Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order revoking the license of Respondent, Annette J. Ruffin, to be a real estate broker. RECOMMENDED this 27th day of May, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 27th day of May, 1987.
Findings Of Fact The parties Petitioner, Department of Business and Professional Regulation, Division of Real Estate, is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Christopher Chillemi (Christopher), is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0136243. The last license issued to Christopher was as a broker- salesperson with Michael F. Chillemi, 3615 Lake Worth Road, Lake Worth, Florida 33460. Respondent, Michael F. Chillemi (Michael), is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0014678. The last license issued was as a broker t/a Century 21 Chillemi Enterprises, 3615 Lake Worth Road, Lake Worth, Florida 33460. Counts I-III, the rental transaction On May 18, 1993, Christopher, while licensed and operating as a broker- salesperson for Michael F. Chillemi, showed a rental unit on which they had a listing, located at 752 Lori Drive, Palm Beach County, Florida, to Ms. Rose M. Bocek. Ms. Bocek liked the apartment, but since she was currently under a lease at another residence, advised Christopher that she could not take the unit unless the owner agreed to start the lease in August 1993. Christopher advised Ms. Bocek that he would present her offer to the owner, who lived out of state, and requested a deposit check should the owner agree. Thereupon, Ms. Bocek issued her check, dated May 18, 1993, payable to "C-21 Chillemi Escrow" in the sum of $375.00, as a deposit on the apartment, and delivered it to Christopher. 1/ That evening, Christopher spoke with the owner and he agreed to lease the apartment to Ms. Bocek starting in August 1993. Ms. Bocek's check for $375 was duly deposited into the Century 21 Chillemi Enterprises' escrow account on May 19, 1993. Notwithstanding that the owner had agreed to lease the premises to her as she had requested, Ms. Bocek called Christopher on May 19, 1993, and told him she had changed her mind and did not want to rent the apartment. Christopher, after checking with the owner, advised Ms. Bocek that, under the circumstances, the owner had advised him not to return her deposit. After speaking with friends, Ms. Bocek contacted the Florida Real Estate Commission to see if it could assist her in retrieving her money and, on June 24, 1993, an investigator went to Century 21 Chillemi Enterprises' office pursuant to that complaint. Subsequently, by letter of June 24, 1993, Ms. Bocek made a written demand on Michael Chillemi, Century 21 Chillemi Enterprises, for the return of her $375.00. After speaking with the owner by phone, and receiving his permission, Michael Chillemi did, on June 25, 1993, release from his escrow account and deliver to Ms. Bocek her deposit of $375.00, and by letter of the same date notified the Florida Real Estate Commission of the disposition of the deposit. The audit of June 24, 1993 While at the premises of Century 21 Chillemi Enterprises on June 24, 1993, petitioner's investigator conducted an audit inspection of Michael Chillemi's escrow account. That audit revealed that although Michael's escrow account balanced perfectly with the sums he should have in escrow, as it had on every prior audit of his office accounts, Michael did not have a written monthly statement-reconciliation document or form upon which was included the date the reconciliation was undertaken, the date used to reconcile the balances, the name of the bank, the name of the account, the account number, the account balance and date, deposits in transit, outstanding checks identified by date and check number, and which was signed and dated by the broker, as required by Rule 61J2- 14.012, Florida Administrative Code. Rather, Michael's practice was to utilize the back of his bank statement, together with a list of all pending contracts (which included the names of the parties, the date the transaction was to close, and the amount in escrow) and his check stubs, to reconcile his trust liability. These sources of information supplied the basic information required by Rule 61J2- 14.012, Florida Administrative Code, but the method employed to account for his trust liability did not result in one document reflecting the required information, and the reconciliation Michael did was not dated and signed. But for such failing, Michael's banking and accounting practices were deemed sound by petitioner's investigator.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding Christopher Chillemi not guilty of the allegations set forth in Count I of the Administrative Complaint, Michael Chillemi not guilty of the allegations set forth in Count II of the administrative complaint, and Michael Chillemi guilty of the allegations set forth in Counts III and IV of the administrative complaint. For the violations set forth in Counts III and IV of the administrative complaint it is recommended that Michael Chillemi receive a reprimand, and that he be directed to comply with the provisions of Rule 61J2-14.012(2), Florida Administrative Code, with regard to all future reconciliations. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of April 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April 1994.
