The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, a licensed real estate broker in the State of Florida holding license number 0005609. She is 72 years of age. The money she earns as a real estate broker helps to supplement her retirement income. In the almost 40 years that she has been broker, the only complaint that has been made against her in connection with the practice of her profession is the complaint that is the subject of the instant case. Peter Rettig is a longtime acquaintance of Respondent's. He too is a Florida real estate broker. Rettig is the operating and qualifying broker for La Costa Real Estate, Inc. In September of 1993, as a favor to Rettig, Respondent agreed to act, without compensation, as Rettig's escrow agent. Thereafter, Rettig deposited trust funds received from his buyer/clients in the "Mary A. Belotto Escrow Account" (account number 3431110272) that Respondent had established at Barnett Bank. On various occasions from September of 1993, to July of 1994, Respondent, unthinkingly, appropriated a portion of these funds for her own personal use, but acted swiftly to replace the appropriated funds with her own personal funds. As a result, no one was actually harmed by her actions. During this period of time, Respondent was suffering from severe emotional distress and a resulting inability to think clearly due to the death of her husband and the subsequent death of a close friend who had provided her with needed assistance and support following her husband's death. On January 18, 1995, Edward Gruskin, an investigator with the Department, conducted an office inspection/audit of La Costa Real Estate, Inc. and the "Mary A. Belotto Escrow Account." The inspection/audit revealed that Respondent had engaged in the conduct previously described in Finding of Fact 11 of this Recommended Order and that, in addition, she had failed to prepare and sign monthly reconciliation statements for her escrow account. Respondent now realizes that she erred in engaging in such conduct and in failing to prepare and sign these reports. She has apologized for making these errors and has promised, with apparent sincerity, not to repeat them in the future.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint and fining her $250.00, issuing her a reprimand, and placing her on probation for a period of three years for having committed these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of September, 1995. STUART M. LERNER 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 14th day of September, 1995. APPENDIX TO RECOMMENDED ORDER The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties in their proposed recommended orders: The Department's Proposed Findings 1-2. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. 3. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 4-5. Accepted and incorporated in substance, except for 5c. and 5d., which have not been incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer. Respondent's Proposed Findings First unnumbered paragraph: To the extent that this proposed finding states that Respondent is 72 years of age and has been a real estate broker in the State of Florida for almost 40 years, it has been accepted and incorporated in substance. Second unnumbered paragraph: Accepted and incorporated in substance. Third unnumbered paragraph: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Fourth and fifth unnumbered paragraphs: Accepted and incorporated in substance. Sixth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of argument than a finding of fact. Seventh unnumbered paragraph- First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of argument than a finding of fact. COPIES FURNISHED: Daniel Villazon, Esquire Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mary A. Belotto 1571 Southeast 23rd Avenue Pompano Beach, Florida 33062 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is qualified for licensure as a real estate salesperson.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is fifty-two years of age. He became licensed as a real estate salesperson in the State of Florida in 1981, after returning to the state (where he was born and raised) from New Jersey. The following year he obtained a license that allowed him to operate as a real estate broker in Florida. In or about 1984, Petitioner formed Landmark Realty, Inc. (Landmark), which operated in Broward County, Florida, as a Century 21 franchise. On or about June 29, 1989, in DPR Case Nos. 0163964 and 0164128, the Department of Professional Regulation, Division of Real Estate, issued an Administrative Complaint against Petitioner and Landmark containing the following allegations: Petitioner is a 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, in particular Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0344112 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker c/o Landmark Realty, Inc., 1860 N. Pine Island Road, Plantation, Florida 33322. Respondent Landmark Realty, Inc., is now and was at all times material hereto a corporation licensed as a real estate broker in the State of Florida having been issued license number 0239155 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 1860 N. Pine Island Road, Plantation, Florida 33322. COUNT I The Department of Professional Regulation conducted a routine office inspection/escrow account audit of Respondents' escrow accounts between June 15, 1989 and June 16, 1989. Respondents' escrow account number 55322000377 is held at First Union National Bank of Florida. Respondents' escrow account number 55322000377 had a balance of $1,368.36 on June 16, 1989. The pending sales files revealed that the escrow monies balance should have been $65,250 on June 16, 1989. The escrow account had a shortage of $63,881.64. . . . Respondent Caprio claims he transferred $80,700 from Respondents' escrow account number 55322000377 to the Keys & Keys trust account number 0304301543 on the advice of counsel. . . . Kathy Clements, Operations Officer for County National Bank of South Florida furnished a written letter that the Keys & Keys trust account number 0304301543, had a current balance of $101,901.43 on June 20, 1989. . . . The Respondents failed to furnish any validated documents detailing the dates and amounts of deposits into the aforementioned Keys & Keys trust account from the aforementioned Respondents' escrow account. The Respondents' escrow account number 55322000377 is a commercial money market investment account with the interest going to Landmark Realty, Inc., without the consent or prior knowledge of all parties. . . . The Respondents failed to timely notify the Florida Real Estate Commission of conflicting demands on the earnest money deposit on the contract, dated July 17, 1988, between David B. Perry, as seller, and Earle A. and Yvonne M. Levy, as buyers. The buyers entrusted an earnest money deposit of $1,000 with the Respondents on or about July 17, 1988, and an additional earnest money deposit of $20,000 was entrusted to the Respondents on or about August 22, 1988. The Respondents received a demand letter f[rom] the buyers on December 13, 1988 and a demand letter from the seller's attorney on February 21, 1989. . . . On or about April 19, 1989, the Respondents received or should have received a total earnest money deposit of $4,000 from Perry Silver, as buyer, and Charles Hennessey, as seller. The audit revealed no proof that the additional deposit of $2,000 as required by the contract dated April 19, 1989 was received by the Respondents. . . . The Respondents failed to timely notify the Florida Real Estate Commission of conflicting demands on the earnest money deposit on the contract, dated May 31, 1989, between C. McCanes and J. Steele, as sellers, and Jacqueline W. Mayers, as buyer. The buyer entrusted an earnest money deposit of $1,000 with the Respondents on or about May 31, 1989. The additional deposit of $4,000 as called for in the contract was never received by the Respondents. On June 1, 1989, the buyers made a demand on the earnest money deposit and on June 6, 1989 the seller made a demand for the earnest money deposit. . . . The Respondents, on or about May 16, 1989, did unlawfully disburse check number 0963 from the Respondents' escrow account number 55322000377 to the Respondents' operating account to cover office expenses. The Administrative Complaint further alleged that, "[b]ased upon the foregoing," Petitioner and Landmark were guilty of "fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes"; "having failed to account and deliver a deposit in violation of Subsection 475.25(1)(d), Florida Statutes"; "having failed to maintain trust funds in [their] real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized in violation of Subsection 475.25(1)(k), Florida Statutes"; and "having failed to notify the Florida Real Estate Commission upon receiving conflicting demands or having a good faith doubt as to who is entitled to an earnest money deposit according to Rule 21V-10.032, Florida Administrative Code and therefore in violation of Subsection 475.25(1)(e), Florida Statutes." Petitioner had never before had a complaint filed against him. On December 21, 1989, the Florida Real Estate Commission issued a Final Order in DPR Case Nos. 0163964 and 0164128 finding Petitioner guilty of the violations alleged in the Administrative Complaint and revoking his license, notwithstanding his unblemished disciplinary record. The Final Order read, in pertinent part, as follows: On December 5, 1989, the Florida Real Estate Commission heard this case to issue a Final Order. On or about June 29, 1989, an Administrative Complaint was filed against Respondents. The Respondents admitted the allegations of fact. . . . The Respondents were properly served with the Notice of Hearing, appeared and presented matters in mitigation. Based upon the allegations of fact and upon the information provided to the Commission at its meeting of December 5, 1989, the Commission finds the Respondents guilty of violating s.475.25(1)(b), 475.25(1)(d), 475.25(1)(e), and 475(1)(k), Florida Statutes, and Rule 21V-10.032, Florida Administrative Code, as charged in the Administrative Complaint. Therefore, the Commission ORDERS that the license of Respondent Philip Caprio be revoked. The Commission further ORDERS that Respondent Landmark Realty Inc. be reprimanded and that said Respondent pay an administrative fine of $1000.00 within 30 days of the date of this Order. Petitioner did not appeal the Final Order. Following the issuance of the Final Order, reimbursement was made to the victims of the violations of which Petitioner and Landmark had been found guilty. The loss of Petitioner's real estate license has adversely affected his ability to make a living and support his family. Petitioner is married to Teresa Caprio. He and Teresa have a twenty-five year old disabled daughter, who requires assistance in performing the normal activities of daily living. Before the revocation of Petitioner's license, the Caprios' daughter lived at home with them. Teresa was able to stay at home and care full-time for her daughter. After Petitioner's license was revoked, however, she no longer was able