr. Reed that the property had been withdrawn from the market and that the earnest money deposit was being returned. Enclosed with the letter was People's National Bank of Niceville check #509 drawn on the operating account of Granger Bruner Realty in the amount of $1,000 payable to Earl Reed. The letter and check were mailed to Mr. Reed at his address in Alabama. Mr. Reed apparently did not receive the letter or check, and became concerned about the return of his deposit money. The administrative complaint alleges that Mr. Reed continued to demand return of the deposit. Although the Department introduced a copy of Mr. Reed's complaint, Mr. Reed did not testify. The evidence does not establish that Mr. Reed made repeated demands on Mr. Bruner for return of the deposit. The complaint further alleges, but the evidence does not establish, that the September 21, 1989 check was not mailed until September 28, 1989. On September 30, 1989, Mr. Reed met in Crestview with Mr. Bruner and demanded the return of his earnest money deposit. Mr. Bruner issued check #2924 in the amount of $1,000 from Mr. Bruner's wife's personal account payable to Earl Reed. Mr. Bruner subsequently had a stop-payment order issued against the first check to Mr. Reed. CASE NO. 90-2463 Prior to October 6, 1989, Elaine Brantley, an auditor/investigator for the Department contacted Mr. Bruner and made an appointment to perform a routine audit on Mr. Bruner's accounts. Prior to October 6, 1989, Mr. Bruner was aware that his escrow account was short. On that date, Mr. Bruner deposited approximately $1,400 into his escrow account to cover the shortage. The deposit resulted in an overage in the account. Upon Ms. Brantley's arrival, Mr. Bruner informed her that the escrow account was short, that he'd gotten behind in bookkeeping, and that his secretary was depositing additional funds into the escrow account. Ms. Brantley had Mr. Bruner telephone the bookkeeping department at Barnett Bank. With Mr. Bruner's approval, Ms. Brantley asked for and obtained the balance of the escrow account by telephone from a bank employee. 2/ Mr. Bruner then informed Ms. Brantley that escrow account liabilities totaled $1,727.38. Ms. Brantley reviewed the account's check ledger and determined that the escrow account was indeed short. During the audit, Ms. Brantley noted an escrow account check #453 dated 7/25/89 in the amount of $500 made payable to Mr. Bruner. Ms. Brantley stated that Mr. Bruner said that he had disbursed the funds to himself to cover a mortgage payment he made to a third party identified as Ms. Penner. At hearing, Mr. Bruner testified that he had used his escrow account to cash a $400 check for another person, and that check #453 was drafted to recover his personal funds from the account. He stated that the check was written in error and that the transaction was not handled correctly. He admitted that he did not know the balance of the escrow account at the time the check was written. The recorded checkbook balance at the time was $340.19. At the time of the audit, Ms. Brantley also noted check #487 dated 9/26/89 in the amount of $500 to Ms. Penner. The evidence establishes that check #487 was Mr. Bruner's personal mortgage payment to Ms. Penner.
Recommendation Based upon the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the licensure of R. Granger Bruner for a period of 90 days, and imposing a total fine of $2,000, including $1,000 pursuant to Rule 2IV-24.001(3)(1), Florida Administrative Code, and $1,000 pursuant to Rule 21V-24.001(3)(c) and (f), Florida Administrative Code. It is further recommended that R. Granger Bruner be required to successfully complete a course of education related to management of operating and escrow trust accounts and be required to file escrow account status reports with the Commission at such intervals as the Commission deems appropriate. DONE and ENTERED this 17th day of April, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-2462 The Petitioner did not file a proposed recommended order. The Respondent filed a "Proposed Order" which sets forth proposed findings of fact. The proposed findings are accepted as modified in the Recommended Order except as follows: "Proposed Order" Accepted as to failure to prove exact amount of escrow account shortage. Rejected as to whether a shortage existed, contrary to evidence. Rejected. The testimony at hearing that certain deposits were not received is contrary to information provided to auditor and was not credited. Although the testimony related to the escrow account balance was unsupported hearsay, the auditor's testimony related to deposits and liabilities was based upon admissions by the Respondent. See Section 90.803(18), Florida Statutes. Rejected, conclusion of law. Rejected, not supported by weight of evidence. 8-9. Rejected, unnecessary. 10. Rejected, immaterial. 11-12. Rejected, unnecessary. "Finding of Fact" The Respondent also filed a separate statement entitled "Finding of Fact" which includes additional proposed findings of fact. The proposed findings are accepted as modified in the Recommended Order. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney Department of Professional Regulation Division of Real Estate Hurston North Tower 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802-1900 Bart O. Moore, Esquire Moore, Kessler & Moore 102 Bayshore Drive Niceville, Florida 32578 Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Division of Real Estate Hurston North Tower 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue is whether Bennett committed the violations as alleged and, if so, what discipline is appropriate. More specifically, did he violate Section 475.25(1)(b), (d) and (k), Florida Statutes, by committing fraud, culpable negligence or the like, by failing to account for and deliver trust funds, and by failing to properly maintain trust funds?
