Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. During times material herein, Respondent, James W. Weiss, was a registered real estate broker and holds License No. 0094382. During March, 1980, Respondent, a real estate broker who purchases numerous properties under distress sales, learned that Frank and Evelyn Harvey were behind on mortgage payments on their home which is located at 11031 Duval Road, Jacksonville, Florida. Respondent offered to protect the Harvey's equity by taking their residence in trade for a home Respondent owned on Monaco Street in Jacksonville. Respondent considered the value of the Monaco Street residence to be approximately $25,000.00 and it had a mortgage balance of approximately $13,000.00 outstanding. Respondent and the Harvey's entered into an agreement which was prepared by Respondent's attorney and executed by the parties on March 27, 1980. (Petitioner's Exhibit No. 1) Under the terms of the agreement, the Harvey's were to exchange their property for the property owned by the Respondent located on Monaco Street. Additionally, Respondent received an option to purchase a lot which abutted the rear of the lot on which the Harvey's home was located. Subsequent to execution of the agreement, Evelyn Harvey, who was then divorced from Frank Harvey, examined the property owned by Respondent located on Monaco Street and decided that that house was not worth Respondent's stated value of $25,000.00 and that it required numerous repairs which she could not afford. After Ms. Harvey expressed her dissatisfaction to Respondent about the Monaco Street residence, Respondent agreed that he would pay the Harvey's an equity balance of approximately 10,000.00 instead of transferring the possession of the Monaco Street residence. 1/ During these discussions, Ms. Harvey represented to Respondent, and the evidence contained in the written agreements reflect that, according to Ms. Harvey, the outstanding mortgage balance remaining on the property the Harveys owned did not exceed $21,000.00. (See Petitioner's Exhibit 1) On March 31, 1980, Respondent prepared a Warranty Deed whereunder the Harveys transferred their residence to the Respondent. Additionally, Respondent prepared an option agreement for the purchase of the rear lot which abutted the Harveys' residence. (Petitioner's Exhibit 2 and Respondent's Exhibit 1) On March 31, 1980, Respondent ordered a title insurance binder from Chicago Title Insurance Company. Evidence reveals that when the Harveys transferred the Duval Road residence to Respondent, there was an outstanding mortgage dated June 27, 1973, from Frank and Evelyn Harvey to DAC Corporation which had an approximate balance of $21,400.00. Additionally, evidence revealed that the real property taxes for 1979 were due in the gross amount of $226.92. Evidence also indicates that there was an outstanding mortgage from the Harveys to City Consumer Services of Florida, Inc., in the approximate balance of $12,000.00. Finally, there was an unsatisfied final judgment filed July 30, 1974, from the Harveys in favor of M. A. Baer and Wayne Thompson d/b/a Physician's Service Bureau in the amount of $92.50 plus costs. Armed with these facts, Respondent confronted Ms. Harvey about these matters and the upshot of this confrontation is that Respondent advised Ms. Harvey that he was only interested in proceeding with the transaction if Ms. Harvey satisfied the outstanding delinquencies which exceeded $21,000.00, as agreed upon. Ms. Harvey indicated that she was unable to satisfy these outstanding obligations, whereupon Respondent offered to satisfy these obligations and pay Ms. Harvey any outstanding amounts which represented the difference in their earlier agreement. Respondent indicated to Ms. Harvey that the benefit to her in such a transaction would be that her credit history would not be adversely affected by a foreclosure proceeding which was threatened by DAC Corporation should the outstanding delinquencies not be satisfied by April 1, 1980. (See letter dated March 25, 1980, from DAC Corporation received as Respondent's Exhibit 9) Respondent, having determined that the parties had reached an agreement, as reflected by the Warranty Deed executed by the parties on March 31, 1980, proceeded to pay the delinquent mortgage payments and back taxes on the subject property and recorded the Warranty Deed. (See Petitioner's Exhibit 2 and Respondent's Exhibits 11 through 13) On July 27, 1980, Respondent obtained a purchase contract from Arthur and Marilyn Hopkins. As a result of that purchase contract from the Hopkins, the transaction closed on September 12, 1980, and two Warranty Deeds transferring the property from the Harveys to Respondent and from Respondent to the Hopkins were recorded on September 17, 1980. The Harveys and Hopkins, along with Respondent, were present at the subject closing. At the end of the closing, Ms. Harvey inquired of Respondent of the outstanding monies due her, whereupon Respondent told her that he would immediately remit to her monies due if she would follow him to his office. At Respondent's office, Ms. Harvey was given three checks for the outstanding monies due her plus a check for certain pool and lawn equipment. (Respondent's Exhibits 3, 4, 5, 6 and 7) While the Administrative Complaint alleges that the Respondent failed to nay the Harvey's approximately $10,000.00 as provided in an agreement between Respondent and the Harveys, the evidence revealed otherwise. In this regard, under the first written agreement entered between the parties, the Harveys represented that the outstanding mortgage from their residence approximated $21,000.00 whereas the outstanding mortgages due were in excess of $30,000.00. Evidence also reveals that Respondent indicated his willingness to proceed with the subject transaction if, and only if, the Harveys satisfied the outstanding obligations which represented amounts in excess of the $21,000.00. The Harveys were either unwilling or unable to satisfy these obligations. Noteworthy is the fact that Respondent, after learning of these outstanding obligations in excess of the claimed $21,000.00 mortgage balance by the Harveys, obtained a warranty deed to protect the monies which he found it necessary to expend to prevent the Harveys' residence from foreclosure proceedings. (See Warranty Deed dated and recorded from the Harveys to Respondent on March 31, 1980) It was also noted and the evidence reflects that while the Harveys contend that there was an agreement evidencing the fact that Respondent promised to pay Ms. Harvey approximately $10,000.00, no such agreement was produced and Petitioner amended the Administrative Complaint to reflect that there was no such agreement but rather that there were ongoing discussions in this regard. In this connection, the