Findings Of Fact Robert & Gilman, Inc. at all times herein involved was registered as a real estate broker by the State of Florida. Delair A. Clark at all times herein involved was registered as a real estate salesman by the State of Florida. Residential property owned by William L. and Frances Crummett was listed with J.B. Steelman, Jr. real estate broker and put on Multiple Listing Service. On June 17, 1972, immediately after the For Sale sign was erected, Respondent, Delair A. Clark, presented an offer to the sellers on this property which was accepted by sellers on the same date presented (Exhibit 9). This contract provided the purchase price of $28,500 with a $300 earnest money deposit, the usual clauses in a form contract for sale and purchase, and two special clauses to wit: "A. Subject to: Buyer being reassigned to central Florida prior to June 22, 1972. In the event the assignment does not materialize by June 23, 1972 deposit will, be returned in full and contract will be null and void. B. Subject to: Buyer obtaining a 90 percent conventional loan for a period of 25 years or an FHA loan for 30 years." By telegram dated 6/20/72 (Exhibit 8) buyer confirmed re-assignment to Orlando, thus satisfying condition A in the contract. Buyers thereafter asked for earlier occupancy than originally called for. Since special arrangements would have to be made by sellers, Mr. Crummett asked for an amendment to the contract to increase the earnest money deposit to $1,000 of which $500 would be non-refundable if contract was not consummated. This amendment was duly executed by the buyers on July 15, 1972 and by the sellers. A copy thereof was admitted into evidence as Exhibit 11 which provides: "SPECIAL CLAUSE" "C. An additional deposit of $700 will be made on July 17, 1972, of which $500 will be non-refundable in the event the referenced contract is not consumated (sic)." This amendment was forwarded to the sellers by Respondent's Roberts & Gilman letter of July 17, 1972 which amendment was executed by the sellers upon receipt and mailed back to Roberts & Gilman. The July 17, 1972 letter was signed by Judy L. Rostatter of the sales processing department. A copy of the check received from the buyers was not enclosed although the letter stated it was enclosed. Prior to receipt of this amendment Crummett was advised by Richter, the buyer, that he had mailed a $700 check to Roberts & Gilman made payable to Crummett. Crummett was also advised by Respondent Clark that the check had been received. Since closing was scheduled to be held within a couple of days Crummett requested Clark to hold the check and he would endorse same at closing. Crummett never saw the original check for $700. On the day originally scheduled for the closing (circa July 18, 1972) Crummett received a telephone call from Respondent Clark to the effect that the appraisal on the property had come in some $3,000 below the asking price and inquiring if Crummett would accept $26,000 for his property. The latter advised he would not and, after some heated words, Crummett hung up. At this time it was evident to Respondent Clark and the sellers that the sale would not be consummated. Clark put a memo in the file dated July 28, 1972 saying: "Return checks of $700 + $300 in estrow (sic) to Richter. Seller advised we had no contract." A few weeks later, on August 3, 1972, after making several phone calls to Roberts & Gilman without success, Crummett had the listing broker, J.B. Steelman, write a letter (Exhibit 7) to Gilman making demand for the $500 deposit refund. By letter dated August 11, 1972 (Exhibit 6) Roberts and Gilman replied that they considered the contract had been terminated by the seller and saw no "justification by the seller to claim any escrow that has been returned to the buyer". This letter was signed "Dan T. Gilman /b.c." Several months later, in the spring of 1973, Crummett went to the office of Roberts and Gilman and obtained a photostatic copy of the check dated 7/15/72 that had been made by J.A. Richter in the amount of $700. This was admitted into evidence as Exhibit 12. At the hearing Dan G. Gilman, President of Roberts & Gilman, Inc. denied any recollection of any part of this transaction or ever having heard of the incident prior to the investigator from the FREC coming to inquire about the incident. At the time of this transaction the realtor's office was very busy with several branch offices and some 120 salesmen handling transactions in eight or ten counties in central Florida. He has no recollection of dictating Exhibit 12 or anything about the incident but his secretary at that time was Beverly Cass. It was standard practice for a broker to review every contract before trust account money was disbursed or refunded. His initial testimony that numerous people in the office had authority to sign his name to letters going out of the office was recanted when he was recalled as a witness after the close of the Commission's case. He then stated he never authorized anyone to sign his name to a document having legal implication. Clark testified that the first time he ever saw Exhibit 11, the amendment to the contract, was when shown to him by the investigator for the FREC. Likewise he claims never to have seen or received the $700 check signed by Richter. With respect to the return of the deposit to Richter, (after being shown Exhibit 13) his recollection of the cancellation of the contract was that Richter was not re-assigned to the Orlando area. This was the only contract ever handled by Clark which involved the return of an escrow deposit. He has no recollection of talking to any member of the realty firm regarding clearing the return of the escrow deposit to Richter. Exhibit 5 is a photocopy of the check by which the $300 earnest money deposit was returned to Richter. It is obvious that the contract for the sale of the residential property herein involved was amended to provide for an additional deposit from the buyers and a clause which required the buyer to forfeit one half of his deposit in the event the transaction was not consummated. It is incomprehensible that such an amendment to the contract could be made without the knowledge of the salesman or the broker. It therefore appears that the Defendants either: (1) are not telling the truth; (2) have faulty memories; (3) allowed the duties normally performed by brokers to be carried out by secretaries; or (4) operated a realty company in a slipshod manner without due regard to the duties and responsibilities imposed upon brokers and salesman by the real estate license law.