Findings Of Fact Respondent, Fred M. Bennett was, at all times relevant, licensed as a real estate broker in the State of Florida, having been issued license number 0161968 in accordance with Chapter 475, Florida Statutes. Harold E. McNally is a self-employed businessman from Chillicothe, Ohio. He met Fred Bennett in 1976 or 1977 when he bought some property in Orlando. Thereafter, the relationship continued with McNally buying and selling property as an investment, and Bennett acting as agent or purchaser. Four of McNally's properties in Orlando, Florida were held as rentals: 3939 Spoonbill Avenue 4525 Salvia Drive 7806 Toledo Street 1308 Forester Avenue Bennett collected the rents and sent them to McNally, after deducting his management fee. There was no written management agreement, but rather McNally leased the properties back to Bennett. Later, those leases expired and since the market was not good for sales, Bennett and McNally continued their relationships with Bennett sending the rents and deducting his fees. The rents were $450.00 and $485.00 per month and his fee was $93.00 per month in 1986. The rents remained the same in 1987, but the management fee was raised to $103.00 per month. Beginning in May 1986, the rents were not sent to McNally on a regular basis. McNally attempted to contact Bennett but was unsuccessful. By July 1987, Bennett owed McNally $11,169.00 for back rents and a $400.00 deposit on one of the houses. After McNally retained counsel and sent a letter informing Bennett that he was terminating the management arrangement, Bennett eventually returned the keys and (with the exception of one which he had applied to rent) transferred the tenants' deposits to McNally's new agent. Bennett attempted to account for the back rents with promissory notes. McNally never acknowledged the notes and filed them. The $11,169.00 was never paid. James D. Stayton is another real estate investor who dealt with Bennett. He had two properties which Bennett handled for him. Between September 20, 1984, when he acquired the property, and October 1986, when he removed the property from Bennett's control, Stayton was owed $7,447.44 in back rents. Again, Bennett signed a promissory note in this amount, but never paid on the note. Bennett admits that he owes the funds but denies fraud or dishonesty and claims that his failure to pay the rents was the result of a business deal that went bad. Bennett Does not claim that the rents were not collected. One tenant, Patricia Sulter established that she lived in the 4525 Salvia Drive unit and paid her deposit and rents regularly to Bennett during the months when Bennett failed to forward the funds as agreed, to Harold E. McNally.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Fred M. Bennett guilty of violations of Section 475.25(1)(b) and (d), Florida Statutes, imposing a $4,000.00 fine and suspending his license for four years. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 31st day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4903 The following constitute specific rulings on each of the findings of fact proposed by the Petitioner: Adopted in paragraph :1. Adopted in paragraph #3. Rejected as unsupported by the evidence. & 5. Adopted in paragraph #5. Adopted in paragraph 6, except for the finding that the funds were converted to Bennett's own use, which finding was not proven. Adopted in paragraph #6. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation - Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred M. Bennett Post Office Box 3102 Orlando, Florida 32802 Darlene Keller, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
Findings Of Fact At all times material hereto Respondent Marvin M. Kornicki has been a licensed real estate broker in the State of Florida, having been issued License Nos. 0265344 and 0252335. The last license issued was as a broker for Waterway Properties, Inc., t/a Waterway Properties. At all times material hereto, Respondent Waterway Properties, Inc., t/a Waterway Properties, has been a corporation registered as a real estate broker in the State of Florida, having been issued License No. 0265344. At all times material hereto, Respondent Kornicki was licensed and operating as the qualifying broker and an officer of Respondent Waterway Properties, Inc. On January 7, 1990, Respondents solicited and obtained an offer in the amount of $155,000 from Alda Tedeschi and John Tocchio, buyers, to purchase real property, to-wit: Unit 422 at Mariner Village Garden Condominium, Aventura, Florida, from Arthur Goldstein and Myra Goldstein, sellers. The buyers' offer reflected a $1,000 deposit to be held in trust by the Respondent Waterway Properties, Inc. The offer reflected that if the offer was not executed by and delivered to all parties, or fact of execution communicated in writing between the parties, on or before January 10, 1990, the deposit would be returned to the buyers and the offer would be withdrawn. The offer also reflected that "time is of the essence." On January 8, 1990, Respondents sent the buyers' offer to the sellers in New Jersey by air express. On January 10, 1990, the sellers signed the offer but made it a counteroffer by requiring the buyers to furnish