The Issue The issue in this case is whether the Respondents' real estate licenses should be disciplined based upon charges set forth in the Administrative Complaint which allege violations of Sections 475.25(1)(b),(e), and (k), Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints which allege, in particular, violations of Chapters 455 and 475, Florida Statutes, and rules promulgated thereunder. Respondent David Shihada is now and, at all times material hereto, has been licensed as a real estate broker in the State of Florida, having been issued license number 0239798. His most recent broker's license was issued to him at Shihada Real Estate, Inc., 959 S.W. 87th Avenue, Miami, Florida 33174. Respondent Shihada Real Estate, Inc., is now and, at all times material hereto, has been a corporation registered as a real estate broker in the State of Florida, having been issued license number 0239797. The last license issued was at the address of 959 S.W. 87th Avenue, Miami, Florida 33174. At all times material hereto, Respondent David Shihada was licensed and operating as the qualifying broker for Respondent Shihada Real Estate, Inc. From May 3, 1990 to May 10, 1990, Petitioner's investigator, Hector F. Sehwerert, conducted an audit of Respondents' escrow accounts. This audit revealed that Respondents' pending sales escrow account #0103005236-06 had a total current liability of $22,050, with a current bank balance of $20,596.56, thereby reflecting a shortage of $1,453.44. In a sworn affidavit dated May 10, 1990, Respondent David Shihada stated that the shortage was a bank "mistake". On or about May 10, 1990, the Respondents deposited sufficient funds, by check numbered 1931, to cover the $1,453.44 shortage in their escrow account. On or about May 8, 1990, Gabriel Sanchez, Respondents' salesman who is also an officer at Westchester Bank where Respondents maintain their escrow account, signed a sworn affidavit stating that he had just completed an attempted reconciliation of the aforementioned escrow account from May 1989 to May 2, 1990. Sanchez was unable to find any shortage in Respondents' escrow account. He will be doing monthly reconciliations for the Respondents from May 1990 forward. From May 31, 1989 to May 2, 1990, the Respondents failed to complete and sign written monthly reconciliation statements comparing their total trust liability with the reconciled bank balance of all trust accounts as required by the rules of the Florida Real Estate Commission.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued concluding that Respondents' actions as found above constitute a violation of Section 475.25(1)(b), Florida Statutes, and further: Imposing an administrative fine in the total amount of $500; Placing the Respondents' real estate licenses on probation for a period of one year, provided that the Respondents shall not be required to retake any state licensure examination as a result of this proceeding, and provided further that Respondent David Shihada shall provide quarterly escrow account activity reports, including evidence of compliance with Rule 21V-14.012, Florida Administrative Code, as well as evidence of successful completion of the sixty hour post-licensure examination course for brokers in addition to other continuing education required to be completed by licensees in order to maintain their active and current licensure status; Requiring the Respondent David Shihada to appear before the Florida Real Estate Commission at the last meeting of the Commission preceding termination of his period of probation; and Dismissing Counts III through VI of the Administrative Complaint. DONE AND ENTERED this 21st day of November 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November 1990. APPENDIX (DOAH CASE NO. 90-4939) Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. 9-10. Adopted in Finding 9. 11. Adopted in Finding 10. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate P. O. Box 1900 Orlando, FL 32802-1900 John H. Duhig, Esquire 702 City National Bank 25 West Flagler Street Miami, FL 33130-1770 Kenneth E. Easley, Esquire 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller, Director Division of Real Estate P. O. Box 1900 Orlando, FL 32801
The Issue Whether Respondent has violated provisions of the Florida Statutes or the Florida Administrative Code which relate to his licensure as a limited surety agent (a bail bondsman) as charged in the Administrative Complaint, and, if so, what is the appropriate discipline? PRELIIMINARY STATEMENT On August 28, 1996, the Division of Administrative Hearings received a letter from the Department of Insurance signed by Dick Kessler, Esquire, of the Department’s Division of Legal Services. The letter was in regard to “CARL ALBERT THOMPSON, Case No. 14413-95-A.” In addition to requesting assignment of a Hearing Officer (Administrative Law Judge) to conduct a proceeding pursuant to Section 120.57(1), Florida Statutes, the letter referred to an enclosed Administrative Complaint and a request for formal hearing. The Administrative Complaint alleged that Respondent, Bondsman Carl Albert Thompson, had committed numerous violations of the Florida Insurance Code and the Florida Administrative Code related to his licensure as a limited surety agent or bail bondsman in two counts. The first count alleged generally that he wrote bail bonds in the case of Jose Zamora in the amount of $10,000 and, notwithstanding that all obligations of the bond had been released, refused to refund the bond less the premium claimed. The second count alleged that Thompson failed to have on file with the Department of Insurance an accurate business address. Also attached to the letter of