The Issue Whether Respondent violated section 475.25(1)(b), Florida Statutes, by committing fraud, misrepresentation, concealment, etc., or by violating a duty imposed upon him by law or by the terms of a listing contract and, if so, what is the appropriate penalty; Whether Respondent violated section 475.25(1)(d)1., by failing to timely account or deliver to any person any personal property such as money, funds, deposit, check draft, etc. and, if so, what is the appropriate penalty; and Whether Respondent, a sales associate, registered as an officer, director of a brokerage corporation, or general partner of a brokerage partnership is in violation of Florida Administrative Code Rule 61J2-5.016 and, if so, what is the appropriate penalty.
Findings Of Fact The Department is the state agency charged with regulating the practice of real estate pursuant to section 20.165 and chapters 120, 455, and 475, Florida Statutes. DOAH has jurisdiction, pursuant to section 120.574, to render a decision in this matter, which shall be final agency action subject to judicial review under section 120.68. Mr. Rivas is a licensed real estate sales associate, holding license number 3385508, issued by the State of Florida. Structure of the Brokerage Corporation On or about April 7, 2015, Respondent registered GREH with the State of Florida, Division of Corporations ("Division of Corporations"), identifying himself as the registered agent and manager of GREH. Respondent filed documents on behalf of GREH with the Division of Corporations on the following dates and identified himself with the following titles with GREH: On April 13, 2016, March 14, 2017, and April 17, 2018, Respondent identified himself as the registered agent, managing member, and president; On November 22, 2017, and April 17, 2018, Respondent identified himself as an authorized member; On April 22, 2019, Respondent identified himself as a registered agent, an authorized member, and managing member; On October 23, 2019, Respondent identified himself as registered agent and member; On November 27, 2019, Respondent identified himself as a registered agent, member, and manager; On December 6, 2019, Respondent identified himself as registered agent and shareholder; and On December 10, 2019, Respondent identified himself as registered agent. On March 23, 2017, GREH registered with the Florida Real Estate Commission ("Commission") as a real estate corporation in the State of Florida, having been issued license number CQ 1053189. At no time was Respondent registered with the Commission as a real estate broker in the State of Florida. From November 27, 2017, to October 3, 2019, Mr. Avila, who at that time was a real estate broker in the State of Florida, having been issued license number BK 3401612, was the qualifying broker of GREH. From October 3, 2019, to October 15, 2019, and from November 25, 2019, to December 9, 2019, GREH's license was invalidated due to it not having a qualifying broker. From October 15, 2019, to November 25, 2019, Gamila Murata was the qualifying broker for GREH. From December 9, 2019, to July 29, 2020, Mr. Henson was the qualifying broker for GREH. On August 22, 2019, without the authority of the qualifying broker for GREH, Respondent filed a civil action on behalf of GREH against Arnauld and Annelyn Sylvain (collectively, the "Sylvains") in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, in case number 502019CA008774XXXXMB, seeking, among other things, to recover real estate commissions allegedly claimed due by GREH and Respondent. Respondent subsequently retained attorney Monica Woodard to represent GREH in the civil proceedings, and GREH's complaint was dismissed. On or about November 19, 2019, the Sylvains filed a separate civil action against GREH in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, in case number 502019CC015230XXXXMB, seeking to recover a $10,000.00 escrow deposit. Respondent failed to inform the qualifying broker of record for GREH, Mr. Henson, who assumed that position shortly after the filing of the civil action, of the pending lawsuit. Respondent opened bank accounts on behalf of GREH, including an account called an "Escrow Account," which was controlled by Respondent and at no time was controlled by a qualifying broker for GREH. Respondent deposited escrow funds into the Escrow Account for GREH, without the authority of the qualifying broker for GREH. Respondent closed the Escrow Account held in the name of GREH and removed funds that were to be held in trust from the account without authority of the qualifying broker for GREH. Respondent controlled all communications regarding certain real estate transactions on behalf of GREH, without the knowledge or authority of the qualifying broker for GREH. Contract 1 On or about March 4, 2019, an "AS IS" Residential Contract for Sale and Purchase ("Contract 1") was entered into between the Sylvains, as buyers, and Frederick F. Breault and Evelyn Breault (the "Breaults"), as sellers, for property located at 16595 93rd Road North, Loxahatchee, Florida 33470 ("Subject Property 1"). Respondent facilitated Contract 1 on behalf of the Sylvains. Pursuant to the requirements of Contract 1, the Sylvains deposited $10,000.00 with GREH, to be held in escrow as the initial deposit. The escrow funds were delivered to Respondent in the form of a certified check drawn from SunTrust Bank in the amount of $10,000.00 and purchased by Mr. Sylvain on March 4, 2019 ("SunTrust Certified Check"). The $10,000.00 escrow funds were deposited into a bank account held in the name of GREH. The SunTrust Certified Check was deposited into a bank account over which Respondent had sole control. The GREH account in which the SunTrust Certified Check was deposited was at no relevant time controlled by a Florida licensed real estate broker. Contract 1 provided that the Sylvains had 20 days from the effective date to obtain loan approval ("Loan Approval Period"). Paragraph 18(F) of the Contract provided as follows: TIME: Calendar days shall be used in computing time periods. Time is of the essence in this Contract. Other than time for acceptance and Effective Date as set forth in Paragraph 3, any time periods provided for or dates specified in this Contract, whether preprinted, handwritten, typewritten or inserted herein, which shall end or occur on a Saturday, Sunday, or a national legal holiday (see 5 U.S.C. 6103) shall extend to 5.