an additional deposit of $14,500 by January 12, 1990, and requiring the buyers to sign a condominium rider and an agency disclosure form. The sellers returned the counteroffer with condominium rider and agency disclosure form to the Respondents. On January 12, 1990, Respondents sent the counteroffer, condominium rider, and agency disclosure form, together with a letter dated January 11, 1990, to the buyers for the buyers' initials and signatures. Although the buyers could not have received the counteroffer until after its expiration date, they advised Respondents by telephone that they had in fact initialed the counteroffer and mailed it back to Respondents. Respondents never received from the buyers that accepted counteroffer. The buyers subsequently verbally demanded the return of their $1,000 deposit, but Respondents wrote to the buyers on February 9, 1990, advising the buyers that they were in default. On February 8, 1990, Respondents had already disbursed the $1,000 deposit to Respondents' operating account since the sellers had told the Respondents to use the deposit to cover the costs incurred advertising the sellers' property. Since he was uncertain as to whether he had "conflicting demands upon an escrow deposit" Respondent Kornicki telephoned the Florida Real Estate Commission and discussed the matter with one of the Commission's attorneys. Because Respondent Kornicki believed that the buyers were "in default," Respondents failed to notify the Florida Real Estate Commission in writing that they had received conflicting demands. No explanation was offered as to why Respondent Kornicki believed the buyers were in default when the counteroffer could not have been signed by the buyers prior to its expiration and when Respondent Kornicki had never seen a fully executed document. Further, no explanation was offered as to why the sellers believed they were entitled to the money. Since that transaction, Respondents have experienced other transactions where conflicting demands were made. In those subsequent instances, they have timely notified the Florida Real Estate Commission in writing as to those conflicting demands. On June 18, 1990, Petitioner's investigator conducted an office inspection and escrow/trust account audit of Respondents' office and escrow/trust account. That audit revealed that Respondents wrote a trust account check on September 1, 1989, in the amount of $369.15, which was returned on October 3, 1989, for insufficient funds. A second trust account check in the amount of $800 was also returned for insufficient funds on October 3, 1989. Respondents had received rental monies from a tenant by check. Respondents had written checks out of those monies for the mortgage payment on the rental property, not knowing that the tenant's check would fail to clear. The worthless check written by the tenant caused these checks written by Respondents to be returned for insufficient funds. Respondents have changed their office policies so that they no longer accept checks from tenants except before tenants move into rental properties and the checks must clear before the tenants are allowed to take possession of the leased premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent Kornicki guilty of Counts I, III, V, VII, IX, and Finding Respondent Waterway Properties, Inc., guilty of Counts II, IV, VI, VIII, X, and XII; Dismissing Counts XIII and XIV; Ordering Respondent Marvin M. Kornicki to pay a fine of $1,000 to the Division of Real Estate within 60 days and revoking Respondents' licenses should such fine not be timely paid; Placing Respondents on probation for a period of one year if the fine is timely paid; Requiring Respondent Kornicki to complete and provide satisfactory evidence of having completed 60 hours of approved real estate post-licensure education for brokers, 30 hours of which shall include the real estate broker management course, during the probationary period; Establishing terms for the probationary period except that such probationary terms shall not require Respondent Kornicki to retake any state licensure examinations and Requiring Respondent Kornicki to appear before the Commission at the last meeting of the Commission preceding the termination of Respondents' probation. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of February, 1991. LINDA M. RIGOT 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 13th day of February, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-5863 Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 2-4, 6-14, and 16-19 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 5 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed finding of fact numbered 15 has been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Jack McCray, Esquire Department of Professional Regulation Legal Division 1940 North Monroe Street Tallahassee, Florida 32399-0792 James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Marvin M. Kornicki Waterway Properties, Inc. 16560 Biscayne Boulevard North Miami Beach, Florida 33160