to do so, inasmuch as she needed to work outside the home to supplement the family income. The Caprios therefore had to place their daughter in a group home. Although Petitioner has not been able to earn nearly as much as he did when he had his real estate license, he has been gainfully employed since the revocation of his license. From 1989 to 1995, he worked for Potamkin Toyota (Potamkin), an automobile dealership. He started as a salesman at Potamkin. After approximately six months at the dealership, he was promoted to customer relations manager/weekend sales manager. He left the employ of Potamkin in 1995, following a change in management at the dealership. Petitioner is now, and has been since July of 1995, employed by Central Florida Investments, Inc., d/b/a Westgate Miami Beach (Westgate), a seller of timeshare plans. He currently is a salaried employee occupying the position of finance manager, a position to which he was promoted after his first six months with the company. He will be unable to advance further in the company if he does not obtain a Florida real estate license. In his position as finance manager, Petitioner takes deposits made by purchasers and prospective purchasers2 and delivers them to Westgate's contract office, which is approximately 20 feet from his office. Using hidden security cameras, Westgate management closely monitors the workplace activities of Petitioner and his coworkers. Petitioner has performed his job duties in a manner that has impressed Westgate management. He has proven to be a competent, reliable, responsible, honest, and trustworthy employee.3 Petitioner is involved in community activities. He and his wife volunteer their time to operate the Rainbow Foundation, a non-profit organization that they formed two years ago to promote the growth of residential facilities for the developmentally disabled in the South Florida area. It appears that since the revocation of his real estate license, Petitioner has rehabilitated himself and that therefore it is not likely that his relicensure would endanger the public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Petitioner is qualified to practice as a real estate salesperson. DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the law of the State of Florida, in particular, Section 20.30, Florida Statutes, and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. The Respondent Gustavo Mejido is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0059653 in accordance with Chapter 475, Florida Statutes. The last license issued said Respondent as a broker was for the address of the offices of G.M. Realty, Inc. Respondent, G.M. 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 0208962 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 715 S.W. 73rd Avenue, Miami, Florida. Respondent Gustavo Mejido was at all times pertinent hereto the qualifying broker for Respondent G.M. Realty, Inc. On August 30, 1990, Hector Sehwerert, an investigator employed by Petitioner, conducted an office inspection and audit of the office account and of the escrow/trust account maintained by Respondents. The audit reflected that there was a shortage in the escrow/trust account in the amount of $1,006.68. Respondents' sales escrow/trust liability was $88,220.00 while the balance of the escrow/trust account was $87,213.32. Respondents were unable to immediately explain the cause of the shortage, but on the same day the shortage was detected, Respondent Mejido caused the shortage in the escrow/trust account to be corrected. He caused the sum of $1,006.68 to be transferred from Respondent G.M. Realty's operating account to its escrow/trust account. The undisputed testimony at the formal hearing was that the discrepancy was caused by a clerical mistake. Respondents failed to reconcile its escrow/trust account for the month of July 1990, and for subsequent months as required by the rules of the Florida Real Estate Commission. While Respondents had utilized its own system of reconciling its books for 14 years without having any other difficulty, this system was defective because the reconciliation did not include a determination of the total amount of escrow liability. Respondents have agreed to use the reconciliation method recommended by the Petitioner in the future. The licenses of Respondents have not been previously disciplined.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which finds that Respondents have violated the provisions of Section 475.25(1)(e) and (k), Florida Statutes, and which issues a letter of reprimand to said Respondents for such violations. RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of May, 1991. 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 16th day of May, 1991. COPIES FURNISHED: Steven W. Johnson, Esquire Florida Department of Professional Regulation Real Estate - Legal Section Hurston Building - North Tower Suite N-308 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Armando E. Lacasa, Esquire 3191 Coral Way Third Floor Miami, Florida 33145 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 91-0376 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-6a. are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6b. are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 7 are rejected as being contrary to the finding that the month audited was July 1990, not August 1990. The remaining proposed findings are rejected as being the recitation of testimony or as being subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact submitted by Respondents are adopted in material part by the Recommended Order.