[:]00 p.m. (where the Property is located) of the next business day. Because 20 days from the effective date fell on a Sunday, the Loan Approval Period expired on Monday, March 25, 2019. Paragraph 8(b)(i) of Contract 1 provided that: "Buyer [the Sylvains] shall ... use good faith and diligent effort to obtain approval of a loan meeting the Financing terms ('Loan Approval') and thereafter to close this Contract." Paragraph 8(b)(v) of the Contract further provided that if neither party timely cancelled the Contract pursuant to paragraph 8, the financing contingency would "be deemed waived." Paragraph 8(b)(vii) finally provided that "[i]f Loan Approval has been obtained, or deemed to have been obtained, as provided above, and Buyer fails to close this Contract, then the Deposit shall be paid to Seller … ." The parties agreed to close Contract 1 by April 10, 2019. The Sylvains did not obtain final loan approval ("clear to close") within the Loan Approval Period. The loan was not denied for any of the exceptions set forth in paragraph 8(b)(vii), to release of the escrow deposit to the seller. The Sylvains did not terminate the contract within the Loan Approval Period. After the Loan Approval Period expired, the Sylvains sought to extend Contract 1, without consideration for the extension. The Breaults countered the Sylvains' request to extend with an offer that an extension would be granted for consideration that the Sylvains agree to forfeit the earnest money deposit. The parties never reached an agreement to extend Contract 1 and Contract 1 failed to close. On or about May 2, 2019, the Sylvains's loan application for Contract 1 was denied. On May 8, 2019, the Breaults executed a Release and Cancellation of Contract demanding release of the $10,000.00 escrow deposit on Contract 1, which Respondent received by email on that date from Betty Khan, the sales associate representing the Breaults. The Sylvains also executed a Release and Cancellation of Contract seeking return of the $10,000.00 escrow deposit on Contract 1, which Respondent communicated to Ms. Khan on May 8, 2019. Also, on May 8, 2019, Respondent informed the Sylvains of the Breaults's claim on the earnest money deposit. Despite knowing that there were conflicting demands for the escrowed funds, Respondent failed to inform Mr. Avila, the qualifying broker for GREH at the time, or the Department, of the escrow dispute. The Breaults were never informed of any escrow dispute filed with the Department, were never sued in relation to the escrow deposit, and never went to mediation or arbitration with regard to the escrow deposit, despite making a demand for the escrow deposit. Respondent claimed that he applied the $10,000.00 escrow funds to another contract under which the Sylvains were buyers. Respondent closed the GREH Escrow Account, removing the $10,000.00 from the account, without consent of either the Sylvains or the Breaults. Contract 2 On or about May 2, 2019, an "AS IS" Residential Contract for Sale and Purchase (Contract 2) between the Sylvains, as buyers, and the Mossuccos, as sellers, for property located at 7584 Apache Boulevard, Loxahatchee, Florida 33470 ("Subject Property 2"). Respondent facilitated Contract 2 on behalf of the Sylvains. In relation to Contract 2, specifically paragraph 2(a), which required an earnest money deposit in the amount of $10,000.00, Respondent requested that the Sylvains provide him a check in the amount of $10,000.00 to show the Mossuccos. On or about May 6, 2019, the Sylvains then drew a check from a business account held with TD Bank in the amount of $10,000.00 and payable to Global Business Financial Investment ("TD Bank Check"), which the Sylvains delivered to Respondent. Respondent took a photograph of the check and promised the Sylvains that the check would not be cashed or deposited. On or about May 6, 2019, Miledy Garcia, now known as Miledy Rivas, Respondent's spouse, a Florida licensed real estate sales associate, having been issued license number SL 3383271, issued an escrow deposit receipt for $10,000.00 for Contract 2 on a GREH form ("May 6, 2019, GREH Receipt"). The TD Bank Check was never deposited or cashed by Respondent; rather, the Sylvains immediately issued a stop payment order on the check to TD Bank. Despite having never deposited the TD Bank Check, Respondent communicated the May 6, 2019, GREH Receipt and a photo of the TD Bank Check to Mrs. Mossucco and Ms. Weintraub. The $10,000.00 escrow funds from Contract 1 were the escrow funds represented on Contract 2. Respondent represented that the $10,000.00 escrow funds were applied to Contract 2, prior to cancellation of Contract 1, and continued to represent the same, even after Respondent knew the Breaults were making a claim against the funds. Contract 2 failed to close. After Contract 2 failed to close, the Mossuccos and Sylvains agreed to cancel Contract 2 and release each other from liability under the terms of Contract 2, and further agreed that any earnest money deposit could be returned to the Sylvains. Respondent failed to deliver the escrow funds to the Sylvains. Rather, Respondent believed that the funds belonged to him (or one of his companies) and that he was entitled to remove the escrow funds and use them as he (or his company) saw fit. Respondent testified that he submitted a notice of escrow dispute, dated "9-30-2019," to the Department, identifying the parties to the transaction as the Mossuccos and the Sylvains, and the subject property as 7584 Apache Boulevard, Loxahatchee, Florida 33470. Respondent gave conflicting testimony, including, for example: First testifying that he believed the $10,000.00 escrow funds belonged to him (or his company) to be spent as he saw fit; then, after a break in the proceedings and on re-direct by his counsel, changing his story by saying that counsel for Petitioner put words in his mouth