Findings Of Fact On December 30, 1993, the Department received an application to organize a proposed new trust company to be located in Miami, Dade County, Florida, and to be called Columbus Trust Company (Columbus). Four individuals to be associated with Columbus are foreign nationals: Arturo Vinueza and Mario Yepes are proposed board of directors members; and Catalina Landes and Pedro Ycaza are major stockholders of Columbus. All other directors and stockholders of Columbus are citizens of the United States. They are: Charles C. Hardwick, III, Michael Hollihan, and Timothy S. Reed. All of the individuals listed in paragraphs 2 and 3 attended the public hearing. Mr. Vinueza is the proposed chief executive officer for Columbus. He is a graduate of the University of Miami and has more than thirteen years of banking and trust experience. Mr. Vinueza has served as manager or managing director of Citibank, N.A., Quito, Ecuador; Banco Popular International, Nassau; The Jersey Private Bank and Trust, Nassau; and Banco Popular del Ecuador, Miami Agency. Charles C. Hardwick, III, a proposed director, is a graduate of the University of Colorado, College of Law. He has more than twelve years of experience in international finance. Timothy S. Reed, a proposed director, is a graduate of Dartmouth College, and is a career banker, having retired from Citibank, N.A., New York, after more than thirty years of continuous service. He has served as general manager of Banco Popular del Ecuador, Miami Agency, for the past three years. Michael Hollihan, a proposed director who will serve as chief investment officer, has a degree in economics from the University of Wisconsin. He has completed graduate course work in economics at the University of South Carolina, and has been engaged in the business of international trade, finance and investments for more than twenty years. Mr. Hollihan was previously employed by Banco Central del Ecuador. For the past four years he has served as President of JPBT Advisors, Inc. in Miami. Mario Yepes, a proposed director, also has a degree in economics and was a teacher at the university of Colombia. He worked for a number of years for Bank of America, both in Miami and in Venezuela. Catalina Echevaria Landes, a major stockholder, is a business woman and interior designer. She has her own business located in Miami. Pedro Ycaza, a major stockholder, has a degree in business from a university in Ecuador. He worked for various banks in Ecuador for a number of years before joining Banco Popular in 1986. The Applicants seek to organize Columbus to provide trust services and investment management services to individuals having business or personal interests in the Miami area, and to JPBT Advisors, Inc. JPBT Advisors, Inc. advises certain mutual funds specializing in international investments. The Applicants propose to expand such services gradually to include private banking and investment management services to international investors residing or doing business in Miami and Dade County, Florida. The existing business of JPBT Advisors, Inc., which has annual revenues of approximately $3 million, will contribute to the income of Columbus during its initial period of operations as the bank develops its personal trust and investment management business. The proposed board of directors consists of individuals having many years of banking and business experience in the areas of international finance and asset management. Both Mr. Vinueza, the proposed chief executive officer, and Mr. Reed, a proposed outside director, have had direct experience as officers of financial institutions within the past three years and are presently employed in such capacities. The initial capital for Columbus will be $2 million. The initial capitalization of Columbus is adequate in relation to is proposed business activities. The corporate name of Columbus is reserved with the Department of State. Columbus will have suitable quarters in the Barnett Bank building located at 701 Brickell Avenue, Miami. Columbus' application was prepared by Richard Hunt, a financial consultant, who has been engaged in the business of providing such consulting services to organizing financial institutions for more than 25 years. The economic study and demographic analysis of the market for fiduciary services in Dade County, prepared by Mr. Hunt, concluded that the organization of Columbus will serve the convenience and advantage of its expected clients. The local conditions in Miami are favorable to Columbus' business plan. DONE AND ENTERED this 7th day of March, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 7th day of March, 1995. APPENDIX TO REPORT OF PUBLIC HEARING, CASE NO. 94-6306 All proposed findings of fact were submitted by stipulation of the Department and Columbus. COPIES FURNISHED: Hon. Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper, General Counsel Department of Banking and Finance The Capitol-Room 1302 Tallahassee, Florida 32399-0350 Rod Jones Shutts and Bowen 20 North Orange Avenue, Suite 1000 Orlando, Florida 32801 Albert T. Gimbel Chief Banking Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Jeffrey D. Jones Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE DIVISION OF BANKING IN RE: Application for Authority to Organize a State Chartered Trust Administrative Proceeding Company to be located at Number: 3328-B-11/94 701 Brickell Avenue, Miami, DOAH Case Number: 94-6306 Dade County, Florida (Columbus Trust Company) / FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER Having considered the facts and information contained in the application for authority to organize and operate Columbus Trust Company (Applicant), 1 have determined that the Applicant has met all six (6) statutory criteria set forth in Section 658.21, Florida Statutes, or can meet those criteria by complying with specific conditions. Accordingly, the application is approved, subject to the conditions specified herein.