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
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
The Issue The ultimate issue for determination at the formal hearing was whether disciplinary action should be taken against Respondent's real estate broker's license for failing to obey a lawful order of the Florida Real Estate Commission.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida. A Final Judgment was entered against Richard B. Abel, P.A., in the case of Mark Freeman v. Richard B. Abel, P.A., Case No 85-5678CA-JRT, on August 17, 1986, in the Circuit Court of the Twentieth Judicial Circuit, Lee County, Florida. The Final Judgment was for an amount of $6,839 representing real estate commissions owed by Richard B. Abel, P.A. to Mark Freeman, plus interest and attorney's fees. A two count Administrative Complaint was filed by the Florida Department of Professional Regulation, Division of Real Estate, against Respondent on June 27, 1988. The Complaint alleged inter alia that Respondent: (a) failed to satisfy a Final Judgment in Circuit Court for the payment of a real estate commission; and (b) failed to maintain trust funds in his real estate brokerage trust account or some other proper depository until disbursement in violation of Section 475.25(1)(d), (k), Florida Statutes. A Final Order was entered by the Florida Real Estate Commission (the "Commission") on December 6, 1988, accepting a Stipulation between Respondent and the Commission in settlement of the Administrative Complaint filed on June 27, 1988 (the "Final Order"). The terms of the Final Order provided that: Richard B. Abel, P.A., was reprimanded for failing to pay the Final Judgment entered against it in Circuit Court and was required to pay the amount due Mark Freeman within 45 days from the entry of the Final Order; Respondent, in his individual capacity, personally guaranteed the amount owed by Richard B. Abel, P.A., to Mark Freeman, and further agreed not to violate any provision of Chapters 455 and 475, Florida Statutes; and Respondent waived his right to contest the validity and enforcement of either the Final Order or Stipulation accepted in the Final Order. Neither Richard B. Abel, P.A., nor Respondent has paid the sums due pursuant to the terms of the Final Order entered by the Commission on December 6, 1988. The evidence submitted by Petitioner was uncontroverted. Respondent admitted that he placed the monies owed by Richard B. Abel, P.A., to Mark Freeman in the escrow account of Richard B. Abel, P.A., and disbursed the funds to himself, the sole owner, operator, director and officer. Respondent stated that he fully intended to pay Mr. Freeman when Respondent was able to do so. Respondent's sole defense was that the original debt was that of a corporation rather than a personal debt of Respondent. Respondent is in violation of the Final Order of the Comission entered on December 6, 1988.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of failing to obey a lawful order of the Florida Real Estate Commission in violation of Section 475.25(1)(e), Florida Statutes, fined $1,000, and placed on probation for a period not to exceed 5 years. The conditions of probation may include any of those prescribe in Florida Administrative Code Rule 21V-24.001(2)(a) except those prescribing re-examination or being placed on broker-salesman status. In the event Respondent fails to pay in full any fine imposed on Respondent or to complete the terms of any probation imposed on Respondent, it is recommended that Respondent's license be suspended for 8 years. DONE and ENTERED this 4th day of December, 1989, 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 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3727 Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Respondent did not submit proposed findings of fact. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Included in Finding 1 Included in Finding 2 Included in Finding 4 Included in Finding 5 5-6 Included in Finding 6 7-8 Included in Finding 7 9 Included in Finding 9 COPIES FURNISHED: James H. Gillis, Esquire Departmen of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Mr. Richard B. Abel 2478 Inagua Avenue Miami, Florida 33133
Findings Of Fact Petitioner is a 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, in particular Section 20.30, F.S., Chapters 120, 455, and 475, F.S., and the rules promulgated pursuant thereto. Respondent Charles B. Harvey, Jr. is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0474466 in accordance with Chapter 475, F.S. The last license issued was as a broker t/a Commercial & Investment Realty, 1116D Thomasville Road, P. O. Box 785, Tallahassee, Florida 32317. On or about April 17, 1992, Petitioner's Investigator Juanita Waller conducted a routine office/inspection audit of Respondent at 1116D Thomasville Road, Tallahassee, Florida and discovered that Respondent's trust account #077780-00242743 had an approximate shortage of $3,343.07, calculated as $29,205.00 in total trust liability but only $25,861.93 as reconciled bank balance. Thereafter, the Respondent wrote Investigator Waller and provided evidence that a portion of the missing funds was caused by an $875 "bad check" which had been deposited into his escrow account. Additionally, Investigator Waller found that Respondent failed to properly reconcile his