evidence tends to support Respondent's version which is in keeping with other documentary evidence and agreements and his credible testimony which was supportive of other record evidence. That being so, to the extent that Ms. Harvey's testimony differs from testimony offered by Respondent in these proceedings, Respondent's testimony is considered more credible and Ms. Harvey's testimony, to the extent that it differs from testimony offered by Respondent, is not credited. (Tr. pp. 39, 43, 44, 47 and 48) Ms. Harvey admits that she was "upset" about the transactions and could not remember the specifics of the various documents which she entered. Finally, an examination of the affidavit given by Ms. Harvey to Investigator Robert Maxwell on January 19, 1981, reflects that she told Respondent at the closing on September 12, 1980, that she would not sign any document unless she was paid before signing. (Page 2 of Respondent's Composite Exhibit No. 2) The evidence adduced during the hearing from witnesses Beardsley, Hopkins and Respondent, fails to support Ms. Harvey's claim in this regard.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate. Petitioner is also responsible for regulating the practice of real estate on behalf of the state. Respondent is licensed as a real estate broker under license number 0602015. The last license was issued to Respondent as a broker t/a Oliver Realty and Management, 2431 Lot a Fun Avenue, Winter Park, Florida. On August 23, 1994, Respondent was licensed as a real estate sales person. He was employed by Mr. Kevin Jon Pribell, a licensed real estate broker. On August 29, 1994, Mr. Pribell terminated Respondent's employment. On August 30, 1994, Mr. Pribell delivered a copy of a termination form to Respondent at Respondent's residence. Mr. Pribell agreed to compensate Respondent on all transactions that were pending on or before the date of termination. The First Transaction On August 23, 1994, Respondent made an offer to purchase residential property for $80,500. Mr. Bruce and Mrs. Benitta Tegg owned the property (the "sellers"). The details of the offer were described in a standard contract for sale and purchase approved by the Florida Association of Realtors and the Florida Bar Association and in an attached addendum. The addendum required the sellers to hold a purchase money first mortgage of $80,500, amortized over 12 years at an annual interest rate of 8.5 percent. The addendum stated that the sellers were to receive $29,000 at closing as payment of the first 48 months payments. The sellers would then receive 30 equal monthly installments of $893.60, which would total $26,808. The unpaid balance was due in a balloon payment of $46,980.47 at the end of 78 months. The total amount to be paid the sellers, including interest, was $102,788.47. Respondent included a $1,000 earnest money deposit with the contract for sale and purchase. The sellers accepted Respondent's offer. Closing was set for September 6, 1994. 2/ On September 1, 1994, Respondent submitted a document to the sellers for their acceptance and signature. The document was entitled, "Partial Purchase/Cash Flow Agreement" (the cash flow agreement"). Respondent never mentioned the cash flow agreement to the sellers as part of the original offer. The cash flow agreement required the sellers to assign the mortgage of $80,500 to Orange Hearing Aid Center Employee Pension Plan (the "pension plan"). Respondent would have no money invested in the property initially. The initial payment of $29,000 would be a loan from the pension plan to Respondent. Respondent would repay the pension plan over time. The loan from the pension plan to Respondent was to be secured by the sellers' property. In the event Respondent defaulted on the loan from the pension plan, the sellers' property would be sold. The sale proceeds would first pay off the loan from the pension plan to Respondent. Any remaining sale proceeds would go the sellers. The sellers refused to accept Respondent's amendment of the original offer. Respondent defaulted on his original offer. The transaction did not close. The sellers' real estate agent divided Respondent's $1,000 earnest money deposit with the sellers because Respondent defaulted on the original offer accepted by the sellers. Respondent did not attempt to engage in "equity skimming." 3/ The sellers were not required to transfer title to Respondent prior to receiving $29,000. Respondent would not receive any other equity in the property. 4/ The cash flow agreement had the effect of converting Respondent's obligation on the purchase money mortgage from recourse to non-recourse debt. 5/ It also had the effect of subordinating the purchase money mortgage to the $29,000 loan to Respondent. 6/ Respondent is not guilty of violating Section 475.25(1)(b). Respondent is not guilty of dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction. Respondent disclosed the terms of the cash flow agreement to the sellers approximately six days before the scheduled closing. The sellers had adequate time to review the proposal. They chose to reject it. The sellers received approximately $500 after Respondent's default. That amount was reasonable compensation for taking their property off of the market for two weeks. The Second Transaction On September 1, 1994, Respondent offered to purchase a residential property owned by Ms. Gloria Alexander. Respondent offered to purchase the property for $114,500. Ms. Alexander accepted the offer. On September 1, 1994, Respondent was not licensed as a broker. Respondent's employing broker had terminated Respondent's employment two days before the contract for the second transaction was executed. The second transaction was not pending on or before August 29, 1994, when Respondent was still employed by Mr. Pribell, and Mr. Pribell was not legally entitled to a commission on the second transaction. In an abundance of caution, Respondent indicated on the contract that the selling broker was Mr. Pribell. Respondent acted in his own behalf in the second transaction. He was the buyer, i.e., a principal and not an agent for a principal. Respondent indicated on the written offer that he was acting as the buyer's agent. Respondent made a good faith attempt to disclose on the contract that he had been terminated from Mr. Pribell's employment and was not acting as the agent of the selling broker. Respondent did not deceive anyone and did not intend to do so. Respondent did not violate Sections 475.42(1)(a) and 475.25(1)(e) by operating as a broker without a valid broker's license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 475.25(1)(b), 475.25(1)(e), and Sections 475.42(1)(a). RECOMMENDED this 14th day of August, 1996, in Tallahassee, 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 14th day of August, 1996.