Findings Of Fact The parties stipulated to facts set forth in paragraphs 1-8, below. Stipulated Facts The Petitioner is the Division of Real Estate of the Department of Professional Regulation. As such, Petitioner acts as the licensing and regulatory agency for real estate broker licensees. The Respondent is Harriet M. Arndt, holder, at all times pertinent to these proceedings, of license number 0002216 issued by Petitioner. Her address of record is One South Ocean Boulevard, Suite 322, Boca Raton, Florida 33431. On January 28, 1987, Respondent received in trust an earnest money deposit in the amount of $39,000 from a buyer for a piece of property listed with another realtor, Merrill Lynch Realty, Inc. At closing of the sales transaction on February 25, 1987, Respondent delivered a check drawn on her trust account in the amount of $15,600 and made payable to Merrill Lynch Realty, Inc. This payment represented payment of one half of the $31,200 real estate brokerage commission. The check was subsequently returned to Merrill Lynch Realty, Inc. due to "non-sufficient funds." On March 27, 1987, Respondent delivered a cashier's check in the amount of $15,600 to Merrill Lynch Realty, Inc., to replace the February 25, 1987, check. The Respondent's real estate brokerage trust account was overdrawn from January 8, 1987 through March 4, 1987, by amounts ranging from $12,991.39 to $14,306.53 on various days during that period. The Respondent failed to maintain the $39,500 earnest money deposit in her trust account from February 2, 1987 until February 25, 1987, because the trust account's daily balance was less than that amount during that period. The Respondent subsequently failed to maintain the $15,660 due to Merrill Lynch Realty Inc., in the trust account from February 25, 1987, through March 25, 1987, because the trust account's daily balance was less than $15,600. From March 19, 1987, through October 29, 1987, Petitioner's investigator requested Respondent to produce for inspection and copying those books and papers relating to Respondent's trust account which are maintained in connection with Respondent's real estate activities. The Respondent failed to make the requested trust account books and records available at any time. Other Facts The Respondent offered mitigating testimony establishing that she was initially licensed in 1978 and has never been censured by Petitioner for any professional violations. She is 57 years of age and her real estate license is her sole source of support. Further, Respondent has borrowed money from her children to make up the deficit in her trust account. The testimony of Respondent also established that she was introduced to a gentleman named Robert H. Lajoie by another realtor in December of 1986. Subsequently, on or about December 8, 1986, Respondent entered into a nefarious arrangement with Lajoie. Under terms of the arrangement, Lajoie gave Respondent a check for $25,500 as a deposit to purchase a property listed with Respondent. In turn, Respondent gave Lajoie back a cash deposit of $10,000 from her trust fund in connection with a contract between the two of them whereby Respondent was to purchase a property of Lajoie's. The closing of the sale of Lajoie's property to Respondent would not take place until May, 1987. Lajoie returned to his native Canada shortly after receiving the $10,000 cash payment from Respondent and died. Shortly thereafter, payment on Lajoie's $25,500 check to Respondent was stopped. The Respondent is not sure whether this action was taken by Lajoie prior to his death or by his estate subsequent to that event. It is Respondent's contention that the loss of the $10,000 cash deposit to Lajoie resulted in a negative net balance in her trust account and eventually all of her financial difficulties in this case. The Respondent was sent an overdraft notice by her bank on January 8, 1987, stating that her trust account was overdrawn by $13,500 and that a check for $25,500 had been returned. Subsequent overdraft notices dated January 13, 1987 and January 21, 1987, were received by Respondent noting the rejection of two of Respondent's checks; one in the amount of $294.90 and the other in the amount of $34.35. The notice of January 13, 1987, indicated a hold on the account in the amount of $2,862.94 against the account's balance of $3,006.19. The January 21, 1987, notice continued this hold on the account's balance of $2,891.45. The Respondent related a series of personal matters at hearing that had prevented her from keeping appointments with Petitioner's investigators to inspect her records. She agreed to make access to those records immediately available.