escrow account by comparing the total trust liability with the reconciled bank balance of the trust account, as required by the rules of the Commission. Rather, he had been balancing his checkbook only. Respondent has been completely cooperative with Petitioner agency and upon notification of his errors and omissions immediately began the process of correcting the procedures used in reconciling his escrow account in accord with the requirements of the agency. He also immediately made restitution from his own monies to his escrow account as soon as he was made aware what had happened. It is noted that reconciliation of monthly written statements were not required by the agency until shortly before Respondent was investigated, however he had a duty to apprise himself of all statutes and rules and to govern himself accordingly. Likewise, he accepted "full responsibility" for allowing funds from individual clients' accounts to be used to pay for expenses incurred by other clients' properties, and has taken steps to prevent such occurrences in the future. No loss has been incurred by any party. Respondent has made good any payments owed.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a Final Order be issued and filed by the Florida Real Estate Commission finding the Respondents not guilty of breach of trust but guilty of culpable negligence as charged in Count I of the Administrative Complaint, guilty of having failed to maintain trust funds in escrow as charged in Count II of the Administrative Complaint, and guilty of having failed to properly reconcile his escrow account as charged in County III of the Administrative Complaint and further ordering that all the Respondent's licenses, registrations, certificates and permits be reprimanded and placed on probation for a period of one year and Respondent be required to pay an administrative fine of $300 (total) within sixty (60) days of the entry of the Final Order and that before the end of the probationary period he successfully complete and provide satisfactory evidence to the Florida Real Estate Commission of having successfully completed the thirty (30) hour Brokerage Management course, these education hours to be in addition to any other professional education required by the Respondent by the licensing provisions of this state, and further providing that if all these requirements not be successfully fulfilled as required by the Final Order, then all the Respondent's licenses, registrations, certificates and permits shall be suspended until all such requirements are completed but in no event shall such suspension exceed ten (10) years. RECOMMENDED this 12th day of January, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 12th day of January, 1993. APPENDIX TO RECOMMENDED ORDER 92-6154 DOAH CASE NO. 92-6154 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1-5 Accepted. 6 Accepted as modified. Respondent's filed no PFOF: COPIES FURNISHED: Charles B. Harvey, Esquire 1018-104 Thomasville Road Tallahassee, FL 32303 James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate P. O. Box 1900 Orlando, FL 32802 Jack McRay General Counsel 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900
Findings Of Fact Respondent (all references to Respondent are to Respondent Simmonds) is a licensed real estate broker in the State of Florida holding license numbers 0404486 and 0245930. His most current licenses are as a broker, c/o the corporate Respondent. He has been licensed about six years in Florida. The corporate Respondent (all references to the corporate Respondent are to Respondent L. G. Simmonds Realty, Inc.) is a corporation registered as a real estate broker in the State of Florida holding license number 0245825. At all material times, Respondent was licensed and operating as a qualifying broker and officer of the corporate Respondent. He is the sole shareholder of the corporate Respondent and the only broker employed by the corporate Respondent. Respondents were brokers in three sales transactions in which they received competing claims for earnest money deposits that they held in trust. The three contracts are the sale from Durant to Durant by contract dated February 13, 1987, and amended December 7, 1987; the sale from Dyer to James by contract dated August 27, 1988; and the sale from Kollar and Nilands Bar & Package, Inc. to Hamilton by contract dated October 11, 1988. Each of the three contracts is on a standard printed form. Each contract requires the corporate Respondent to hold the earnest money deposit in escrow and disburse it at closing, at which time the corporate Respondent earns its commission. Each contract provides that the corporate Respondent may interplead the funds in circuit court in the event of a dispute and further provides that the corporate Respondent shall comply with Chapter 475, Florida Statutes. The Durant contract provides for the corporate Respondent to hold a $1000 earnest money deposit. A dispute between the parties to the Durant contract arose, and Respondent contacted the Florida Real Estate Commission for advice. By letter dated November 22, 1988, Respondent informed the Florida Real Estate Commission of a demand by the seller for the deposit because the buyer had failed to follow through on his mortgage application. The letter states that Respondent is convinced that the seller is entitled to