Findings Of Fact Louis S. Wooten, Sr. is a registered real estate broker holding license No. 0098381. Louis S. Wooten, Sr. did business at the times involved in the administrative complaint as Lou Wooten Realty. Adequate notice of this hearing was given Louis S Wooten, Sr. in the manner required by Chapter 120 and Chapter 475, Florida Statutes. Evidence was received concerning deposits and withdrawals by Louis S. Wooten, Sr. from the Louis S. Wooten, Sr. escrow account in Peoples First National Bank, Miami Shores, Florida, between August 1, 1975 and November 10, 1975, when this account was closed. These records were identified by John Fortnash, vice president of the bank. These records included the ledger for this account from May, 1975 to November, 1975, (Exhibit 1), the ledger from November, 1975, until November 1976, (Exhibit 2), the signature card showing Louis S. Wooten to be the only person authorized to draw on the account, (Exhibit 3), and sixteen (16) individual deposit slips received as Composite Exhibit 4. These records show no activity in the account subsequent to December 23, 1975, when this account had a balance of $22.00. Thereafter, the balance of this account decreased by $2.00 per month, a service charge, until November 10, 1976, when the balance reached zero and the account was closed. Concerning Count 1, Yvard Jeune and Rosita Jeune contracted on or about September 26, 1975, to purchase certain real property from Eddie Silver for $28,500. The Jeunes paid $100 as an initial deposit to Lou Wooten, Sr., and agreed to pay an additional $1,900 for a total deposit of $2,000. This additional $1,900 was paid to Lou Wooten Realty by manager's check on or about September 30, 1975. This manager's check was identified by Barry Eber, chief savings and loan officer for First Savings and Loan of Miami, and received as Exhibit 5. The Jeune contract was contingent upon FHA financing for the Jeunes. FHA financing was not approved, and the Jeunes requested return of their $2,000 in accordance with the terms of the contract. The Jeunes never received their money from Louis S. Wooten, even though they eventually brought suit against Wooten and obtained a judgment against him. The records of Wooten's escrow account do not show the deposit of the $1,900 received from the Jeunes. Regarding Count 2, on or about October 19, 1975, Emma Crockett made an offer to purchase certain real property and paid an earnest money deposit to Lou Wooten Realty in the amount of $1,000 which was receipted for by Mollie Johnson. Mollie Johnson identified the receipt signed by her and testified that this money was duly delivered to Lou Wooten. Subsequently, Crockett's offer of $29,500 was rejected by the seller, and on December 24, 1975, a demand was made for return of the deposit. The cancellation mark on the check, identified by Crockett and received as Exhibit 24, indicates that it was received by Wooten Realty. Crockett's deposit was never returned to her by Wooten. As noted above, the Lou Wooten escrow account was closed with a zero balance. Regarding Count 3, George D. Pratt, Jr. and his wife, Eloise, contracted to purchase certain real property from Gladys P. Smith on or about December 5, 1975. The Pratts paid an initial deposit of $100 to T.F. Chambers and subsequently paid an additional $665 in the form of a manager's check to Lou Wooten Realty. This manager's check was identified by Barry Eber, chief savings and loan officer, First Federal Savings and Loan of Miami, and received as Exhibit 6. Harriet Pooley, an employee of Lou Wooten Realty, identified a receipt to George D. Pratt, Jr. and Eloise in the amount of $665 which was received as Exhibit 18. A review of the ledgers of the Louis S. Wooten, Sr. escrow account indicates no deposits were made to this account subsequent to November 26, 1975. Regarding Count 4, Bettye Green paid Lou Wooten Realty a deposit of $150 on a transaction in which she and her husband offered to purchase real property owned by the Fidlers. The Greens defaulted on the contract, and were advised by their salesman, T.F. Chambers, that their deposit would be forfeited. No evidence was introduced by the Florida