August 21, 1996, were both an answer to the Administrative Complaint submitted by Respondent’s attorney, Ms. Germann, in which he denied pertinent parts of the complaint, and an Election of Rights Form in which he disputed factual allegations in the complaint and requested a formal hearing pursuant to Section 120.57, Florida Statutes. The case proceeded to hearing on December 16, 1996, in Arcadia, Florida. The Respondent was not present. Through Ms. Germann, he filed a motion to bifurcate the hearing to allow the Department’s case-in-chief to proceed as scheduled while allowing him to appear at a later date, since he alleged he was unable to attend due to a last-minute illness. The motion was granted on the condition that Respondent would provide physician documentation of the illness. Such documentation was never filed with the Division of Administrative Hearings. Following the granting of the motion, Petitioner proceeded with its case, offering into evidence 13 exhibits all of which were admitted. Petitioner also presented nine witnesses, including six members of the Villafuerte family: Hilario Villafuerte, Consuela Ylda Villafuerte, Martin Villafuerte, Jose Isidro Zamora, Ylda Patricia Villafuerte, and Juana Ramirez. The second phase of the proceeding was scheduled for February 19, 1997. It was canceled because of an accident which befell Ms. Germann. Pursuant to agreement of the parties, the hearing was rescheduled for April 18, 1997. Three days prior to commencement of the re-scheduled second phase of the proceeding, Mr. Migneault served a notice of appearance. He also filed a motion for continuance on the basis of inadequate time for him to prepare and conflicts with scheduled criminal jury trials. The motion was denied, not because it did not on its face allege good cause for a continuance, but because good cause was not shown in light of all the circumstances of the case: Mr. Thompson’s failure to appear at the originally noticed hearing, Mr. Thompson’s failure to provide physician documentation of his December 1996 illness, the seriousness of the case, the lengthy delay which had already ensued and the Department’s objection to further delay. At the April 18 hearing, Mr. Migneault did not appear. Ms. Germann, however, was present in order to petition for withdrawal as counsel for Respondent. Prior to presenting her withdrawal, Ms. Germann on Mr. Migneault’s behalf, announced that Respondent was in jail in Charlotte County and, on that basis, moved ore tenus for a continuance. Ms. Germann was permitted to withdraw. In response, the Department presented testimony of its law enforcement investigator, Antonio Davis, who reported that he had been informed by Charlotte County law enforcement personnel that Respondent, indeed, was in jail. Investigator Davis further reported, however, that he had been informed by the same personnel that Respondent turned himself into Charlotte County authorities under an outstanding warrant for his arrest issued months earlier and that he had done so at 9:30 that morning, one- half hour prior to noticed commencement of the hearing. The ore tenus motion for continuance was denied. Because Respondent was not present and was represented solely by Mr. Migneault, who also was not present, no defense was presented in a case continued twice and delayed for over four months for the very purpose of allowing presentation of Respondent’s case. The hearing was concluded and the record closed without any evidence from Respondent in defense of very serious charges against him.
Findings Of Fact The Parties Carl Albert Thompson, at all times relevant to these proceedings, has been licensed by the Department of Insurance as a limited surety agent, known colloquially as a bail bondsman. His agent number, according to records of the department, is 265683823. Records with the Department show this address of the agency for whom he wrote bonds: Sechrest Bail Bonds Inc 128 Herald Ct Punta Gorda FL Petitioner’s Ex. No. 1. The Department of Insurance is the agency for the State of Florida responsible for licensing limited surety agents and, upon sufficient grounds, disciplining them for violation of the Florida Insurance Code or Florida Administrative Code relating to the licensing and conduct of licensed bail bondsmen. The Arrest of Jose Zamora Jose Zamora is the nephew of Consuelo Villafuerte; he is the son of one of her sisters. In February of 1995, Jose lived with his aunt and her husband, Hilario Villafuerte in the area of Arcadia, Florida, where Mr. Villafuerte works as the leader of a crew of orange pickers. The Villafuertes have a close, extended family which includes their son Martin. Like his father, Martin is the leader of a crew of orange pickers. Martin Villafuerte attended schools in the Arcadia area. He speaks English fluently. Hilario and Consuela Villafuerte came to the United States from Mexico as adults. They speak English, but not as well as their son. Both were more comfortable at final hearing testifying in Spanish with the assistance of an interpreter than in English which Mr. Villafuerte termed “broken.” Shortly before February 13, 1995, Jose Zamora, was arrested for driving while intoxicated. Bail was set at $10,000. It was not the first time Mr. Zamora had been arrested. “[Y]ears back . . . [he] had had a similar case . . . .” (Tr. 73.) In this first case of Jose’s, however, bail was half as much: $5,000. The Villafuerte family had dealt with Jose’s bail in this first case through Hilario Villafuerte. Mr. Villafuerte deposited the $5,000 in cash at the sheriff’s office at the jail. The experience was a successful one succinctly described by Hilario Villafuerte at final hearing: “When [Jose’s] court was over I went with my nephew and they gave me the $5,000 without missing five cents.” (Tr.73.) The first of the Villafuertes to learn of Jose’s second arrest, the February 1995 arrest, was Martin. About to leave for church, he received a phone call from a friend that his cousin had been in an accident. He went to the scene immediately. After Jose was taken to jail, Martin inquired about his release and learned that bail was set at $10,000. It was important to Martin that Jose be bailed out. Not only was he a member of the family, but Jose was also a member of Martin’s orange picking crew, for which Martin shoulders a heavy responsibility. In the several years that he has led the crew, the only day of work Martin has ever missed was the first day of hearing in this case so that he could testify. Martin had to work the weekend of Jose's February 1995 arrest. He asked his father to go to the jail to deliver the bail money. First, though, Martin had to raise the ten thousand dollars, not a simple matter. The Villafuerte Family Pitches In Jose Zamora had been giving his aunt some of the money he earned at work for her to save for him. In February of 1995, it amounted to $1,200, not nearly enough to meet the amount of his bail. Martin canvassed family members. Martin and his wife, Ylda, had $4,000 in the bank, while Martin’s sister, Juana Ramirez, was able to contribute the remainder needed: $4,800. The family was able to amass the $10,000 needed to make bail for Jose. The money was withdrawn from bank accounts in, or converted into, $100 denominations. On February 13, 1995, Hilario and Consuela Villafuerte with the $10,000 in cash, all in $100 bills nestled safely inside Consuela Villafuerte’s purse, set out for the county jail. Mix-up at the Jail In the interim between Jose Zamora’s first case and the February 1995 case, the jail had been remodeled. When they arrived at the sheriff’s office in the jail, Hilario Villafuerte noticed the result of the remodeling; the physical arrangement was different from when he had been there before. There was no interpreter at the jail through whom Mr. Villafuerte could explain the purpose of his visit in Spanish. Instead, Mr. Villafuerte told the receptionist at the front desk in English as best he could, why he had come to the jail. The receptionist asked whether he had the $10,000 in cash. When Mr. Villafuerte responded in the affirmative, the receptionist did not seem to know what to do. She asked Mr. Villafuerte the same question three or four times. Each time he responded in the affirmative. She called over a uniformed member of the sheriff’s department. Mr. Villafuerte could not hear what he said but he observed him shake his head “no.” The receptionist then told Mr. Villafuerte to take the money to any of three places across the street. An Unlucky Choice The three places to which Mr. Villafuerte was directed were bail bond establishments, one of them Fowler Bail Bonds where Mr. Thompson was employed. Mr. Villafuerte thought, however, because the sheriff’s office had been renovated that he was being directed to a new branch office of the sheriff’s department where bail money could be received. Mr. and Mrs. Villafuerte crossed the street and knocked on the door of Fowler Bail Bonds. Carl Albert Thompson answered. Mr. Villafuerte told him, “that they had sent me from the Sheriff’s Department to give him that money for the bond for Jose Isidro Zamora.” (Tr. 69.) Mr. Thomspon indicated he would accept the ten thousand dollars. The only legitimate purpose for taking more than a 10% premium, in this case one thousand dollars, was as additional collateral. Mrs. Villafuerte removed the money from her purse and gave it to her husband. In the presence of Mrs. Villafuerte, Mr. Villafuerte counted out the $10,000 for Thompson to see in thousand dollar piles: ten piles of ten $100 bills. Thompson wrote the Villafuertes a receipt for $10,000, the amount they entrusted to his care. The receipt was not pre-numbered. It did not indicate on its face the purpose for which the money was received, the number of the Power of Attorney form attached to the bond, or the penal sum of the bond. Posting of the Bonds On the same day as the Villafuerte’s visit to Mr. Thompson’s office, February 13, 1995, two General Surety Appearance Bonds, each in the sum of $5,000, for a total of $10,000, were filed with the Clerk of Courts for DeSoto County for two charges in the case of State of Florida vs. Jose Zamora: “DUI w/ personal injury,” and “DUI w/ property damage.” Petitioner’s Composite Ex. No. 7. The premium for each of the two bonds was $500 for a total of $1,000. The bonds are signed by both Jose Zamora and, for Accredited Surety & Casualty Company, Inc., as surety, by Carl Thompson, “attorney-in-fact.” Id. The Remaining Nine Thousand Dollars The additional $9,000 the Villafuerte’s gave to Mr. Thompson was not deposited or paid to a surety company; nor did Thompson place the money with the DeSoto County sheriff’s department for the bail of Jose Zamora. On February 14, 1997, there was deposited in an account at the First State Bank of Arcadia, named the “Carl Thompson DBA/Fowler Bail Bonds Escrow Account,” (Petitioner’s Exhibit No. 11), $9,000, all in one-hundred dollar bills, bills that had composed nine of the ten stacks counted out to Carl Albert Thompson by Hilario Villafuerte the day before. Obligations of the Bond Fulfilled In the interim between the posting of the bond and the deposit of the $9,000 in Mr. Thompson’s escrow account, Jose Zamora was released from jail. The case then reached disposition; the obligations of the bond were fulfilled. Attempts to Retrieve the Money