the deposit and that Respondent intends to pursue interpleader. By Notice dated February 2, 1989, the Florida Real Estate Commission informed Respondents that it could not issue an Escrow Disbursement Order because of the unenforceability of certain contractual language. Referring to Rule 21V-10.32, the letter advised Respondents that, within 30 days of receipt of the letter, they must pursue arbitration, with the consent of all parties, or a judicial adjudication, such as through interpleader. At some point, Respondents obtained an application for arbitration and sent it to the parties. By letter dated June 12, 1989, Respondents informed the Florida Real Estate Commission that they had sent an arbitration contract on March 21, 1989, to the seller, who had not yet responded to the request to arbitrate. Subsequently, Respondents retained counsel at their expense to discuss interpleading the funds in circuit court. Counsel advised them that the relatively modest sum involved, as a practical matter, precluded the judicial remedy because the attorneys' fees would exceed the amount in dispute. Eventually, the parties to the Durant contract settled their dispute, and Respondents disbursed the funds pursuant to the parties' stipulation. There is no evidence of a complaint about Respondents' handling of the earnest money deposits, nor is there any evidence that Respondent failed to account or deliver the deposit to any person as required by law. The Dyer contract also involved an earnest money deposit of $1000, which was later increased by addendum to a total of $3000. The Dyer contract, which also failed to close, provides for the corporate Respondent to hold the earnest money deposit. By letter dated March 2, 1989, Respondents informed the Florida Real Estate Commission that, as of the same day, they had received conflicting demands for the earnest money deposit. By Notice dated August 28, 1989, the Florida Real Estate Commission informed Respondents that it could not issue an Escrow Disbursement Order because of factual disputes that the Commission is not empowered to resolve. The Notice states that Respondents must "immediately" choose one of the remaining alternatives--arbitration or interpleader in circuit court. By letter dated September 8, 1989, Respondents informed the Florida Real Estate Commission that they would seek help through the Arbitration Society of Florida, Inc. It is unclear whether Respondents sent an arbitration application to the parties in the Dyer contract, but no arbitration ensued. The parties to the Dyer contract resolved their dispute in March, 1990, and Respondents disbursed the funds pursuant to the parties' stipulation. There is no evidence of a complaint about Respondents' handling of the earnest money deposits, nor is there any evidence that Respondents failed to account or deliver the deposit to any person as required by law. The Kollar contract resulted in the receipt by the corporate Respondent of an earnest money deposit of $10,000. This contract also failed to close. By letter dated January 19, 1989, Respondents informed the Florida Real Estate Commission of conflicting demands received the same day. The Commission issued an Escrow Disbursement Order on August 16, 1989, with which Respondents promptly complied. There is no evidence of a complaint about Respondents' handling of the earnest money deposit, nor is there any evidence that Respondents failed to account or deliver the deposit to any person as required by law. On January 30, 1990, Petitioner's investigator visited Respondents' office pursuant to a complaint that never provided any basis for disciplinary action. Respondent said that he was ill and asked her to reschedule the visit. They agreed to reset it for February 6, 1990. On February 6, 1990, Petitioner's investigator met Respondent at his office and asked for copies of all pending contracts, bank statements, deposit slips, cancelled checks, and similar materials so that she could reconcile the trust account. Respondent supplied her with all of these materials except for the cancelled checks, which he said were at the accountant's office. Respondent gave the investigator access to his office copier so that she could copy whatever she needed. She apparently copied various documents, but failed to copy the pending contracts. From February, 1988, through February, 1990, Respondents held 6-10 earnest money deposits. On February 6, Respondents had only three pending contracts for which they held deposits. These were the Dyer contract and two unidentified contracts with $3500 and $500 earnest money deposits. Respondents did not handle other trust funds, such as property management funds. Petitioner's investigator determined that the trust account was short $2897.73. She found pending contracts indicating that Respondents should be holding a total of $7000 in earnest money deposits, but she found a bank balance of only $4102.27, which included a deposit of $1392.26 made on February 5. Respondents' trust account has been short previously. For example, in August, 1989, the Dyer, Durant, and Kollar contracts, which were still outstanding, generated a trust account liability of $14,000, but the account balance was as low as $700. Respondent admits that he improperly removed funds from the trust account, without the parties' knowledge, to apply toward