Real Estate Commission regarding any demand on the Fidler's behalf for the money. Regarding Count 5, Mary Redfield, a friend and representative of Goldie Brown and Bernard Brown, identified a copy of a manager's check earlier identified by Barry Eber, chief loan officer of First Federal Savings and Loan of Miami and received as Exhibit 7, as a copy of an original check for $1,500 given to her by Goldie Brown which was deposited to Wooten's escrow account. Redfield also identified a contract, Exhibit 16, and a closing statement, Exhibit 17, as documents given to her by Goldie Brown. T.F. Chambers was the salesman who handled this contract. Chambers appeared at closing, after having purchased Lou Wooten Realty from Louis S. Wooten, Sr.Chambers stated that the Wooten escrow account lacked sufficient funds to permit closing the transaction and that he had personally paid for a cashiers check in the amount of $680, the amount necessary to close the purchase. Chambers identified this check which, as a part of Exhibit 21, was received into evidence. Regarding Count 6, Alladar Paczier, counsel for Istvan and Julia Beres, identified a deposit receipt contract for a bar and restaurant (Exhibit 26) and a receipt for a $3,500 deposit signed by Louis Wooten (Exhibit 27). Paczier represented that Wooten failed to produce the deposit money at closing, and that when demand was made by Paczier of Wooten for the deposit, Wooten stated to him that he did not have the money.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the registration of Louis S. Wooten, Sr. DONE and ORDERED this 17th day of January, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission 400 Robinson Avenue Orlando, Florida 32801 Louis S. Wooten, Sr. 743 Fairlawn Drive Sebring, Florida 33870
Findings Of Fact Pursuant to the Prehearing Stipulation, the following facts are established: This case is based on allegations by John Carosso that James J. Baruch, a licensed real estate broker, wrongfully allowed the dispersal of a deposit Mr. Carosso had made to Centennial Development Corporation on a villa to be constructed. James J. Baruch was associated with Wyn Pope Associates, Inc., as a realtor and salesman over a period of several years and on several projects which Mr. Pope developed. On the Gasa Tiempo project, the developer was Centennial Development Corporation and sales were handled by Wyn Pope Associates, Inc. This corporate realtor was formed using James J. Baruch's realtor's license. During their association, Wyn Pope and James Baruch had always agreed that no deposits would be accepted which could not be used for construction after the mortgage commitment. In the past Mr. Baruch had rejected contracts which did not allow such use of the deposit. The Casa Tiempo contracts all contained such a provision and deposit monies were invariably used for construction with the knowledge of the purchasers. Only the contract with John Carosso was changed to provide for an escrow and to prohibit use of the deposit for construction. Mr. Baruch did not prepare or negotiate this contract and his only connection with the Carosso sale was to witness Mr. Carosso's signature. The contract was negotiated and altered by Wyn Pope without Mr. Baruch's knowledge or consent. Neither Mr. Baruch nor Wyn Pope Associates was a party to the contract and the contract said that the deposit would be held in escrow, but did not specify an escrow agent. As a party to the contract, Centennial acknowledged receipt of the deposit and thereby agreed to hold it in escrow. Since Mr. Baruch was not an officer or in any way a part of Centennial Development Corporation, he had no authority to approve or modify the contracts and no reason to believe that he needed to review each contract himself. Mr. Baruch was therefore not authorized to control the deposit which according to the terms of the contract was made to Centennial Development Corporation. Although the contract was signed July 6, 1979, no deposit was received until July 17, 1979. The changes regarding escrow, although typed in, were each initialed, indicating that the contract was changed after execution and witnessing. Given the ten-day delay and initialing, it is likely that the changes regarding the deposit were made in the contract after Mr. Baruch had witnessed Mr. Carosso's signature and as a condition of the deposit being actually paid. In that case, Mr. Baruch would have no way of knowing that the standard contract had been modified unless he checked each contract submitted by other salesmen. Contrary to paragraph 9 of Petitioner's Complaint, Mr. Baruch never had actual knowledge of the terms of the Carosso contract until the project was taken over by Casa Tiempo Builders, Inc., in May, 1980. Mr. Baruch