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 offenses charged in the administrative complaint, imposing an administrative fine of $1,000 and suspending her license for a period of six months. DONE AND RECOMMENDED this 22nd day of July, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1472 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1-2. Included in finding 1. 3-8. Included in findings 3-8 respectively. Respondent's Proposed Findings 1. Included in finding 2. 2-5. Included finding 10. Included in finding 3. Included in finding 4, 5, and 10. Included in finding 8 and 12. 9-10. Rejected. 11. Included in finding 9. COPIES FURNISHED: Steve W. Johnson, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Robert E. Gordon, Esquire 2601 Tenth Avenue North Suite 314 Lake Worth, Florida 33461-3197 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Acting Director Department of Professional Regulation Division of Real Estate 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Respondent is guilty of discrimination in employment on the basis of age.
Findings Of Fact Petitioner Boots is 56 years old. Prior to his termination, he had been employed in the life insurance business by Respondent or its predecessors for over 20 years. Until early 1988, Petitioner's employer was Security Trust Life Insurance Company. During that year, Respondent or its parent, Southlife Holding Company, purchased the assets or stock of Security Trust Life Insurance Company. In any event, the result from Petitioner's point of view was that Respondent became his new employer. Following the change in ownership, the operations of the two companies were combined. Prior and subsequent to the merger of operations, Petitioner was the manager of the Orlando district office, which was primarily involved in the sale of debit insurance. The physical turnover of operations in the Orlando office took place on or about March 7, 1988. Prior to this date, representatives of Respondent had conducted meetings with the employees of Security Trust Life Insurance Company and discussed with them, among other things, the compensation that they could expect to receive as employees of the new company, especially during the start-up period. Following the merger, Petitioner believed that Respondent was not living up to the promises that it had made to him and the employees under his supervision. Unable to reach his immediate supervisor, Petitioner called Ted Lazenby, who is president and chairman of the board of Southlife Holding Company. Petitioner voiced his complaints to Mr. Lazenby. Following the telephone conversation, Mr. Lazenby contacted Petitioner's immediate supervisor, Frank Gregor, and expressed his displeasure with Petitioner and his attitude. Mr. Gregor consulted with his immediate supervisor, James C. Bellamy, who is the senior vice president of Respondent. Messrs. Gregor and Bellamy had previously discussed Petitioner's attitude that Respondent was poorly managed and cheap with its employees. Messrs. Gregor and Bellamy had already discussed Petitioner's record with Respondent. In general, it was not good, and the Orlando district did not show signs of the kind of growth necessary for a successful debit insurance business. Petitioner's production record was the worst in the division and the region. The manager of the next-worst district was also fired. With Mr. Lazenby's complaint as a catalyst, Messrs. Gregor and Bellamy decided to terminate Petitioner. The following morning, Mr. Gregor visited Petitioner in the Orlando office and fired him, citing Petitioner's poor record combined with questionable judgment in complaining to the head of the holding company. Respondent replaced Petitioner with a 44 year old man, who had been assistant manager of the Orlando office.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed. ENTERED this 16th day of June, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on this 16th day of June, 1989. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-7 Adopted or adopted in substance. There was a conflict in testimony between Mr. Gregor and Petitioner as to when the merger took place. Mr. Gregor's testimony has been given the greater weight, but the difference is immaterial to the outcome of the case. 8-9 Rejected as subordinate to the finding that Petitioner's performance was substandard. Rejected as against the greater weight of the evidence. Adopted. Rejected as irrelevant. Treatment Accorded Proposed Findings of Respondent 1 Adopted 2-3 Rejected as legal argument. 4-6 Adopted. Rejected as recitation of testimony. Adopted. Rejected as irrelevant and subordinate. 10-12 Adopted in substance. 13-15 Rejected as subordinate. 16. Rejected as recitation of testimony. COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 N. James Turner Buso & Turner, P.A. 17 South Lake Avenue, Suite 104 Orlando, FL 32801 Joseph A. Woodruff Waller Lansden Dortch & Davis 2100 One Commerce Place Nashville, TN 37239
The Issue Whether Petitioner is entitled to licensure as a real estate salesperson.