Findings Of Fact Petitioner is the state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Section 20.30, Florida Statutes, Chapters 120, 455 and 475, and the rules promulgated pursuant thereto. Respondent is a licensed real estate broker in the State of Florida having been issued license numbers 0487611 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was issued as t/a First Capital Realty & Investments, 3510 Biscayne Boulevard, Miami, Florida 33137. Hector F. Sehwerert, Petitioner's Investigator, conducted an office inspection and audit of Respondent's office and escrow accounts on or about November 19, 1990. The investigation disclosed that Respondent failed to maintain escrow reconciliation statements required by applicable law. Respondent commingled the escrow funds with his personal funds. On or about October 1, 1990, and November 3, 1990, Respondent received two earnest money deposits from purchasers of HUD properties in the respective amounts of $2,000.00 and $1,615.00. Respondent deposited the earnest money in the aggregate amount of $3,615.00 into his personal account number #012153441 maintained at Southeast Bank, N.A., which contained $11,926.49 in personal funds. Respondent has subsequently changed banks and has now opened an escrow account in accordance with applicable statutes and rules. Respondent failed to display the required office entrance sign on or about the entrance to his real estate office. The Respondent had moved his office some 30 days prior to the office inspection and the sign he had maintained at his previous office had not yet been moved. The sign had been moved and was displayed in front of Respondent's new office location at the time of the formal hearing.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a Final Order be issued and filed by the Florida Real Estate Commission finding the Respondent: Guilty of the allegations in the Administrative Complaint; Placing Respondent's real estate broker certifications, licenses, permits and registrations on probation for a period of one (1) year; and During such probationary period, requiring Respondent to provide copies of monthly escrow account statement/reconcilia- tions to: James H. Gillis, Senior Attorney, Division of Real Estate, Legal Section, 400 West Robinson Street, Orlando, Florida 32801-1772. Additional terms of the probationary period, including broker education, shall be determined by the Florida Real Estate Commission; provided that such probationary terms shall not require Respondent to retake any state licensure examination as a result of these proceedings or the resulting administrative action. In accord with Florida Administrative Code Rule 21V-24.001(2)(a), it is further recommended that, as a part of the probationary conditions, Respondent appear before the Commission at the last meeting of the Commission preceding termination of probation. DONE and ENTERED this 15th day of July, 1991, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1991.
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Respondent, Naomi N. Radcliff, is licensed in Florida as a real estate broker (license No. 0369173) and has been at all times material to the Administrative Complaint. On December 2, 1987, Respondent submitted a Request for License or Change of Status form which sought to cancel the license. Thereafter, the Department reclassified Respondent as an inactive broker. In July, 1986, Randy Mangold and his wife entered into a contract to purchase real property located in Indian River Estates. Naomi Radcliff was the real estate agent who handled the transaction on behalf of the Mangolds. The Mangolds' contract provided for occupancy prior to closing with a security deposit for the rental in the amount of $1500. This amount was paid to Respondent. At closing the $1500 security deposit was to be applied to the buyers' closing costs. The Mangolds rented the home for a year and attempted to obtain financing for the purchase. When their mortgage application was denied, they elected to vacate the property. After they vacated the property, the Mangolds requested the return of the $1500 security deposit. Demands were made on Respondent who refused to return the deposit despite the fact that the Mangolds had fully paid all rents owed and had left the house in good condition. Finally, the Mangolds sued Respondent in the St. Lucie County Court and obtained a judgment for the $1500 security deposit. Respondent has not satisfied the judgment. At one point Respondent did give the Mangolds a check for $500 which was returned due to insufficient funds in the account. In December, 1986, Respondent acted as a rental agent for Walter Zielinski, an out-of-state owner. Mr. Zielinski owned two houses in Port St. Lucie, one of which was located at 941 Fenway. In early December, 1986, Respondent advised Mr. Zielinski that the tenants had left the home at 941 Fenway and that the unit was in fairly good condition. Sometime later in the month, Mr. Zielinski discovered the house was empty but that it had been damaged. There were holes in the wall in the utility room approximately two feet in diameter. The flooring in the utility room and kitchen was ripped up. There was a hole in the wall in the master bedroom. More important to Mr. Zielinski, the house was unsecured because the garage door latch was broken and the house was accessible through the garage. After discovering the unit was at risk for additional damage, Mr. Zielinski attempted to contact Respondent but numerous calls to Respondent, her place of work, and to a former employer proved to be unsuccessful. Finally, Mr. Zielinski obtained another real estate agent to represent the 941 Fenway home. The new agent, Cathy Prince, attempted to obtain from Respondent the keys, the security deposit, and the rent money belonging to Mr. Zielinski. In January, 1987, Mr. Zielinski came to Florida from Illinois to take care of the rental problems. Mr. Zielinski incurred expenses totalling $876.74 to repair the damages to 941 Fenway. Also, Mr. Zielinski wanted to collect the rents owed by Respondent for his other property and have the security deposit for the second