received no commission on the Carosso sale and never received any part of the deposit. Mr. Baruch completely severed his connection with Wyn Pope Associates, Inc., and Casa Tiempo in March, 1980, and did not profit in any way from the additional deposits demanded and received by Joseph Falso in May, 1980. On or about August 7, 1980, John Carosso entered into an agreement for the completion of his villa in which he released Centennial Development from all claims connected with his deposit. John Carosso was injured by the use of his deposit only in that he lost the option of withdrawing his deposit and rescinding the contract. He could not have finished his home at the original contract price even if the deposit remained in escrow. All the homes in the project had appreciated greatly in value between the contract of July 6, 1979 and the May, 1980 meeting, thus it was to each owner's advantage to pay the 7,500 and complete construction. Because of this appreciation, Mr. Carosso could have paid the $7,500 and immediately sold the house in May, 1980 for enough to return his entire initial deposit plus a profit. One Mr. Hmeilewski, a contract vendee, did so with the help of the new management of Centennial. Selling his contract would thus have enabled Mr. Carosso to be in a better position than rescission and return of the deposit. He preferred to have the house at the increased price. Respondent's position is that he was not responsible for the deposit and should not be sanctioned for the events stipulated to, especially since no actual damage was incurred by Mr. Carosso and all claims against the Developer and escrow holder Centennial Development Corporation were released by Mr. Carosso.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against James J. Baruch be dismissed. DONE and ORDERED this 24th day of August, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1982. COPIES FURNISHED: Frederick H. Wilsen, Esquire Department of Professional Regulation State Office Building 400 West Robinson Street Orlando, Florida 32801 James H. Gillis, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Nicholas Rockwell, Esquire McCUNE HIAASEN CRUM FERRIS & GARDNER, P.A. 25 South Andrews Avenue Post Office Box 14636 Fort Lauderdale, Florida 33302 Samuel R. Shorstein, Secretary Department of Professional Regulation Old Courthouse Square Bldg. 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Michael Jacob Piwko (Respondent), committed the violations alleged in the Administrative Complaint dated December 15, 2009, and, if so, what penalties should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida created by Section 20.165, Florida Statutes. Petitioner is charged with the responsibility of regulating the real estate industry in Florida pursuant to Chapters 455 and 475, Florida Statutes. As such, Petitioner is fully authorized to prosecute disciplinary cases against real estate licensees. Respondent was at the times material to this matter, the holder of a Florida real estate associate license, license number 707518, issued by Petitioner. As last known, Respondent was an active sales associate with All Star Investment Realty, Inc., 9425 Sunset Drive #180, Miami, Florida 33173. From January 2008 through May 2008, Respondent was employed as a sales associate with Enrique Piwko, the qualifying broker for All Star Investment Realty, Inc. In January of 2008, Joaquin Inigo, a buyer, sought to purchase a condominium in Tampa, Florida. He gave Respondent a deposit for the purchase, but was later advised the deal had “fallen through.” On or about May 17, 2008, Mr. Inigo executed a contract for purchase and sale seeking to acquire a second condominium, unit number 208, at 310 Crestwood Circle, Royal Palm Beach, Florida 33411. As part of the transactions with Respondent, Mr. Inigo tendered approximately $77,000.00 to Respondent to be applied to the purchase price of unit 208. Monies were tendered to Respondent directly because Mr. Inigo expected Respondent to get an employee discount related to the sale and pass that on to him. The closing date in July passed without unit 208 being conveyed to Mr. Inigo. Efforts to achieve a refund of the deposit monies were fruitless. Upon investigation of the matter, Petitioner discovered that Respondent never deposited Mr. Inigo’s funds in escrow with his broker. Petitioner did not negotiate the purchase of unit 208. Petitioner did not refund the deposit monies. All monies provided by Mr. Inigo to Respondent were for the purchase of unit 208 and were not a personal loan to Respondent. Respondent asserted in pleadings that the monies from Mr. Inigo were a personal loan. Respondent did not, however, present written evidence of the alleged loan or its terms and declined to respond to