After finalization of Jose Zamora’s case, he and Hilario and Martin Villafuerte went together to Mr. Thompson’s office two or three times. Thompson was not there. Martin persisted. Eventually he contacted Mr. Thompson. Thompson told him that it would take two months for paperwork to be completed before the money could be returned. His suspicion not aroused, Martin told Thompson that he would be checking with him from time to time during the two-month period. True to his word, Martin continued to visit Mr. Thompson’s office. In the two months following his initial contact with Thompson after disposition of Jose Zamora’s case, he went by the office approximately 15 times. Whenever he saw Mr. Thompson, Martin was given slightly different details as to why the money was not yet available. Finally, because the family needed the money, Martin visited the courthouse and made an inquiry. He was told that everything was cleared and that he was entitled to receive any cash bond money owed by Mr. Thompson for the Zamora case. More visits and conversations ensued with Mr. Thompson until the Villafuerte family realized that it was not likely that Thompson would return the ten thousand dollars or any part of it. (Thompson had told the Villafuertes that they were entitled to only an amount slightly less than $9,000 because 10% of the money was the premium for the two bonds posted and because there was a slight charge for paperwork.) The Villafuertes hired an attorney in an attempt to regain their ten thousand dollars. On November 17, 1995, the attorney wrote a letter to the Department of Insurance to inquire as to steps that might be taken toward filing a complaint or pursuing the return of the money entrusted to Mr. Thompson. The letter led to investigation and the administrative complaint in this case. The Administrative Complaint The Administrative Complaint is in two counts. Because of his misappropriation of the Villafuerte's money, refusal to refund it, and issuance of an improper receipt, the first count charges Thompson with having violated or being accountable under the following provisions of law: Sections 648.295(1) and (3), 648.33, 648.36, 648.442(1), (4) and (8), 648.45(2), (2)(d), (2)(e), (2)(f), (2)(g), (2)(h), (2)(j), and (2)(l), 648.45(3), (3)(b) and (3)(d), Florida Statutes; and, Rules 4-221.105, 221.115 and 120, Florida Administrative Code. The second count charges Thompson with violating Section 648.421, Florida Statutes, and Rule 4-221.060, Florida Administrative Code for failure to notify in writing the Department of a change in name, address or telephone number of the agency or firm for which he writes bonds. Change of Agency The name and address of the agency for which Mr. Thompson’s was writing bonds listed in Department records at the times material to this case were not correct. Thompson left the Sechrest office in Sarasota to work for Fowler Bail Bonds as a subagent in its Arcadia office where he met the Villafuertes. When he did so, he did not notify the Department of Insurance of the change of name, business address and telephone address of the agency for which he was then writing bonds, Fowler Bail Bonds. Thompson no longer works for Fowler. He left in November of 1995 for another company after Fowler put pressure on him because of poor performance generally.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Department of Insurance revoke the “limited surety agent” license of Carl Albert Thompson. DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Florida. DAVID M. MALONEY 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 13th day of June 1997. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner General Counsel Department of Insurance The Capitol, LL-26 Tallahassee, Florida 32399-0300 Dickson E. Kessler, Esquire Division of Legal Services Department of Insurance 401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128 David J. Migneault, Esquire 201 West Marion Avenue, Suite 205 Punta Gorda, Florida 33950
The Issue The central issue in this case is whether the Respondent, Sandro L. De Andrade, committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, Respondent has been licensed by the Department as a limited surety agent performing bail bond services. The Department is the state agency charged with the responsibility and authority of regulating limited surety agents such as Respondent. On or about March 18, 1995, Bernard Barrineau and Maggie Porto, on special assignment to investigate activities occurring at the Dade County courthouse, went to the east wing of the county jail to observe. While there they met an individual later known to them as Respondent who was assisting someone regarding bail bond services. Respondent asked Mr. Barrineau to go outside with him for a cigarette break. While on the grounds outside Respondent handed Mr. Barrineau a business card bearing the business name "Curly Bail Bonds" and the address as 1670 N.W. 17th Avenue, Miami, Florida 33125. When Ms. Porto came out and approached the two men, Respondent handed her an identical business card with the instruction "just in case." Neither Mr. Barrineau nor Ms. Porto asked Respondent for assistance. Neither did anything to encourage Respondent to think either sought bail bond assistance from him. Either Mr. Barrineau or Ms. Porto answered "yes" when asked if they were at jail to get someone out. The question may have been posed by the client Respondent was at the jail to assist. Respondent was called to the jail to assist someone whose parent was charged with DUI. Ms. Porto and that individual talked while Respondent filled out papers. Respondent alleged he did not hear the conversation. According to Respondent, he was only at the jail to assist the client whose parent was charged with DUI. The "client" did not testify in this matter. At all times material to this case, the business address on record with the Department for the Respondent was McCroys Store, 23 E. Flagler Street, Miami, Florida. Respondent received an appointment to execute bail bonds on behalf of Allegheny Mutual Casualty Company on August 1, 1994. Respondent had been conducting bail bond business for seven months when the incident complained of occurred.