property transferred to the new agent. Respondent issued a personal check for the security deposit which was returned for insufficient funds. A second personal check paid to Mr. Zielinski for the rent owed was accepted and cleared. According to Mr. Zielinski, Respondent did not maintain an office where he could find her during the latter part of December, 1986 through January, 1987. In March, 1987, the security deposit for Mr. Zielinski's second rental was paid to the new agent. The check was issued by Respondent's mother. Respondent never personally returned any calls to the new agent. In June, 1986, Alyssa and Jeffrey Maloy entered into a contract to purchase a house. Respondent handled the real estate transaction for the Maloys. The closing was to be December 9 or 10, 1986. Respondent held monies that were required to complete the Maloy closing. Respondent attended the closing but the check tendered to the closing agent, Chelsea Title, was drawn on an trust account which had been closed. The closing agent discovered the problem and requested sufficient funds. Respondent left the closing and returned some hours later with new checks drawn on another account. After checking with the bank, it was again discovered that the funds in the account were insufficient to cover the amount needed for closing. Finally, some days later the Respondent's brother delivered a certified check to cover the amount needed to close the Maloy transaction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulation, Florida Real Estate Commission enter a Final Order suspending the Respondent's real estate broker's license for a period of five years. DONE and RECOMMENDED this 12th day of July, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 12th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4631 Rulings on Petitioner's proposed findings of fact: Paragraphs 1-3 are accepted. With regard to paragraph 4, with the exception of the date referenced (November, 1986) the paragraph is accepted. Paragraph 5 is rejected a hearsay evidence unsupported by direct evidence of any source. The first sentence of paragraph 6 is accepted. The second sentence calls for speculation based on facts not in the record and is, therefore, rejected. Paragraphs 7-11 are accepted. With regard to paragraph 12, the first four sentences are accepted; with regard to the balance, the Respondent's brother did deliver funds to allow the Maloy transaction to close however the source of the funds is speculation based upon hearsay unsupported by the record. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Darlene F. Keller, Executive Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Naomi N. Radcliff 1420 Seaway Drive Fort Pierce, Florida 33482
The Issue Whether Respondents committed the offenses as alleged in the Administrative Complaint and the penalties, if any, which should be imposed.
Findings Of Fact Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and prosecuting complaints against real estate professionals, including real estate brokers and their qualified corporations. Respondent Edward J. Zibro is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0359349 in accordance with Chapter 475, Florida Statutes. Respondent Ed Zibro 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 0251315 in accordance with Chapter 475, Florida Statutes. Respondent Edward J. Zibro is now and was at all times material hereto an officer of and qualifying broker for Respondent Ed Zibro Realty, Inc. The Respondents' offices are now and were at all times material hereto located at 2803 East Commercial Boulevard, Suite 202, Fort Lauderdale, Florida. Respondents and Pamela L. Mereider, d/b/a/ Earthrise Realty, Inc. (Mereider) submitted to arbitration through the Fort Lauderdale Area Board of Realtors, Inc. a dispute involving the right of Mereider to share in a commission check which had been deposited in Respondents' escrow account. By an award entered December 4, 1987, Respondents were ordered by the arbitration board to pay Mereider the sum of $1,800.00 within ten days of the date of the award. Respondents had not paid the award at the time of the final hearing. On February 15, 1989, the County Court in and for Broward County, Florida, issued a final judgment ordering the Respondents to pay to Mereider the sum of $1,800.00 plus arbitration costs of $100.00 and court costs of $58.00. This final judgment was based on the arbitration award dated December 4, 1987, which the Court found to be binding on the parties. Respondents had not satisfied the final judgment at the time of the final hearing in this proceeding. On November 13, 1987, Respondents, as agents for the seller, obtained a contract for the purchase of Crystal Lakes Chevron Station by Werner Hatzelhoffer (Hatzelhoffer). Hatzelhoffer, as buyer, placed an $11,000.00 deposit in trust with Respondents. On or about March 16, 1988 Hatzelhoffer's bank was notified that his application for financing this transaction through the Small Business Administration had been rejected. Hatzelhoffer did not obtain financing and the transaction did not close. On August 17, 1988, Hatzelhoffer requested in writing that Respondents return the $11,000.00 deposit with interest. Based on the terms of the contract executed by the parties, Respondents and the seller of the property disputed that Hatzelhoffer was entitled to a refund of the deposit. Hatzelhoffer later requested the return of the deposit money by telephone and went to Respondent's office in person to demand the refund of the deposit. On October 25, 1988, Hatzelhoffer's attorney made written demand of Respondents for the return of Hatzelhoffer's deposit. On April 21, 1989, Respondent Edward J. Zibro advised Petitioner for the first time of the conflicting demands on the escrow deposit and requested an escrow disbursement order from Petitioner. Petitioner opened an escrow disbursement case and, on May 2, 1989, Gerri E. Barnoske, a complaint analyst for Petitioner, requested in a letter certain information from Respondents relating to the escrow dispute. Respondents did not receive this letter. On June 2, 1989, Ms. Barnoske wrote to