Findings Of Fact Respondent is the agency of the State of Florida responsible for the licensure of real estate professionals. On October 19, 1993, Petitioner submitted to Respondent his application for licensure as a real estate salesperson. In his application, Petitioner disclosed that he had been disbarred as a member of the Florida Bar by decision of the Florida Supreme Court. The actions for which Petitioner was disbarred were described in detail by the Florida Supreme Court's decision in The Florid Bar v. Ellis S. Simring, 612 So.2d 561 (Fla. 1993). The Florida Supreme Court found that there was clear and convincing evidence that Petitioner had repeatedly and intentionally violated trust accounting procedures, had commingled trust and personal funds, and had misappropriated client funds for his personal use. The Florida Supreme Court further found that the Petitioner had violated the Court's order that temporarily suspended him from practice. Petitioner denied that he misappropriated funds from any client, but he admits the other major violations found by the Supreme Court. Petitioner testified that he was suffering from chronic fatigue syndrome and flu-like symptoms when the trust account violations occurred during 1988 and 1989. As a result of a recommendation from an acquaintance, he took large doses of Vitamin C, which aggravated his hemorrhoidal condition and resulted in bleeding. Petitioner testified that his ability to practice law was limited by his medical condition and that his income from his practice suffered as a consequence. Petitioner testified that his secretary acted as his administrative assistant during that period of time and that she was responsible for maintaining his trust account, but he did not attempt to blame her for the admitted deficiencies pertaining to his trust account. Petitioner failed to keep or retain appropriate trust account records, caused the proceeds from the sale of his personal property and from loans he had taken out to be deposited in the trust account, and caused office expenses and personal expenses to be paid out of his trust account. Petitioner settled a personal injury action in which he represented a minor child by the name of Barnett. The proceeds of the settlement in the amount of $45,000 was transferred from his trust account to that of another lawyer who was a non-practicing retired lawyer and friend of the Petitioner. The purpose of that transfer was to hide those funds from the Internal Revenue Service. The Florida Supreme Court found that Petitioner misappropriated a portion of these funds. Petitioner disputes that finding. The misconduct to which Petitioner admitted at the formal hearing and his disbarment from the practice of law by the Florida Supreme Court create a presumption, pursuant to Section 475.17(1)(a), Florida Statutes, that he is not qualified for licensure as a real estate professional. Petitioner did not offer any competent, substantial evidence which would establish that he is honest, truthful, trustworthy, and of good character or that would otherwise rebut the presumption of disqualification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure as a real estate salesperson should be denied. DONE AND ENTERED this 6th day of September, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of September, 1994. COPIES FURNISHED: Ellis Stewart Simring, pro se 3785 Westminister Street Hollywood, Florida 33021 Manuel E. Oliver, Esquire Assistant Attorney General Office of the Attorney General Suite 107 South Tower 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Department rules on the Proposed Findings of Facts and Exceptions, submitted by the parties as follows: APPLICANT'S PROPOSED FINDINGS AND CONCLUSIONS Applicant's Proposed Findings numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 27, 28, and 29 are accepted to the extent that they are not inconsistent with the Findings of Fact rendered by the Hearing Officer. Applicant's Proposed Finding number 22 is accepted to the extent that factual matters are discussed. However, to the extent that it suggests that "public convenience and