the investigatory efforts made by Petitioner. Petitioner did not present evidence regarding the cost of investigating this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Respondent in violation of the provisions of law set forth in the Administrative Complaint as alleged by Petitioner, imposing an administrative fine in the amount of $2,000.00, and imposing a suspension of Respondent’s real estate license for a period of five years. DONE AND ENTERED this 18th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2010. COPIES FURNISHED: Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Heather A. Rutecki, Esquire Rutecki & Associates, P.A. Bank of America Tower 100 Southeast Second Street, Suite 4600 Miami, Florida 33131 Roger P. Enzor, Chair Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, N801 Orlando, Florida 32801 Thomas W. O’Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, N801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue An Administrative complaint dated April 13, 1999, alleges that Respondent Mr. Stevens violated several provisions of Section 475.25, Florida Statutes, when he failed to return an earnest money deposit to a buyer after being directed to do so by the seller, the U.S. Department of Veterans Affairs. The issues in this proceeding are whether Mr. Stevens committed the violation and if so what discipline is appropriate.
Findings Of Fact Respondent, Collie E. Stevens, has been licensed in the State of Florida as a real estate broker since 1986. Prior to that year he was licensed as a real estate salesperson in Florida. In 1996 Mr. Stevens represented the seller, the U.S. Department of Veterans Affairs (VA), in the sale of a home in Orange County, Florida. On October 1, 1996, Doris Wright executed an Offer to Purchase and Contract of Sale for the home. When she signed the contract Ms. Wright gave the broker, Mr. Stevens, a check for $675.00 as an earnest money deposit. Mr. Stevens deposited the check into his escrow account. Later, in October or November 1996, Ms. Wright withdrew her offer to purchase the property. The VA regional office provided a notice to Mr. Stevens dated November 20, 1996, directing him to return the earnest money deposit to Ms. Wright. Mr. Stevens never returned the money to Ms. Wright although she made several requests through his secretary and made several attempts to contact him directly. Mr. Stevens alleges that he is entitled to retain at least $250.00 of the $675.00 deposit because that was the mortgage company's fee for processing Ms. Wright's mortgage application. Mr. Stevens claims that Ms. Wright authorized him to pay that fee on her behalf when she was not in town; Ms. Wright does not dispute that claim. Mr. Stevens also argues that he should be entitled to the remainder of the deposit money because Ms. Wright cancelled a listing agreement for him to sell her house. Ms. Wright disputes this claim and Mr. Stevens did not produce any contract or document evidencing such an agreement. During the pendancy of his dispute with Ms. Wright over entitlement to the deposit Mr. Stevens never notified the Florida Real Estate Commission of the dispute nor did he submit the matter to arbitration, mediation, or any court. Mr. Stevens insists that he could have worked out his differences with Ms. Wright and that he was always willing to give her $425.00, left after deducting $250.00 for the processing fee from the $675.00 deposit. In 1996, in another case, Mr. Stevens was disciplined by the Florida Real Estate Commission for culpable negligence or breach of trust, failure to give notice of his representation of a party, failure to maintain trust funds in an escrow account, and failure to preserve and make available brokerage records.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission issue a final order finding that Collie E. Stevens is guilty of a violation of Sections 475.25(1)(d)1. and 475.25(1)(0), Florida Statutes, as charged in the Administrative Complaint, and that the Florida Real Estate Commission suspend his license for two years and require him to complete a 7-hour escrow management course and a 60-hour post-licensure course, and that he pay the costs associated with this case. DONE AND ENTERED this 19th day of June, 2000, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2000. COPIES FURNISHED: Andrea D. Perkins, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 308N Orlando, Florida 32801-1772 Collie E. Stevens Son Set Free Realty, Inc. 2294 North U.S. One Fort Pierce, Florida 34950 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Department is the agency charged with the responsibility to prosecute violations of Chapter 475, Florida Statutes, allegedly committed by real estate brokers who are licensed in