Respondents a second time. This second letter advised that the previously requested information had not been received and that failure to cooperate could result in disciplinary proceedings being brought. The second letter also advised Respondents to let Petitioner know if the matter had been settled. The dispute involving Mr. Hatzelhoffer's deposit was amicably resolved on May 30, 1989. On May 8, 1989, the seller and his wife executed an agreement which released any claim they may have had to the escrowed funds and which authorized Respondents to negotiate a settlement with Hatzelhoffer. Respondents were also authorized by the release instrument executed by the seller on May 8, 1989, to retain as their commission for the failed transaction any sums they could get Hatzelhoffer to agree was due the seller. As a result of the settlement, Hatzelhoffer was reimbursed $6,500.00 and Respondents retained $4,500.00. Upon receiving Ms. Barnoske's letter dated June 2, 1989, Respondent Edward J. Zibro advised Ms. Barnoske that he had not received her letter dated May 2, 1989. He further advised that the escrow dispute had been settled and enclosed a statement signed by Mr. Hatzelhoffer on May 30, 1989, which acknowledged that the matter had been resolved. On June 22, 1989, Petitioner filed an Administrative Complaint against Respondents which contained four counts. Count I and Count II charged Respondent Edward J. Zibro and Respondent Ed Zibro Realty, Inc., respectively, with having failed to account and deliver a share of a commission in violation of Section 475.25(1)(d), Florida Statutes, based on the dealings with Mereider. Count III and Count IV charged Respondent Edward J. Zibro and Respondent Ed Zibro Realty, Inc., respectively, with having failed to account and deliver a deposit in violation of Section 475.25(1)(d), Florida Statutes, based on the dealings with Hatzelhoffer. Respondents denied the allegations of the Administrative Complaint and timely requested a formal hearing. This proceeding followed.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that Department of Professional Regulation, Florida Real Estate Commission enter a final order which finds as follows: Respondent Edward J. Zibro guilty of violating the provisions of Section 475.25(1)(d), Florida Statutes, as alleged in Count I of the Administrative Complaint; Respondent Ed Zibro Realty, Inc. guilty of violating the provisions of Section 475.25(1)(d), Florida Statutes, as alleged in Count II of the Administrative Complaint; Respondent Edward J. Zibro guilty of violating the provisions of Section 475.25(1)(d), Florida Statutes, as alleged in Count III of the Administrative Complaint; and Respondent Ed Zibro Realty, Inc. guilty of violating the provisions of Section 475,25(1)(d), Florida Statutes, as alleged in Count IV of the Administrative Complaint. IT IS FURTHER RECOMMENDED that the final order entered by Petitioner assess administrative fines against Respondents as follows: Against Edward J. Zibro in the amount of $500.00 for the violation of Count I of the Administrative Complaint. Against Ed Zibro Realty, Inc. in the amount of $500.00 for the violation of Count II of the Administrative Complaint. Against Edward J. Zibro in the amount of $500.00 for the violation of Count III of the Administrative Complaint. Against Ed Zibro Realty, Inc. in the amount of $500.00 for the violation of Count IV of the Administrative Complaint. IT IS FURTHER RECOMMENDED that the final order entered by Petitioner suspend the licenses and registration of the Respondents for a period of six months or until such time as the administrative fines are paid and the final judgement in favor of Pamela L. Mereider, d/b/a Earthrise Realty, Inc. is satisfied, whichever occurs first. DONE AND ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-4205 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 2 and 4 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraphs 3 and 4 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 9 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 11 are rejected as being unnecessary to the result reached. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 9 of the Recommended Order. The proposed findings of fact in paragraph 16 are adopted in material part by paragraph 9 of the Recommended Order. The proposed findings of fact contained in the first sentence of paragraph 17 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact contained in the second sentence of paragraph 17 are rejected as being subordinate to the findings made in Paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 18 are adopted in material part by paragraphs 10 and 12 of the Recommended Order. The proposed findings of paragraph 19 are rejected as being unnecessary to the results reached. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Edward Zibro Ed Zibro Realty, Inc. 2803 East Commercial Boulevard Suite 202 Fort Lauderdale, Florida 33308 Darlene F. Keller Division Director Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Vickie Ann Hay is, and at all times material to this case was, a licensed real estate broker in the State of Florida, license #1483791. The most recent license was issued as a broker-salesman to AAIM Realty Group, Inc., 38 Homestead Road, Lehigh Acres, Florida 33936-6646. In or about March of 1990, Respondent Hay, while licensed and operating as a real estate salesman in the employ of C. Bagins First, Inc., was contacted by Vicki Wright, daughter of Respondent Regas. Ms. Wright told Respondent Hay that Ms. Wright had referred buyers interested in purchasing numerous vacant lots. During March and April of 1990, Respondent Hay used her father's name as a "straw buyer" and prepared approximately 173 contractual offers to purchase vacant lots from various owners at various prices. The offers recited that the "straw buyer' had placed in escrow a $100 deposit with Fleetwood Title Corporation with each offer to purchase. There were no such deposits made. Some of the offers were accepted verbally and others were accepted in writing by the sellers. With 173 offers being made, there should have been a total escrow