and that he meant only that there was a "dispute on the funds." First testifying that Mr. Avila was a signatory on the GREH "Escrow Account," then admitting that Mr. Avila was not a signatory on the account. There was also conflicting testimony between Respondent and several of the witnesses; however, where there were inconsistencies, Petitioner's witnesses' testimony was substantially consistent and supported by the documentary evidence presented. Parts of Respondent's testimony were inconsistent with documentary evidence admitted into evidence by stipulation of the parties. Facts Concerning Aggravation or Mitigation of Penalties Respondent collected escrow funds and deposited them into an account that he, only a licensed real estate sales associate, controlled, rather than one that was controlled by the qualifying broker for GREH. Respondent admittedly removed escrow funds in the amount of $10,000.00 from the bank account in which they were deposited, without all parties having a claim to the escrow funds executing a release. Respondent testified that he believed the escrow funds belonged to him (or one of his companies) and that he had a right to do with the funds as he (or he through one of his companies) saw fit. Respondent used vulgar language, threats, and demeaning language toward his clients, other real estate professionals, and title agents to attempt to coerce those individuals into submitting to his demands. Respondent failed and refused to comply with the direction of the qualifying broker with supervisory responsibility over Respondent and GREH. Respondent failed to keep the qualifying broker of GREH apprised of the real estate transactions in which Respondent was involved. There was significant testimony establishing that Respondent was performing tasks that are only allowed to be performed by a licensed real estate broker, not a real estate sales associate, mortgage broker, or mortgage loan originator. Additional Facts Raised by Respondent In his proposed conclusions of law, Respondent raises, as a matter of fact, that the "Department failed to plead sufficient facts underpinning its argument" regarding the handling of escrow funds. In paragraph 25 of his Proposed Final Order, Respondent states: Nowhere in the administrative complaint does the Department allege that Mr. Rivas falsely represented that GREH received the TD Bank Check as earnest money for Contract 2, or that he falsely represented to the Sylvains that the Breaults did not have a legitimate claim against the $10,000.00 escrow funds deposited by the Sylvains toward Contract 1, or that he misrepresented to the Sylvains that the $10,000.00 funds from the SunTrust Certified Check could be and were applied to Contract 2. Respondent further argued that none of the "facts relevant to aggravation or mitigation" set forth in the Department's Proposed Final Order were pled in the A.C., in violation of Respondent's due process rights. Both of these arguments are rejected as set forth in paragraphs 108 and109 below. Additional Facts Concerning Department Costs The Department presented competent evidence that it incurred investigative costs in the amount of $1,551.00.
The Issue The issues for determination in this proceeding are whether Respondent violated Sections 475.25(1)(b), (d), and (e), Florida Statutes, 1/ through culpable negligence or breach of trust in a business transaction; by failing to account or deliver trust funds; and by failing to timely notify the Florida Real Estate Commission of a deposit dispute or to implement remedial action; and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate broker under license number 0037920. The last license issued to Respondent was issued as a broker at Heath Realty, 4864 S. Orange Avenue, Orlando, Florida. On May 18, 1993, Mr. Anthony Rodgers and Ms. Jill Rodgers (the "buyers") entered into a contract to purchase real property from Ms. Norma A. Cash (the "seller"). The buyers entrusted Respondent with a total earnest money deposit of $1,000. The transaction failed to close. On July 8, 1993, Respondent timely notified Petitioner in writing that there were conflicting demands for the earnest money deposit and a good faith doubt regarding the deposit. However, Respondent failed to institute one of the settlement procedures described in Section 475.25(1)(d)1. until legal proceedings between the buyer and seller were amicably settled approximately seven months later. Respondent failed to institute a prescribed settlement procedure in a timely manner even though Petitioner advised Respondent in letters dated July 26, 1993, and September 9, 1993, of the action Respondent should take. On February 9, 1994, Respondent finally requested an escrow disbursement order in accordance with Section 475.25(10(d)1. The escrow deposit was paid to the seller pursuant to the agreement of the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 475.25(1)(b), 475.25(1)(d)1., but guilty of violating Section 475.42(1)(e) and Florida Administrative Code Rule 61J2-10.032. It is further recommended that the Final Order place Respondent on probation for a period of one year and, during the period of probation, require Respondent to complete courses in broker management not to exceed eight credit hours. RECOMMENDED this 8th day of February, 1995, in Tallahassee, Florida. DANIEL S. MANRY 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 8th day of February 1995.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. David B.C. Yeomans, Jr., is now and was at all times material hereto a licensed real estate broker having been issued license number 0163386. During times material, Respondent was the qualifying broker for G & A Realty and Investments, Inc., a corporation licensed as a real estate broker in the State of Florida. 