advantage" will be promoted by establishment of the trust company, the Department rejects this conclusionary statement as inconsistent with the Department's conclusion as to this criterion based on the reasons as discussed in paragraph three (3) contained in the Conclusions of Law of the Final Order. Applicant's Proposed Finding number 25 concerning the telephone survey has been dealt with in the Hearing Officer's Finding number 13, as adopted by the Department. Applicant's Proposed Finding number 26 concerns several counter- arguments addressing contentions proposed by the Protestants. As to (1) "Concentration", (2) "Dual Banking", and (3) "Siphoning of Capital". To the extent that no significant findings of fact, if any, were premised on these contentions, there is no necessity to respond. A portion of the Hearing Officer's Finding of Fact number 10, was excepted to, concerning the "concentration" argument, and will be treated below in paragraph 9. Number 4 concerning injury to existing institutions has been dealt with in the Final Order in paragraph 4 of the Conclusions of Law, as to the "reasonable promise". The Applicant's Conclusions of Law numbers 1, 4, 5, 6, 7 are accepted. Numbers 2, 3, and 8 are rejected as contrary to the Conclusions of the Final Order. PROTESTANT'S (FLORIDA BANKERS ASSOCIATION) PROPOSED FINDINGS Protestant's Proposed Findings numbers 1, 2, 3, 4, 5, 13, 18, 19, 20, 21, 23, 29, 30, 34, and 35 are accepted to the extent that they are generally consistent with the Hearing Officer's Findings or with the Final Order. Protestant's Proposed Findings numbers 6, 7, 8, 9, 10, 12, 14, 15, 16, 17, 22, 24, 25, 26, 27, 28, 31, 32, 33, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, and 47 are rejected to the extent that they are inconsistent with the Hearing Officer's Findings or with this Final Order, or are otherwise irrelevant or immaterial. APPLICANT'S EXCEPTIONS The Applicant's Exceptions numbers 1, 2, 3, 4, 5, 6, and 10 concern Proposed Findings that were not specifically referenced in the Hearing Officer's Report. However, they are generally consistent with the Hearing Officer's Findings and have been accepted by the Department to the extent that they are consistent with the Final Order. Exception 7, concerning Proposed Finding number 18, has been discussed above in paragraph 1. Exception 8, concerning Proposed Finding number 22, has been discussed above in paragraph 2. Exception number 9, concerning objection to portions of Finding of Fact number 10, is rejected. The first sentence of the Finding may speak in terms of "national trust business", but is viewed in terms of trust business throughout the nation. In no wise does it imply that there is a national market for personal trust business. The language should be viewed in the context of the overall finding. Exception number 10 is duly noted and reflected in the Final Order. Exception number 11 has been addressed in the Final Order in paragraph 4 of the Conclusions of Law as to "resonable promise." CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing was filed with the Clerk of the Department of Banking and Finance and that a true and correct copy of the foregoing was sent by Certified U.S. Mail, Return Receipt Requested, to: Thomas J. Cardwell, Esquire, Post Office Box 231, Orlando, Florida 32802; Robert A. White, Esquire, Aubrey Kendall, Esquire, and Paul Brenner, Esquire of the firm Mershon, Sawyer, Johnston, Dunwoody and Cole, 1600 Southeast First National Bank Building, Miami, Florida 33131; Howard A. Setlin, Esquire, 1111 Lincoln Road Mall, Suite 600, Miami Beach, Florida 33139; Bruce Culpepper, Esquire, 350 East College Avenue, Tallahassee, Florida 32301; Robert Asti, Esquire, 2400 First Federal Building, Miami, Florida 33131; Richard R. Paige, Esquire, Alfred I. DuPont Building, Miami, Florida 33131; Charles Cane, Esquire, 801 Hallandale Beach Boulevard, Hallandale, Florida 33009; and G. Kenneth Kemper, Esquire, 9999 N.E. 2nd Avenue, Suite 200, Miami Shores, Florida 33138, on this 24 day of January, 1980. FRANKLYN J. WOLLETT Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 (904) 488-9886