deposit of $17,300 made in connection with the offers to purchase. There were no deposits made. Respondent Hay knew or should have known that no deposits were made. Respondent Hay failed to properly advise the sellers and other real estate licensees, at the time the offers to purchase were presented, that the deposits had not been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order reprimanding Respondent Vickie Ann Hay, placing the licensee on probation for a period of one year, imposing a fine of $1,000, and requiring Respondent Hay to complete a 45 hour salesman's postlicensing course. DONE and ENTERED this 2nd day of December, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 2nd day of December, 1991. APPENDIX TO RECOMMENDED ORDER Respondent Vickie Ann Hay did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order, except as follows: 3. At hearing, the Petitioner amended the allegation to state that Ms. Wright "referred" buyers interested in purchasing the lots. 6-7. Rejected, irrelevant. The allegations related to Respondent Regas were severed and are not relevant to this Recommended Order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven W. Johnson, Esquire P. O. Box 1900 Orlando, Florida 32802-1900 (407) 423-6134 Ms. Vickie Ann Hay 811 Fireside Court Lehigh Acres, Florida 33936 (813) 368-6444 Robert L. Ratliff, III, Esq. 2359 Periwinkle Way Sanibel Island, Florida 33957
The Issue The issue is whether Mr. Powell should be disciplined for irregularities in the handling of an escrow deposit by a real estate firm for which he was the qualifying broker.
Findings Of Fact The Respondent, Willie Powell, was at all relevant times a licensed real estate broker in the State of Florida, holding license number 0070494. Mr. Powell was the sole qualifying broker of Future Investments & Development II Co., Inc., trading as ERA Thompkins and Saunders Realty Company (hereafter, T & S), 2734 N.W. 183rd Street, Suite 206, Miami, Florida 33056. On or about November 12, 1990, Guillermo Castillo, a licensed real estate broker for Emerald Enterprises, Inc., received a listing agreement from Horace B. Miller to sell residential property (a duplex) owned by Miller located at 2331 N.W. 103rd Street, Miami, Florida. The property was listed with the Multiple Listing Service. On or about February 27 or 28, 1991, Mr. Castillo received a telephone call from Willie J. Thompkins of T & S saying he wanted to show the Miller property to a prospective buyer. On or about February 28, 1991, Mr. Castillo received through the mail slot at his office a written offer from George R. Howell of Dorchester, Massachusetts, to buy the Miller property, with a business card of Jerry Saunders of T & S. On or about March 6, 1991, Guillermo Castillo met with Horace Miller to review the Howell offer. At Miller's request, Castillo made some changes to the contract to reflect that Miller was selling the duplex in "as is" condition. Miller signed the contract and initialed the changes, and Mr. Castillo signed the contract on behalf of Emerald Enterprises, and called Willie J. Thompkins to tell him the contract had been signed. The next day, Mr. Castillo went to the office of T & S and dropped off the contract for the buyer to consider the seller's changes. A day or two later, a representative of T & S telephoned Guillermo Castillo and told Mr. Castillo that the buyer had accepted the seller's changes to the contract; Mr. Castillo then notified Miller. Mr. Castillo later received from T & S the signed contract with Mr. Miller's changes initialed by Mr. Howell. The contract was also signed by Mr. Thompkins of T & S. The contract called for a $1,000 deposit to be held in escrow by T & S (Exhibit 5, Paragraph IIa). Guillermo Castillo contacted T & S to check on the progress of the sale. He learned that J.P. Mortgage was handling the buyer's mortgage loan application. Castillo contacted J.P. Mortgage and was told that the loan was proceeding normally. After the contractual closing date of April 29, 1991, had passed without the closing taking place, Castillo contracted J.P. Mortgage again, but was told that they were no longer processing the loan. Castillo requested that J.P. Mortgage send him a letter to that effect, and he received a letter dated May 2, 1991, stating that J.P. Mortgage was withdrawing as the lender because the buyer failed to return the mortgage loan application. Castillo informed Horace Miller of the situation and Miller instructed Castillo to write to T & S making a claim to the buyer's deposit under the contract of sale. On May 4, 1991, Castillo sent a letter to T & S claiming the deposit for the seller. Paragraph Q of the contract provided for the seller to retain the buyer's deposit as liquidated damages if the buyer failed to perform the contract. On or about May 9, 1991, Guillermo Castillo received from Mr. Thompkins, the manger of T & S, a letter dated May 1, 1991, but postmarked May 6, 1991, ". . . requesting that the . . . file be cancelled" due to ". . . communication problems with . . . Mr. Howell," and citing unsuccessful attempts to contact Howell by telephone and by mail. When Castillo received that letter he contacted T & S to point out the seriousness of the matter and to press for forfeiture of the buyer's deposit. On May 9, 1991, Castillo received a telefax from Mr. Thompkins of T & S stating that the Howell deposit check had been returned for insufficient funds and attaching a copy of the returned check. Prior to his receipt of this telefax, Castillo had not taken any independent steps to verify whether T & S had actually received the Howell deposit. He had relied on the contract, which had been executed by a licensed salesman and believed he did not require further verification that the escrow deposit had been made. Neither Mr. Castillo nor Mr. Miller dealt with the Respondent, Mr. Powell, at any time concerning the sale of the Miller property. T & S received George Howell's $1,000 deposit in the form of a check on March 4, 1991, drawn on a Massachusetts bank and deposited it in its account with First Union National Bank which was used as the escrow account, account