personal medical expenses that he had incurred. In the fall of 1989, he deposited into the trust account proceeds from a loan he had recently received. However, he removed additional trust funds when he later incurred more medical expenses. By February 6, Respondent knew that the trust account was short, but evidently did not know precisely by how much. His repeated vagueness concerning the specifics of trust account withdrawals and deposits from August, 1989, through February, 1990, discredits his testimony that he never withdrew more than the amounts of pending commissions, which were unearned in any event when withdrawn by Respondent. On February 7, Respondent deposited $2897.73 into the trust account to eliminate the deficiency found by Petitioner's investigator. During the following week, the investigator returned to Respondents' office. She requested Respondent to produce the same documents that she had examined previously, but Respondent refused on the grounds that he had already produced all the documents once and he was seeking legal counsel. The investigator contacted Respondent a couple more times concerning the requested documents, but Respondent continued to refuse to cooperate. Petitioner next tried to compel the production of the requested documents by service of an administrative subpoena. By subpoena duces tecum issued February 19, 1990, and served February 21, 1990, Petitioner demanded that Respondents produce, on February 26, 1990: All current pending sales contracts, on L. G. Simmonds Realty Escrow Account #144100004792 all bank deposit slips from 2/1/88-2/1/90, the check book for account #14410004792. Upon receipt of the subpoena, Respondent contacted his attorney, who prepared a petition to invalidate subpoena, which was served by mail on February 25, 1990, and received by Petitioner on February 28, 1990. The basic objections are that the subpoena is "unreasonably broad in scope and/or requires the production of irrelevant material" and that Respondents are entitled to know what complaint is being investigated prior to producing the information. Petitioner issued another administrative subpoena on March 12, 1990, which was served upon Respondents on March 26, 1990, and requested, by March 30, 1990: On L. G. Simmonds Realty Escrow Account #14410004792: All sales contracts for which L. G. Simmonds Realty, Inc. is holding escrow deposits, the 1/90 and 2/90 bank statements, cancelled checks, number 177 through 270. On March 29, 1990, Respondents' attorney served the same objections to the petition, and Petitioner received the objections on April 4, 1990.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order reprimanding Respondents; imposing on each Respondent an administrative fine of $3000 (for a total from the two Respondents of $6000); requiring Respondent to complete an approved 60-hour course; suspending the licenses of both Respondents for a period of six months, commencing retroactive to when their licenses were revoked pursuant to the emergency order; placing both licenses on probation for a period of three years commencing the conclusion of the suspension; and requiring, during the period of suspension, that Respondents provide the Florida Real Estate Commission, or its signated representative, with escrow account status reports at such intervals as the Commission shall require. DONE and ORDERED this 9th day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 9th day of October, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4438 Treatment Accorded Proposed Findings of Petitioner 1-7: adopted. 8: rejected as subordinate. 9-10 (first sentence): adopted. 10 (second and third sentences): rejected as unsupported by the greater weight of the evidence. In fact, Respondent supplied the investigator with copies of the contracts on February 6, but refused subsequent requests to produce them. He indicated that he wanted to obtain advice of counsel. 11: rejected as subordinate. In addition, the implication that files of the Division of Real Estate were the sole source of information regarding the contracts is rejected as unsupported by the greater weight of the evidence. The investigator found in the EDO files of the Division of Real Estate a copy of the Dyer contract, which, as noted in the recommended order, was one of the three contracts generating the escrow account liability that the investigator calculated on February 6. Although she saw the other two contracts (in order to generate the liability), she never received copies of them, even through the final hearing. 12-19: adopted or adopted in substance. 20-21 (with respect to each paragraph, first sentence and first clause of second sentence): adopted. 20-21 (with respect to each paragraph, remainder): rejected as irrelevant. 22: adopted. 23: rejected as irrelevant. 24-27 and 30-33: adopted. 28 and 34: rejected as unsupported by the greater weight of the evidence and unnecessary. 29: rejected as unsupported by the greater weight of the evidence. Treatment Accorded Proposed Findings of Respondents 1-12: adopted or adopted in substance. 13: rejected as subordinate. 14-15: adopted. 16 and 19: rejected as unsupported by the greater weight of the evidence and legal argument. 17: rejected as unsupported by the greater weight of the evidence. 18: adopted. 20: rejected as irrelevant. 21: rejected as subordinate. 