1/ From approximately April 1985 to December 1985, Respondent Yeomans was the president and qualifying broker for G & A. Wilfredo Gonzalez, a licensed real estate salesman and Alberto Aranda were each 50 percent shareholders of G & A. Wilfredo Gonzalez, while licensed as a real estate salesman in the employ of G & A, solicited and obtained a client, Alfredo Susi, who made an offer to purchase a commercial property in Dade County, Florida. In connection with the offer, Alfredo Susi entrusted a $10,000 earnest money deposit with Wilfredo Gonzalez to be held in trust in G & A's escrow account. The seller rejected Susi's offer to purchase whereupon Alfredo Susi made demands upon Gonzalez for return of the earnest money deposit. Wilfredo Gonzalez attempted to return the earnest money deposit entrusted by Susi via check dated November 18, 1985 drawn on G & A's escrow account. Upon presentation of the subject check by Susi, it was returned unpaid due to non-sufficient funds. Alfredo Susi has been unable to obtain a refund of the deposit submitted to Gonzalez. Wilfredo Gonzalez used the deposit presented by Susi and did not apprise Respondent Yeomans of what or how he intended to dispose of Susi's deposit. Alfredo Susi had no dealing with Respondent Yeomans and in fact testified and it is found herein, that Susi's dealings in this transaction, were exclusively with Wilfredo Gonzalez. Tony Figueredo, a former salesman with G & A, is familiar with the brokerage acts and services performed by Respondent Yeomans and Wilfredo Gonzalez. During his employment with G & A, Figueredo had no dealing with Respondent Yeonans and in fact gave all escrow monies to Wilfredo Gonzalez. Carolyn Miller, the president and broker for Rite Way, Realtors, an area brokerage entity, is familiar with the customs and practices in the Dade County area brokerage operations. Ms. Miller considered it a broker's responsibility to supervise all salesman and to review escrow deposits and corresponding accounts approximately bimonthly. Theodore J. Pappas, Board Chairman for Keyes Realtors, a major real estate brokerage entity in Dade County, also considered it the broker's responsibility to place escrow accounts into the care and custody of a secretary and not the salesman. Mr. Pappas considered that in order to insure that funds were not misappropriated, checks and balances and intensive training programs would have to be installed to minimize the risk of misappropriation of escrow deposits. Mr. Pappas conceded however that it was difficult to protect against dishonest salesman. Respondent Yeomans has been a salesman for approximately eleven years and during that time, he has been a broker for ten of those eleven years. During approximately mid 1984, Respondent Yeomans entered into a six (6) month agreement with G & A to be the qualifying broker and to attempt to sell a large tract of land listed by Context Realty in Marion County (Ocala). When Respondent agreed to become the qualifying broker for G & A Respondent was a signator to the escrow account for G & A Realty. Sometime subsequent to Respondent qualifying as broker for G & A, Wilfredo Gonzalez changed the escrow account and Respondent Yeomans was unfamiliar with that fact. Respondent Yeomans first became aware of Susi's complaint during late 1985 or early 1986. Respondent Yeomans was not a signator on the escrow account where Wilfredo Gonzalez placed the escrow deposit entrusted by Alfredo Susi. (Petitioner's Exhibit 9) During approximately November, 1986, Respondent Yeomans made it known to the officers at G & A that he was withdrawing his license from G & A and attempted to get G & A's officers to effect the change. When this did not occur by December, 1986, Respondent Yeomans effectuated the change himself and terminated his affiliation with G & A. During the time when Respondent was the qualifying agent for G & A, there were approximately four employees and little activity to review in the way of overseeing real estate salespersons. During this period, Respondent Yeomans reviewed the escrow account for G & A that he was aware of. During the time that Respondent Yeomans was qualifying broker for G & A, he was primarily involved in the undeveloped acreage owned by Context Realty and other REO listed property of G & A. During the period when Respondent Yeomans was qualifying agent for G & A, Wilfredo Gonzalez spent approximately 95 percent of his time managing rental property that he (Gonzalez) owned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of June, 1987 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1987.
The Issue The issue in this case is whether Respondents are guilty of violating Section 475.25(1)(b) and, if so, what penalty should be imposed.
Findings Of Fact Respondent Galdo has been a licensed real estate broker for eight years and holds license number 0414542. At all material times, he served as president of Respondent Real Estate Support and Development Corporation, which is registered as a real estate broker and holds license number 0243131. All references below to "Respondent" are to Respondent Galdo only. By Contract for Sale and Purchase executed by both parties on December 5, 1989, Respondent, as trustee, agreed to sell to Ruben P. Chalarca a parcel located at 12 Sandalwood Court, Oviedo, Florida. The contract calls for a closing on or before December 28, 1989. The purchase price disclosed on the contract is "approx. 46,300.00 1000.00 cash to Mortgagee." According to the contract, payment was to include the buyer taking subject to and assuming a mortgage held by "Central Fed Mortgage Co." in the approximate principal amount of $45,300. The contract contains no information as to a brokerage commission. Blanks on the form contract concerning a commission are filled in "N/A." The only involvement of Respondent Real Estate Support and Development Corporation appears to be that Respondent provided Mr. Chalarca a business card bearing the name of Respondent, the name of Respondent Real Estate Support and Development Corporation, the company's address, and telephone numbers for Respondent and the company. However, the evidence does not establish that Respondent gave the business card to Mr. Chalarca for any purpose other than giving him the information necessary to contact Respondent. There is no evidence that Respondent held himself out as representing Real Estate Support and Development Corporation in his dealings with Mr. Chalarca. The $1000 earnest money deposit that Mr. Chalarca "paid" to Respondent was by a check that never cleared. Mr. Chalarca gave another check payable to Respondent individually. The second check was dated December 5, 1989, but was only in the amount of $400. There is another check dated December 5 payable to cash and in the amount of $150, but the record does not establish that the Chalarcas gave this sum to Respondent. Except for the $1000 earnest money check, all of the Chalarcas' checks cleared. The closing took place and Respondent Galdo, as trustee, conveyed the property by deed to Mr. Chalarca and possibly his wife. Mr. and Mrs. Chalarca are from Columbia, South America. Neither has had any significant real estate experience prior to the subject transaction with Respondent. Although Mr. Chalarca speaks and understands English reasonably well, his wife does not. Mr. Chalarca did not complete high school. Prior to or at the closing, Respondent told Mr. Chalarca to make the mortgage payments to Respondent, who would make arrangements with the mortgagee, evidently to show that the Chalarcas would be making the mortgage payments. It appear that the mortgage payments may not have been current when the Chalarcas purchased the property. Respondent admitted to Petitioner's investigator that he sent the November and December, 1989, payments to the mortgagee in January, 1990, together with a request that the mortgage be transferred to the Chalarcas. He also admitted that the bank returned the package with a demand for the January, 1990, payment. Upon receipt of the demand from the bank, Respondent told the Chalarcas that they must make the January, 1990, payment at that time. However, the record establishes that the Chalarcas gave Respondent only two checks after the closing. The first is dated April 17, 1990, and in the amount of $1600. The second check is dated May 21, 1990, and in the amount of $1000. The record does not clearly establish whether Respondent ultimately made the November and December, 1990, payments. The record clearly establishes that no one made the January, February, and March payments, although there is no evidence that the Chalarcas ever tendered these payments to Respondent. For reasons not apparent from the record, Mr. Chalarca decided to make the April, 1990, payment directly to the mortgagee. This check is dated April 7, 1990, in the amount of $1220, and payable to Transohio Savings. However, the mortgagee returned the check by letter dated May 29, 1990, because the loan was already in foreclosure. The letter gave Mr. Chalarca an address to contact "in order to stop the action." Most important, the record establishes that Respondent retained the $2600 paid to him by the April and May, 1990, checks, and the record does not establish any justification for the retention of this money by Respondent. There is no indication in the record that Respondent applied this money on behalf of the Chalarcas. To the contrary, there is some indication that no payments were made on the mortgage after late 1989. By Summary Final Judgment of Foreclosure entered November 6, 1990, Transohio Savings Bank, F.S.B. obtained a foreclosure judgment on the subject mortgage against Mr. Chalarca and his wife for the total sum of $52,613.74. The foreclosure judgment shows interest on the principal balance of $5649.24 through September 23, 1990, with an additional $15.78 per day interest from September 24, 1990, through the date of entry of the judgment. The assumed interest rate was not the statutory interest rate, which is expressly imposed upon the total due, starting from the date of the judgment. If the daily interest under the foreclosed mortgage were $15.78 daily, then unpaid interest of $5649.24 represents 358 days' interest, which would suggest that no interest payments were made after September or October, 1989. The foreclosure judgment ordered the clerk to sell the property on December 20, 1990. The Chalarcas remained in the 12 Sandalwood Court parcel until about the time of the sale.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Real Estate Support and Development Corporation, finding Roger Galdo guilty of violating Section 475.25(1)(b), suspending his license for six months, placing him on probation for 18 months following the end of the suspension, and imposing upon him an administrative fine of $1000. ENTERED this 9th day of September, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-4449 Treatment of Proposed Findings of Petitioner 1-3: adopted. 4: rejected as irrelevant. 5: adopted. 6: adopted except that the $1000 check was dishonored. 7: adopted. 8: rejected as unsupported by the appropriate weight of the evidence. All of the checks that the Chalarcas gave Respondent have been identified in the recommended order., which also identifies when these checks were delivered to Respondent. The evidence does not establish by the requisite standard that the Chalarcas gave Respondent the mortgage payments each month when they were due, or even that they gave Respondent funds sufficient to make the mortgage payments that fell due following the closing. 9: adopted except as the characterization of Mr. Chalarca as "suspicious." The characterization is rejected as unsupported by the appropriate standard of evidence. 10: adopted. 11: rejected as unsupported by the appropriate weight of the evidence. The record does not establish Mr. Chalarca's motivation for giving Respondent the two checks totalling $2600. 12: adopted, although a substantial amount of time elapsed between the service of the foreclosure summons and the departure of the Chalarcas from the mortgaged property. 13: adopted. 14: rejected as unsupported by the appropriate weight of the evidence. 15-19: rejected as recitation of evidence. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Attorney Janine B. Myrick Division of Real Estate Legal Section P.O. Box 1900 Orlando, FL 32802-1900 Roger Galdo 208 Madeira Avenue Orlando, FL 32825 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether respondent committed the acts alleged in the Administrative Complaint, and, if so, whether respondent's license should be revoked, suspended or otherwise disciplined.