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order suspending Respondent's limited surety agent license for a period of six months. DONE AND ENTERED this 5th day of March, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3016 Rulings on the proposed findings of fact submitted by Petitioner: 1. Paragraphs 1 through 4 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300 Dickson E. Kesler, Esquire Division of Agent and Agency Services 8070 Northwest 53rd Street Suite 103 Miami, Florida 33166 Larry E. Rogers, Esquire 2121 Ponce de Leon Boulevard Suite 240 Coral Gables, Florida 33134 Sandro Lorenz De Andrade 1670 Northwest 17th Avenue Miami, Florida 33125
Findings Of Fact Respondent, Robert D. Donovan, is a licensed real estate broker in the State of Florida, holding license number 0169298. Mr. Donovan is the owner of and the qualifying broker for Respondent, Robert Donovan Realty, Inc. Respondent, Robert Donovan Realty, Inc., is a corporation registered as a real estate brokerage company in the State of Florida, holding license number 0195250. The last license issued to the realty company was voluntarily placed on inactive status by Mr. Donovan. On July 24, 1989, the Petitioner's Investigator, Elaine M. Brantley, conducted an audit of Respondents' escrow/trust accounts. The audit included the time period of July, 1988, through June 30, 1989. The audit revealed that Respondents' rental escrow account #134740 maintained at First National Bank and Trust, Fort Walton Beach, Florida, had a current liability of $4,679.00 and a current bank balance of $3,113.51, resulting in an escrow shortage of $1,565.49. The $1,565.49 in missing escrow funds were replaced the following day by Mr. Donovan. The audit further revealed that the Respondents, through other agents, were inadvertently making improper disbursements from the rental escrow account #134740. The improper disbursements consisted of casual employee pay, postage and an improper security deposit refund. The agents responsible for the rental escrow accounts were experienced in the proper maintenance of such accounts. The disbursals were inadvertently made by these agents from the rental escrow account. Respondents were the brokers responsible for the maintenance of and disbursements from the rental escrow account. In maintaining the rental escrow account, Respondents were, from July, 1988, through June 30, 1989, reconciling the rental escrow checking account with the bank statement on a monthly basis . However, the Respondents failed from July, 1988, through June 30, 1989, to reconcile either the individual owners' or a total of the individual owners' rental escrow ledger balance with the rental escrow checking account on a monthly basis . Had the individual reconciliation been made, they would have revealed the shortages and improper disbursements made by Respondent's employees. Such individual reconciliations are required by good accounting practice and Rule 21V-14.012, Florida Administrative Code. On these facts and since Respondents were the brokers responsible for the rental escrow account, Respondents failed to use good accounting practices in the maintenance of their rental escrow account and allowed improper disbursements to be made from their trust accounts. Therefore, Respondents have violated Sections 475.25 (1)(e) and 475.25(1)(k), Florida Statutes. There was no substantial evidence which suggested that Respondent was guilty of fraud, misrepresentation, breach of trust or culpable negligence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a Final Order finding the Respondents guilty of violating Section 475.25(1)(e) and (k), Florida Statutes and imposing a fine of $250.00 on each Respondent for the two violations. It is further recommended that Respondents' real estate licenses be placed on probation until Respondent Robert D. Donovan complete and show evidence to the Petitioner of having successfully completed, sixty (60) hours of post licensure education for brokers of which at least thirty (30) hours shall concern real estate management and/or accounting methods, and that Respondents be ordered to comply with the provisions of Rule 21V-24.001(2)(b), Florida Administrative Code, by scheduling an attendance at and attending the first meeting of the Florida Real Estate Commission after completion of the required coursework in order to terminate the probation of his license. RECOMMENDED this 1st day of October, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 1st day of October, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3006 The facts contained in paragraphs 2, 3, 4, 5, 6 and 7 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 1 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are adopted except for the last sentence which was not shown by the evidence. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Legal Section Hurston Building - North Tower Suite N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Robert D. Donovan Robert Donovan Realty, Inc. 507 Mooney Road Fort Walton Beach, Florida 32458
The Issue Whether Respondents committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against them?