number 15462242336, on March 5, 1991. The check was charged back to the account twice, on March 11, 1991, and on March 26, 1991. Mr. Powell was a signatory on that escrow account. After Guillermo Castillo received the May 9, 1991, telefax, he notified Horace Miller. Mr. Miller had not taken any steps on his own to verify whether T & S had received the deposit because he had confidence in his broker to let him know right away if there were any problems with the sale. By May 9, 1991, Horace Miller had already incurred expenses preparing the property for closing, and had lost rent by terminating a tenancy in the property. Because the transaction never closed, Mr. Miller sustained financial damage, some of which he might have avoided if he had been notified earlier of the buyer's dishonored escrow deposit check. On or about May 28, 1991, Miller filed a complaint with the Department of Professional Regulation, which Sidney Miller investigated. He found that the person introduced to him during his investigation at T & S as Willie Powell was not actually the Respondent. In March 1991, Mr. Powell had not seen the bank statements for the T & S escrow account for several months, and had not signed the written monthly escrow account reconciliation statement for the month of October 1990 or for any subsequent month. Mr. Powell was serving as the qualifying broker of T & S for a salary of $75 per month and no commissions. He was not active in the management of the firm. He would come to the office of T & S approximately three days per week to check files and sign listing agreements, and he would call in to see if there were any problems, messages or documents to sign. He essentially loaned his brokers' license to those who operated T & S as an accommodation because he had known the Thompkins family for 25 years. Mr. Powell argues in his proposed order that "the adequacy of [Mr. Powell's] monthly reconciliations were impeded by frauds perpetrated upon him by persons at [T & S]" (PRO at page 9, paragraph 5). It is obvious that there were problems at T & S, since a person there misrepresented himself to the Department's investigator as Mr. Powell. The full extent of the misconduct there is unclear. There is no proof in this record that salespersons at T & S had fabricated escrow account statements for Mr. Powell. Had Mr. Powell proven that he performed monthly reconciliations with what turned out to be falsified records of T & S, his argument might be well taken. The record, unfortunately, shows that no reconciliations were done. Had Mr. Powell done them, the problem here should have been uncovered.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued finding Willie Powell guilty of violating Section 475.25(1)(b), Florida Statutes, finding him not guilty of violating Section 475.25(1)(d), Florida Statutes, and taking the following disciplinary action against him: Issuance of a reprimand. Imposition of an administrative fine in the amount of $1,000 to be paid within 30 days of the date of the final order adopting the recommended order. Placement of the license of Mr. Powell on probation for a period of one year beginning on the date of the final order and providing that during that period he shall provide satisfactory evidence to the Florida Department of Professional Regulation, Division of Real Estate, Legal Section, Hurston Building, North Tower, Suite N-308, 400 West Robinson Street, Orlando, Florida 32801-1772, of having completion a 30-hour postlicensure education course in real estate brokerage management, in addition to any other education required of him to remain current and active as a real estate broker in the State of Florida, and that he be required to submit to the Commission during that year his monthly trust account reconciliations. Cf. Rule 21V-24.002(3)(i), Florida Administrative Code, on penalties for violation of Rule 21V-14.012(2), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of July 1992. WILLIAM R. DORSEY, JR. 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 day of July 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-0192 Rulings on Findings proposed by the Commission: Adopted in Findings 1 and 2. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. Adopted in Findings 7 and 8. Adopted in Finding 9. Adopted in Finding 12. Adopted in Finding 13. Adopted in Finding 11. Adopted in Finding 15. Rulings on Findings proposed by Mr. Powell: Adopted in Finding 1 with the exception of the license number. Adopted in Finding 3. Adopted in Finding 2. Adopted in Finding 4. Rejected as unnecessary. Adopted in Finding 5. Adopted in Finding 4. Adopted in Finding 6. Generally adopted in Finding 6. Implicit in Finding 10. Adopted in Finding 6. Adopted in Finding 6. Adopted in Findings 7 and 8. Adopted in Finding 9. Adopted in Finding 10. Rejected as subordinate to Finding 10. Adopted in Finding 13. Rejected as unnecessary, the reconciliation was not one done shortly following the month of March reconciling the account for March 1991. It was done during the investigation conducted by Mr. Miller and took place between approximately June 20 and July 10, 1991. Adopted in Finding 15. Rejected as unnecessary. Adopted in Finding 14. Rejected as unnecessary, or subordinate to Finding 10. Rejected as unnecessary. Rejected as unnecessary. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation Suite N-607 401 Northwest 2nd Avenue Miami, Florida 33128 Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156 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