Findings Of Fact At all times pertinent to the charges, Reynold Diaz was a licensed real estate broker in the State of Florida, having license number 0379909. The respondent was registered under the trade name of "Progressive Developers" from August 20, 1983 to July 25, 1986. Respondent, in his capacity as a real estate broker, managed four rental units owned by John H. Stephen located at 3405-3407 Nebraska Avenue, Tampa, Florida. Mr. Stephen initially met Mr. Diaz when Mr. Stephen purchased the rental properties from him in 1984, and Mr. Stephen retained respondent to manage the properties at a fee of ten percent of the monies collected. At the end of April, 1985, respondent rented one of the units owned by Mr. Stephen to Ms. Roslyn Thompson. During the course of Ms. Thompson's tenancy, the respondent received from Ms. Thompson a total of $630.00, which represented two months rent and a security deposit of $180.00. None of this money was returned to Ms. Thompson and none of it was delivered to Mr. Stephen by respondent. When Mr. Stephen inquired about the rental money from the unit, in June or July of 1985, Mr. Diaz advised Mr. Stephen that the tenant had not paid her rent for a couple of months. Thereafter, Mr. Stephen went to the rental unit to talk to Ms. Thompson about her payments. Ms. Thompson advised Mr. Stephen that she had paid her rent and produced receipts for the $630.00 which she had paid to respondent. Mr. Stephen terminated respondent's services in June of 1985. In September of 1985 Mr. Stephen met with Mr. Diaz in an attempt to obtain an accounting of the monies received by respondent from Mr. Stephen's tenants. Although respondent had provided monthly statements and payments to Mr. Stephen throughout 1984, respondent stopped providing statements in 1985. Thus, Mr. Stephen had not received a statement in April, May, or June of 1985. When Mr. Stephen met with respondent in September, respondent failed to provide a full accounting of the money he had received from Mr. Stephen's tenants and failed to deliver the money he had received. However, subsequent to the meeting, Mr. Stephen did receive from respondent the amount he was owed on two of the rental units. However, respondent failed to deliver the money he had received from Ms. Thompson. Respondent contends that of the $630.00 he received from Ms. Thompson, he paid Mr. Stephen $225.00 in September and then paid the $405.00 balance in two installments. However, the evidence does not support this contention, and I accept Mr. Stephen's testimony that he never received any rent payments on the Thompson unit. Further, although the evidence does show that respondent paid Mr. Stephen $405.00 in two checks, these payments were for the money owed on the other rental units. Mr. Diaz has failed to account for or deliver to Mr. Stephen the $630.00 received from Ms. Thompson. Respondent, in his capacity as a real estate broker, also managed rental property owned by Sandra K. Nelson located at 1208 East Chelsea Street, Tampa, Florida. Ms. Nelson first met Mr. Diaz when she purchased the rental property, and she retained respondent to manage the property at a fee of ten percent of the monies collected. In August of 1984, the respondent rented the Nelson property to Joseph Ira Pasco. At the time of renting the unit, the respondent received from Mr. Pasco a security deposit of $325.00. However, Mr. Diaz advised Ms. Nelson that Mr. Pasco had not paid his security deposit, and withheld $275.00 from a rental payment to hold as a security deposit. Subsequently, after Ms. Nelson started eviction proceedings, she discovered that Mr. Pasco had a receipt signed by Mr. Diaz for a $325.00 security deposit. However, despite Ms. Nelson's demands, the respondent failed to deliver to Ms. Nelson the $325.00 security deposit or any portion thereof. Further, the security deposit was not returned to Mr. Pasco. However, respondent did ultimately deliver to Ms. Nelson the $275.00 that he had retained from the rental payment. Respondent maintained an escrow account at the Hay Gulf Federal Credit Union from August 8, 1984 until November 26, 1984, when the account was closed. When petitioner's investigator, Leo Huddleston, requested of the respondent all documentation associated with the Stephen and Nelson transactions, respondent produced the carbon copies of three deposit slips and twenty checks drawn on the Bay Gulf account. The documents covered only the months of September and October of 1984, and none of the documents appear to be connected to the Stephen and Nelson transactions. The respondent failed to produce his real estate brokerage escrow account statements, his business records, leases, contracts or other documentation required to be kept by the respondent and produced to the petitioner upon request. At no time did respondent place or maintain the $325.00 security deposit on the Nelson property in an escrow or trust account. Further, since respondent's escrow account was closed at the times respondent collected the rent money and deposit from Ms. Thompson, it is apparent that none of the $630.00 was placed in an escrow or trust account. Respondent admitted that he did not properly handle the funds received from the Nelson and Stephen properties, stating that he managed the properties on the basis of friendship rather than a professional basis. However, he did admit retaining ten percent of all the money collected. From August 20, 1983, until July 25, 1986, the respondent was registered with the Real Estate Commission under the trade name "Progressive Developers." However, at various times during this period, the respondent transacted business both as "Progressive Real Estate Developers" and "Progressive Real Estate Developers, Inc." These names were not registered with the Real Estate Commission.