Findings Of Fact Based upon the record evidence and the stipulations entered into by the parties, the following Findings of Fact are made: Murray Wieder (Respondent Wieder) is now, and was at all times material hereto, a real estate broker licensed in the State of Florida pursuant to license number 0303130. His last license was issued c/o Wieder Realty, Inc., 900 S. Pompano Parkway, Pompano Beach, Florida 33069. Wieder Realty, Inc. is now, and was at all times material hereto, a corporation licensed in the State of Florida as a real estate broker pursuant to license number 0254413. Its last license reflects its address as 900 S. Pompano Parkway, Pompano Beach, Florida 33069. Respondent Wieder is now, and was at all times material hereto, the President of Wieder Realty, Inc., and its qualifying broker. Margaret Hoskins has been an investigator with the Department of Professional Regulation for the past year and a half. As part of her responsibilities, she conducts audits of escrow accounts maintained by real estate brokers licensed in the State of Florida. On April 27, 1989, Hoskins conducted a routine audit of Respondents' escrow accounts. Her investigation revealed that, on that date, Respondents maintained at Bank Atlantic in Fort Lauderdale, Florida, a noninterest-bearing escrow account (number 005-50199 0-3) with a balance of $14,577.39 and an interest- bearing account (number 005-175922-1) with a balance of $32,955.50. Respondents' "trust liability" with respect to these two accounts was $41,856.50. The $5,676.39 difference between the total balance of these two escrow accounts and Respondents' "trust liability" represented accrued interest on the monies deposited in the interest-bearing account. Respondents used the accrued interest to cover their incidental operating expenses. Hoskins further discovered as a result of her investigation that on March 13, 1989, Respondents had deposited $50,000.00 into the noninterest- bearing account, which prior to the transaction had had a balance of $950.58, and that on March 30, 1989, Respondents had withdrawn $25,000.00 from the interest-bearing account and had deposited $25,000.00 in the noninterest-bearing account. During the course of her investigation, Hoskins spoke with Respondent Wieder, who indicated to her that it was his practice to transfer funds from one of the Bank Atlantic escrow accounts to the other. Of the fully executed sales contracts and lease agreements Respondents' had on file, only one, the Kutner-Fox contract, contained a provision authorizing Respondents to place escrow monies in the interest-bearing account and to use the accrued interest for incidental operating expenses. The remaining contracts and leases were silent regarding the matter. Hoskins, in her conversation with Respondent, therefore attempted to find out from him if the escrow monies in the interest-bearing account, other than those attributable to the Kutner-Fox contract, had been deposited in the account with the permission of all interested parties. Wieder, who was otherwise very cooperative, failed to provide Hoskins with a direct answer to her question. Hoskins did not thereafter make any effort to contact these parties and ask them if they had given Respondents permission to place monies held in escrow in an interest- bearing account and to use the accrued interest to cover incidental operating expenses. Later on April 27, 1989, after Hoskins had completed her visit to their office, Respondents withdrew all of the funds from the interest-bearing account and deposited them in the noninterest-bearing account. They then closed the interest- bearing account. Respondents then transferred from the noninterest- bearing account to their operating account $5,676.39, the amount of interest that had accrued on the monies that had been in the interest-bearing account.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a final order in this matter finding the proof insufficient to establish Respondents' guilt of the offenses charged and dismissing the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of August, 1990. 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 22nd day of August, 1990.
Findings Of Fact At all times relevant hereto, Respondent, Ralph A. Call, held real estate broker's license number 0012490 issued by Petitioner, Department of Professional Regulation, Board of Real Estate. Respondent was active broker for a real estate firm located at 1648 Periwinkle Way, Sanibel Island, Florida. At an undisclosed time Respondent purchased Apartment 503, Sandlefoot Condominiums, located on Sanibel Island and later sold it to Eric and Enid Winson. As part of the purchase price, Call agreed to take back two unsecured notes totaling $43,211.73. In February, 1979, the Winsons listed the condominium through Respondent's office. It was agreed that Respondent would obtain all or partial satisfaction of the notes from the proceeds of the sale. On or about March 9, 1979, the Winsons entered into a contract to sell Wolf and Marie Fudikar the condominium for a price of $107,000. Under the terms of the contract, the buyers gave Respondent a $10,690 cash deposit to be held in escrow pending the completion of the sale. The contract also required the sellers to deliver a marketable title to the property. A closing date was set for on or before June 21, 1979. The buyers were represented by Henry Norton, an attorney in Miami, Florida, who was given power of attorney since the Fudikars resided in West Germany. By mutual agreement of the parties, they verbally agreed to change the closing date to Friday, July 20, 1979. It was understood that the buyers would wire the money from Switzerland to Norton in Miami, who would then wire the money to a representative of Gulf Abstract Company in Fort Myers, in whose offices the closing was to be held. When no money was received, a representative of Gulf Abstract telephoned Norton that afternoon end was advised that Norton had not received the money from his clients and could not close. Respondent construed the failure of the buyers to close on that date as a possible breach of the contract. A written standard title insurance binder was issued by Gulf Abstract for the July 20 closing. Although this commitment did not insure marketability, a representative of the firm could not recall any material exclusions or exceptions set out in the policy. The following Monday or Tuesday after the scheduled July 20 closing, a local lending institution filed a lis pendens on the property and instituted a suit against the sellers for defaulting on another debt. Because of this cloud on the title, and other problems which arose, the buyers then reneged on their agreement since no marketable title could be furnished by the sellers. After the sale fell through, both the buyers and sellers made claims for the deposit, each alleging that the other had breached the contract. Upon the advice of counsel, Respondent refused to return the deposit to the buyers since he could also be held liable to the sellers. Respondent finally contacted the Board's District Office in Fort Myers at a later undisclosed time seeking advice on what to do. He was told to call Tallahassee to get an opinion. He then made several telephone calls and wrote letters to various Department representatives or attorneys on December 4, 1980, January 17, 1981, February 19, 1981 and February 28, 1981 requesting that a disbursement order be issued. On March 17, 1981, the Board of Real Estate issued an escrow disbursement order and held, inter alia, that under the terms of the contract closing was to occur no later than June 21, 1979, that no written modification of the terms regarding closing was made, that the sellers were unable to deliver clear title by June 21, and that because of this no contract for sale existed between the parties, and the buyers were not obligated to perform it accordingly ordered Call to disburse the deposit to the buyers. The order also noted that the Order ". . .(did) not provide (Call) with any immunity to any civil liability." On March 31, 1981, Call wrote the Board the following letter: Please be advised that I wish to appeal your decision because it was not based upon actual facts. Please forward to me any form you may have available for this purpose. I am willing and prepared to appear in person for cross examination if necessary, to get the true facts before your board. Please advise. Yours very truly, /s/ Ralph A. Call Counsel for the Board responded by letter on April 17, 1981, stating that "since the contract for sale was between the Fudickars (sic) and the Winsons, (Call was) not entitled to appeal the Escrow Disbursement Order. . ." and further that the "true facts" had already been presented. Upon the advice of his attorney, Call did not comply with the order for fear of liability to the sellers if the deposit was given to the buyers. On March 16, 1982, one day prior to the final hearing, Call obtained a cashier's check in the amount of $10,690 made payable to Norton who represented the buyers. During the entire controversy the deposit remained in Call's escrow account. There is no allegation that Call misused the funds or otherwise improperly dealt with the money while the dispute ensued.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Ralph A. Call, be found guilty as charged in Count II of the Administrative Complaint and be given a public reprimand. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1982.