The Issue Whether Respondents' license as real estate brokers in the state of Florida should be revoked, suspended or otherwise disciplined based upon the allegations of misconduct in the Administrative Complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent, Deering, was licensed as a real estate broker in the state of Florida, having been issued license number 0563366. At all times material to this proceeding, Respondent, Advantage, was licensed as a real estate broker, having been issued license number 0273342. At all times material to this proceeding, Respondent, Deering, was licensed and operating as the qualifying broker for Respondent, Advantage. On October 22, 1992, Petitioner conducted an office inspection and audit of Advantage. The audit reflected what appeared to be a shortage in Advantage's security deposit escrow account (Number 027000122700) in the amount of $580.00, calculated as $6,600.00 in total trust liability, but only $6,020.00 as a reconciled bank balance. The audit also reflected what appeared to be a shortage in Advantage's rental distribution escrow account (Number 27000121900) in the amount of $369.40, calculated as $3,174.82 in total trust liability, but only $2,805.42 as reconciled bank balance. The audit also reflected that Deering, as the qualifying broker, failed to sign and properly reconcile Advantage's escrow accounts by comparing the total trust liability with the reconciled bank balance of the escrow accounts for the months of September and October, 1992. Marie Deering, Respondent, Deering's, wife and a corporate officer of Respondent, Advantage, signed the reconciliation form for the months of September and October, 1992. It appears from the record (Petitioner's Exhibit 1, Respondents' Licensure file) that Roger J. Kathman was the Broker of Record for Respondent, Advantage until August 21, 1992, when he resigned. Apparently, part of the problem stemmed from using a form developed by the previous real estate agency which was not the form suggested by the Petitioner for this purpose. Since being advised about the form and that comparing the total trust liability of each escrow account with the reconciled the bank balance of each escrow account and signing the reconciliation form was the responsibility of the broker of record, Deering has been properly fulfilling that responsibility and reporting on the correct form. The total trust liability of Advantage's security deposit escrow account should have been $5,700.00 rather than the $6,600.00 indicated by the audit because the $900.00 included in the audit figure from the San Juan lease should not have been included since this amount was not to be escrowed pursuant to the lease. This was a verbal agreement between the parties that was later executed as an addendum to the lease. Advantage's reconciled bank balance for the security deposit escrow account should also be $5,700.00, calculated as $6,020.00 reflected in the audit, minus $1,000.00 that was erroneously disbursed from the Rental distribution escrow account (also called the property management escrow account) instead of the security deposit escrow account , plus $680.00 that was erroneously deposited into the rental distribution escrow account instead of the security deposit escrow account ( $6,020.00 - $1,000.00 + $680.00 = $5,700.00). The total trust fund liability of the rental distribution escrow account should be $3,175.42, calculated as $3,174.82 as reflected in audit plus $0.60 to correct bookkeeping error ($3,174.82 + $0.60 = $3,175.42). The reconciled bank balance for the rental distribution escrow account should be $3,175.42, calculated as $2,805.42 reflected in the audit, plus $1,000.00 transferred from the security deposit escrow account as reflected in Finding of Fact 8, minus $680.00 transferred to the security deposit escrow account as reflected in Finding of Fact 8, plus a deposit of $50.00 to correct an error made in crediting a tenant account with $50.00 more than was deposited from tenant ($2,805.42 + $1,000.00 - $680.00 + $50.00 = $3,175.42). Although there were clerical or bookkeeping errors made in the handling of Advantage's escrow accounts, there was no evidence that Deering failed to immediately deposit funds received in trust in an escrow account, albeit not always the correct one. After the audit, Respondent, Deering promptly and properly corrected the escrow accounts and accounted for the funds resulting in balanced escrow accounts. While the Respondents were negligent in the handling of the escrow accounts, there is insufficient evidence to establish facts to show that Respondents were culpably negligent or that there was a breach of trust. The Respondents' license as real estate brokers in the state of Florida has never been disciplined.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding Respondent Deering and Respondent Advantage guilty of technical violations of Section 475.25(1)(e) and (k), Florida Statutes. For such violations, Respondent Advantage should be given a written reprimand and Respondent Deering should be given a written reprimand and required to complete a 30-hour broker management course. Counts I and II of the Administrative Complaint should be dismissed. In making this recommendation, consideration has been given to the mitigating factors in relation to the disciplinary guidelines set out in Chapter 21V-24, Florida Administrative Code. Also, taken into consideration was the purpose of regulating any profession, the protection of the public by requiring compliance with those laws governing the profession. In this case, the recommended penalties will serve that purpose, the public has not been harmed, compliance has been accomplished and the penalty sufficient to remind the Respondents to be more diligent in the future. Adding any further penalty, including an administrative fine, would be unduly punitive. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Florida. WILLIAM R. CAVE 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 October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0606 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Unnecessary. 2.-12. Adopted in substance as modified by Findings of Fact 1 through 13. Respondent's Proposed Findings of Fact. Adopted in substance as modified in Findings of Fact 4, 5 and 8 through 13. Adopted in substance as modified in Findings of Fact 6 and 7. Adopted in Finding of Fact 15. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation, Division of Real Estate Hurston North Tower #308A 400 West Robinson Street Orlando, Florida 32801 Albert R. Deering, Pro se c/o Advantage Realty of Sarasota, Inc. t/a Century 21 Advantage 4121 Bee Ridge Road Sarasota, Florida 34233 Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1900