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 suspending respondent's license for a period of two (2) years and imposing an administrative fine of $1,150 to be assessed as follows: Counts I and VI, $200 for each count; Counts II and VII, $200 for each count; Counts III and VIII, $100 for each count; Count IV, $100; and Count V, $50. Respectfully submitted and entered this 9th day of March, 1987, in Tallahassee, Florida. DIANE A. GRUBBS 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 9th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3775 Petitioner's Proposed Findings of Fact: Accepted in paragraph 1. Accepted in paragraph 2. Accepted in paragraph 3. Accepted in paragraphs 5 and 6. Accepted in paragraph 7. 6-7. Accepted in paragraph 8. Accepted generally in paragraphs 6 and 8. Accepted in paragraph 10. Accepted in paragraph 9. Accepted in paragraph 11. Respondent's Proposed Findings of Fact: Accepted that respondent managed Mr. Stephen's property. Second sentence rejected as irrelevant; further, the evidence established that Mr. Stephen first met Mr. Diaz when Mr. Stephen purchased the subject property from Mr. Diaz and retained him to manage it. Third sentence accepted in paragraph 10. Fourth sentence rejected as to the money received from Ms. Thompson, but accepted that money was delivered to Mr. Stephen in paragraph 6. Last sentence rejected as not a finding of fact. Accepted that $275 was paid to Ms. Nelson in paragraph 8; however, reject by contrary finding that the $275 payment was partial payment on the $325 security deposit. Reject, for lack of any evidence that improper name registration was computer error. Remainder rejected as not findings of fact. COPIES FURNISHED: James R. Mitchell, Esquire Harold Huff, Executive DPR - Division of Real Estate Director 400 West Robinson Street DPR - Division of Real Estate Orlando, Florida 32802 400 West Robinson Street Orlando, Florida 32802 Reynold Diaz 7908 N. Florida Avenue Tampa, Florida 33604
Findings Of Fact Petitioner is the state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Section 20.30, Florida Statutes, Chapters 120, 455 and 475, and the rules promulgated pursuant thereto. Respondent is a licensed real estate broker in the State of Florida having been issued license numbers 0487611 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was issued as t/a First Capital Realty & Investments, 3510 Biscayne Boulevard, Miami, Florida 33137. Hector F. Sehwerert, Petitioner's Investigator, conducted an office inspection and audit of Respondent's office and escrow accounts on or about November 19, 1990. The investigation disclosed that Respondent failed to maintain escrow reconciliation statements required by applicable law. Respondent commingled the escrow funds with his personal funds. On or about October 1, 1990, and November 3, 1990, Respondent received two earnest money deposits from purchasers of HUD properties in the respective amounts of $2,000.00 and $1,615.00. Respondent deposited the earnest money in the aggregate amount of $3,615.00 into his personal account number #012153441 maintained at Southeast Bank, N.A., which contained $11,926.49 in personal funds. Respondent has subsequently changed banks and has now opened an escrow account in accordance with applicable statutes and rules. Respondent failed to display the required office entrance sign on or about the entrance to his real estate office. The Respondent had moved his office some 30 days prior to the office inspection and the sign he had maintained at his previous office had not yet been moved. The sign had been moved and was displayed in front of Respondent's new office location at the time of the formal hearing.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a Final Order be issued and filed by the Florida Real Estate Commission finding the Respondent: Guilty of the allegations in the Administrative Complaint; Placing Respondent's real estate broker certifications, licenses, permits and registrations on probation for a period of one (1) year; and During such probationary period, requiring Respondent to provide copies of monthly escrow account statement/reconcilia- tions to: James H. Gillis, Senior Attorney, Division of Real Estate, Legal Section, 400 West Robinson Street, Orlando, Florida 32801-1772. Additional terms of the probationary period, including broker education, shall be determined by the Florida Real Estate Commission; provided that such probationary terms shall not require Respondent to retake any state licensure examination as a result of these proceedings or the resulting administrative action. In accord with Florida Administrative Code Rule 21V-24.001(2)(a), it is further recommended that, as a part of the probationary conditions, Respondent appear before the Commission at the last meeting of the Commission preceding termination of probation. DONE and ENTERED this 15th day of July, 1991, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 16th day of July, 1991.
Findings Of Fact At all times pertinent to the charges, Respondent was a licensed real estate salesman and broker-salesman, license number 0326235. In 1983, Dorothy Nutt and Diane Falstad were the owners of a house located at 608 Hillcrest Street, Orlando, Florida. In December of 1983, Ms. Nutt and Ms. Falstad placed this house for sale with real estate broker Frank Daley. The listing was an exclusive listing except as to the Respondent and another individual, for which no commission would be paid, if a contract submitted by the Respondent was accepted by Nutt and Falstad prior to December 26, 1983. On December 25, 1983, the Respondent, along with his parents, Barbara Okoniewski and Louis Okoniewski, Jr., submitted a written contract to Diane Falstad and Dorothy Nutt for the purchase of the 608 Hillcrest Street property. The contract was accepted by the sellers on December 26, 1983. The contract, as executed by the Respondent and his parents, specified that a $1,000 deposit was to be held in escrow by "Closing Agents." Additionally, Respondent represented to Ms. Falstad that the $1,000 deposit was being maintained in an escrow account. Pursuant to the terms of the contract, Respondent applied for a V.A. mortgage loan, but was later determined to be ineligible. Subsequent thereto, on or about February 8, 1984, application was made with Residential Financial Corporation (RFC), to obtain financing to purchase the 608 Hillcrest Street property. The application was in the name of the Respondent's parents, with Respondent handling the matter on their behalf. Thereafter, the Respondent requested that the loan officer (Charlyne Becker) at RFC not submit the loan application for approval to the underwriters. Pursuant to his request, the application was not submitted for approval. The transaction did not close. Subsequent to the scheduled date of closing both Ms. Falstad and Ms. Nutt made demands of the Respondent for forfeiture of the $1,000 deposit, due to their belief that, he had breached the contract by failing to secure financing. It was not until after the scheduled closing date that the sellers learned the $1,000 was not in escro. To date, Respondent has neither deposited the $1,000 in any trust account nor paid any money to the sellers. Respondent admits through his own testimony, that he did not make the deposit, nor was the deposit placed in any escrow account by his parents. Respondent's testimony, which was not rebutted, established that he and his parents sought to purchase the 608 Hillcrest Street property and that adjacent to it for rental purposes. However, they were advised by the RFC loan officer (Charlyne Becker) that the applications were not likely to be approved by RFC. Respondent did not thereafter pursue any of the loan applications.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order fining Respondent $500. DONE and ENTERED this 12th day of July, 1985 in Tallahassee, Florida. R. T. CARPENTER, 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 12th day of July, 1985. COPIES FURNISHED: James R. Mitchell, Esq. Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Louis S. Okoniewski 730 Lake View Avenue, N.E. Atlanta, Georgia 30308 Harold Huff. Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================ =