Findings Of Fact The Respondent, Eric Nartek, is now, and in the years relevant to this case, 1984 and 1985, a licensed real estate broker. On about August 6, 1984, Kenneth P. Grant and Mary E. Grant gave to Mr. Martek a deposit of $1,000 (in two payments) as deposit for the purchase of a condominium from Goldenrod Realty Company. At that time, Mr. Nartek was the broker and president of Goldenrod Realty Company. Through no fault of Mr. and Mrs. Grant, closing of the sale of the condominium was prevented due to a cloud on title. Subsequently, on March 21, 1985, Mr. and Mrs. Grant demanded return of their $1,000 deposit. Mr. Martek's office manager, who worked under Mr. Martek's supervision, disbursed the $1,000 deposit to pay interest expenses of the developer, expenses which were not in any way an expense of the Grant's contract for sale. Mr. Martek asserted that he reviewed the disbursements from the escrow account every week and that he was in Boca Raton during this period, and not physically in the office. He discovered the disbursement after the fact. The disbursement was made to the developer by the office manager upon the request of the attorney for the developer. The office manager did not contact Mr. Martek before making the disbursement. Mr. Martek allowed his office manager to make disbursements from escrowed deposits without his prior review and approval. Mr. Martek requested an escrow disbursement order from the Florida Real Estate Commission, and that request was denied by letter dated June 24, 1985, since there was no contract closing date. The letter advised Mr. Martek that he immediately use one of the other two alternatives under section 475.25(1)(d), Fla. Stat., to either arrange for arbitration or to place the dispute before a civil court. Mr. Martek received the letter of June 24, 1985. He did not initiate either alternative. The $1,000 deposit has not been returned to Mr. and Mrs. Grant.
Recommendation For these reasons, it is recommended that the Petitioner enter its final order finding the Respondent in violation of sections 475.25(1)(b) and (d), Fla. Stat., and suspending his real estate license for one (1) year. DONE and RECOMMENDED this 13th day of May, 1988, in Tallahassee, Florida. WILLIAM C. SHERILL, JR. 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 13th day of May, 1988. COPIES FURNISHED: Arthur R. Shell, Esquire DPR-Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Eric Martek 5118 South Federal Highway Stuart, Florida 33494 Darlene F. Keller Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida, 32802 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether or not Respondents' Florida real estate licenses should be disciplined for violation of Section 475.25(1)(b) F.S., by dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction; Section 475.25(1)(d)1. F.S., failure to account for or deliver funds; Section 475.25(1)(k) F.S., failure to maintain trust funds in their real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized; and Section 475.25(1)(e) and Rule 61J2-10.032(1) F.A.C. for failure to provide written notification to the Real Estate Commission upon receiving conflicting demands within 15 business days of the last party's demand or upon a good faith doubt as to who is entitled to any trust funds held in the broker's escrow account and failure to institute one of the settlement procedures as set forth in Section 475.25(1)(d)1., F.S. within 15 business days after the date the notification was received by the Division.