22: adopted. 23-24 and 26-27: rejected as recitation of testimony. 25: rejected as unsupported by the greater weight of the evidence. 28-33 (first clause of second sentence): adopted. 33 (second clause of second sentence): rejected as unsupported by the greater weight of the evidence and legal argument. 33 (remainder): adopted. 34-35: except as to the fact of the issuance of the subpoena and petition to invalidate, rejected as unnecessary. 36: rejected as unclear. Respondent gave the investigator a chance to see the three pending contracts generating the February 6 trust account liability, but never gave her copies of any of them when she later discovered that she had failed to copy them. She found a copy of the Dyer contract in the EDO file, but she never received copies of the other two contracts, even at the final hearing. The last sentence is rejected as unnecessary. The determination in the recommended order on this point was not dependent upon Respondents' handling of the subpoenas, but on their handling of repeated and reasonable requests for relevant information. 37: rejected as irrelevant. 38: adopted. 39: rejected as unnecessary. 40-43: adopted or adopted in substance. 44: adopted. 45: rejected as unnecessary. 46-49: adopted or adopted in substance. COPIES FURNISHED: Attorney Thomas V. Infantino Infantino and Berman Post Office Drawer 30 Winter Park, Florida 32790-0030 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Attorney James H. Gillis Division of Real Estate Florida Real Estate Commission 400 W. Robinson St. Orlando, Florida 32801-1772 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 *Previously assigned DOAH Case No. 90-4319 closed as a duplicate.
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
Findings Of Fact The following are the facts which the parties agree should be considered in resolving the legal issues raised in the instant case: The Department is a state government licensing and regulatory agency. Respondent Marsh A. Ferreira is now, and has been since 1990, a licensed real estate broker in the State of Florida. He holds license number 0523079. Since becoming a licensed broker, the only complaint that has been made against him in connection with the practice of his profession is the complaint that is the subject of the instant case. At all times material to the instant case, Respondent Ferreira was licensed and operating as a qualifying broker and officer of Respondent M A F Realty, Inc. (Realty). Realty is now, and has been at all times material to the instant case, a corporation registered as a real estate broker in the State of Florida under license number 0263255. The license reflects that Realty's address is 4143A S.W. 74th Court, Miami, Florida 33155. Like Respondent Ferreira, Realty has an unblemished disciplinary record to date. On or about July 31, 1991, Hector Schwerert, an investigator with the Department, conducted an office inspection/audit of Realty during business hours. The inspection/audit was routine. It was not prompted by any complaint against Respondents. Schwerert gave no advance warning of his visit. Nonetheless, Respondents gave him their full cooperation and did not seek to postpone or delay the inspection/audit. Schwerert's inspection/audit revealed the following: Realty's sales escrow account #20207038305 had an approximate shortage of $8,359.31. Its total trust liability was $8,500.00, but there was only $140.69 in the account. Respondent Ferreira was the sole employee of Respondent. He, and he alone, had access to the escrow account, as well as Realty's operating account. On occasion, he would "unintentionally confuse the checkbooks" of the two accounts and inadvertently use monies in the escrow account for operational purposes and monies in the operating account for escrow purposes. It was this "unintentional confusion" that caused the shortage in the escrow account. During the period from January, 1990, when Realty was incorporated, to the date of the inspection/audit, Respondent Ferreira, on behalf of Realty, prepared and signed written escrow account statements/reconciliations on a monthly basis. On two, and only two, of these statements/reconciliations, the escrow account balance did not equal the amount of Realty's trust liability and there was no explanation given for the discrepancy, nor any indication that corrective action would be taken. On August 1, 1991, immediately upon realizing that he had inadvertently deposited trust funds in Realty's operating account instead of its escrow account, Respondent Ferreira withdrew $10,000.00 from the operating account and deposited it into the escrow account to eliminate the shortage in the escrow account. Since the July 31, 1991, inspection/audit Respondent Ferreira has taken a 30-hour broker's course in which he received an above average score and has met his continuing education requirements. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Commission enter a final order finding Respondents guilty of the violations alleged in the Administrative Complaint and imposing upon them, for having committed these violations, the penalties proposed by the Department in its proposed recommended order, which are recited above. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of April, 1993. STUART M. LERNER 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 April, 1993.