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, in particular, Section 20.165, F.S., Chapters 120, 455, and 475, F.S. and the rules promulgated pursuant thereto. The Respondent Norman Rivers, Jr. is and was at all times material hereto a licensed real estate broker, issued license number 0189212 in the accordance with Chapter 475, F.S. The last license issued was as a broker c/o Route 1, Box 344, Alachua, Florida 32615. Respondent Norman Rivers Jr., Realty, Inc. is and was at all times material hereto a corporation registered as a Florida real estate broker having been issued license number 0214407 in accordance with Chapter 475, F.S. The last license issued was at the address of Route 1, Box 344, Alachua, Florida 32615. At all times material hereto, Respondent Norman Rivers, Jr. was licensed and operating as qualifying broker and officer of Respondent Norman Rivers Jr., Realty, Inc. On December 5, 1994, Respondent showed Charles E. and Elizabeth A. Smith (husband and wife) a tract of land located in Dixie County, Florida. Afterward, Respondent Norman Rivers, Jr. sent a $57,500 offer to Charles E. Smith for his signature. On December 7, 1994, Mr. Smith signed the offer and forwarded it with a $2,875 deposit to the Respondents. The next day, the Seller, Ed Dix, accepted the Smiths' offer. The contract provided that if the deal did not close on December 23, 1994, "...if the said Buyer fails to perform the covenants herein contained within the time specified, therefore said deposit made by the Buyer may be forfeited at the option of the Seller, as liquidated damages, upon 10 days' notice to the Buyer, and one half thereof shall be retained by or paid to said Realtor and the remainder to the Seller, unless because of expense incurred the latter shall agree or had agreed in writing to a greater percentage being paid to the Realtor,..." The property sale did not close on December 23, 1994. At some point in time, Mr. Smith conversed with Respondent Rivers by telephone and told him he could not afford to purchase the property since a greater amount would have to be financed and because his wife could not be persuaded to go through with the deal. He told Mr. Rivers that he would like Mr. Rivers to return any amount remaining in excess of Mr. River's expenses but that Mr. Rivers could retain his expenses. Mr. Rivers told Mr. Smith that his expenses had used up the entire $2,875 binder. Mr. Smith accepted this representation. He testified that he "considered the issue closed" at that point. Neither Mr. or Mrs. Smith made subsequent demands for all or part of the binder. The administrative complaint herein was urged quite some time later by Mrs. Smith. The Respondents affirmatively demonstrated that Mr. Rivers' business practice from 1991 to 1995 and continuing to date, is to promptly refund deposits upon a Buyer's request, if the Seller agrees. The significance of this evidence is that if a clear demand for refund or audit had been made by Mr. Smith, Respondents probably would have made some accounting and refund. In this case, Mr. Rivers did not do so because he did not consider that he had a clear- cut request to refund a deposit. Despite Mr. Smith's testimony that his final telephone conversation with Mr. Rivers as related above in Finding of Fact 11, occurred before Christmas 1994 and Mrs. Smith's deposition testimony that Mr. Smith's and Mr. River's phone conversation occurred on December 21, 1994, before the agreed closing date all other documentary evidence and credible testimony points to the conversation occurring in mid-January 1995. The parties stipulated that on 12/21/94, Alachua County Abstract Company sent the closing package by UPS overnight delivery to Mr. and Mrs. Smith. This package was received by Mr. and Mrs. Smith on 12/22/94. The significance thereof is that Mrs. Smith testified that the telephone call made by her husband in her presence from their home to Mr. Rivers cancelling the contract and demanding the return of their deposit occurred the night before the day they received the closing package, or December 21, 1996. However, the Smiths' long distance telephone records from 12/7/94 to 1/31/95 reveal that no long distance call was made from the Smith home to Mr. Rivers on 12/21/94 or any date other than 12/7/94, the day Mr. Smith initially signed and faxed the contract to Mr. Rivers. It is noted that at one point Mr. Smith wobbled and testified that Mr. Rivers telephoned him for the final phone conversation at some time prior to Christmas 1994. This is contrary to Mrs. Smith's testimony and Respondents' telephone records do not show that Mr. Rivers telephoned the Smith home on December 21, 1994, either. Between 12/30/94 and 01/17/95, Respondents' long distance telephone bills show charges for 15 calls to Mr. Smith's several work phone numbers and the home phone number. In Mr. Rivers' words, "I chased him like a hound," to find out what was going on, including when the deal could close. This demonstrates Mr. Rivers' continued belief after December 21, 1994 that the contract was still going to close and contradicts Mrs. Smith's testimony that Mr. Smith had orally cancelled the contract and demanded the return of his deposit on December 21, 1994. It further contradicts Mr. Smith's testimony this conversation occurred sometime before Christmas, 1994. The agency stipulated that Seller Dix and Norman Rivers, Jr. entered into an agreement whereby any binder forfeiture resulting from the Smiths' failure to close on December 23, 1994 would be used by Norman Rivers, Jr. and Norman Rivers, Jr. Realty, Inc. to cover their expenses incurred in marketing Mr. Dix's property. Respondents established that prior to the contract signing on December 7, 1994, they had expended at least $3,339.00 in advertising in order to market and sell Mr. Dix's property. There is no evidence Mr. Smith ever objected to paying the advertising costs incurred by Respondents or even inquired what Mr. Rivers' expenses were. Mr. Rivers did not remove any amount related to Mr. and Mrs. Smith from his escrow account before January 16, 1995. Then he did so by three checks made out to Norman Rivers Jr. Realty, Inc. Mr. Smith and Mr. Rivers concur that Mr. Smith made no specific demand for an audit of Respondents' expenses. Real Estate Commission Investigator Russell Lambert audited Respondents' accounts. He testified he "found no violations."
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the administrative complaint herein. RECOMMENDED this 2nd day of December, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 2nd day of December, 1996. COPIES FURNISHED: Steve W. Johnson, Esquire Department of Business & Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772 James F. Gray, Esquire Post Office Box 7100 Gainesville, Florida 32605 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900