Florida. At all times material to these proceedings, Respondent Anglickis was a licensed real estate broker, having been issued licensed number 00001869 through the Division of Real Estate. Respondent American was a corporation registered as a real estate broker, having been issued license number 0169478. Both licenses were issued to the following address: 102 East Leeland Heights Boulevard, Lehigh Acres, Florida 33936. Respondent Anglickis was the qualifying broker for Respondent American, and held the office of president within the corporation. On April 19, 1989, the Respondents' accounting records were reviewed in a random, routine audit conducted by an investigator with the Division of Real Estate as part of the agency's regulatory functions. During the audit, the investigator determined that Sun Bank Account No. 013684, which was maintained by the Respondents in order to hold funds entrusted to them in pending real estate transactions, contained an overage of $9,639.83. According to the real estate company's records that were presented to the investigator, these funds were not being held for the benefit of any parties to any pending real estate transactions. At hearing, the Respondents' presented evidence to show that the funds in question in this particular trust account had been deposited as part of a number of pending real estate transactions involving installment lot sales from May 1986 through December 1986. During this time period, Respondent Anglickis was handling the bookkeeping matters within the company. He undertook this responsibility until he was able to find a replacement for the previous bookkeeper, who left on short notice. All the disbursements of funds were made on behalf of the buyers and sellers in the installment lot sales transactions except for the commissions belonging to the Respondent American. These funds were left in the trust account by Respondent Anglickis. When the new bookkeeper was hired, she reconciled the accounts every month from the time she came to the real estate company. The $9,639.83 was carried forward every month, and was never discussed again once the bookkeeper learned the money belonged to Respondent American early in her employment. This resulted in the isolation of these funds in the pending sales escrow account even though the sales had been completed and the files were considered as closed files within the office. By the time the evidence was presented at the administrative hearing, the Respondents had gone through the closed accounts involved in the installment lot sales during the period in question during 1986. The overage was shown to be the amount due to Respondent American for commission from these sales. These funds were then removed from the pending sales escrow account. Interest Bearing Sales Escrow Account In addition to the sales escrow/trust account at Sun Bank, the Respondents maintained an interest bearing account for the same purpose at the First Federal Savings and Loan Association of Fort Myers, Account No. 101222355. Unless a real estate client specifically allowed the Respondents to place the funds involved in a pending sale into an interest bearing account, they were required to place the funds in a non-interest bearing escrow account. In order for the Respondents to receive the interest on the money, full disclosure in writing had to be presented to the client, and written consent had to be obtained and documented. During the review of the Respondents' files and records relating to funds within the interest bearing sales account during the audit, the investigator was unable to locate the necessary disclosure forms for three clients whose funds were placed in the interest bearing account. When the investigator informed Respondent Anglickis of the real estate company's failure to comply with the disclosure requirements on the three pending contracts, the Respondent Anglickis indulged in a verbal tirade. It appeared from the evidence that this tantrum was unsuccessfully staged in order to either dominate or intimidate the young female investigator. During his harangue, the Respondent Anglickis said he would have his friend Harry Powell sign and backdate the required disclosure that was missing from Mr. Powell's file. The Respondent planned to then conveniently "find" the document misfiled in another file. Once he proposed this course of misconduct, the Respondent taunted the investigator concerning her inability to do anything about it if he chose to solve the problem in this manner. On her return visit to the offices on May 3, 1989, the investigator was presented with a copy of the required disclosure form for Harry Powell. The Respondent Anglickis informed the investigator that the agreement had been misfiled and was located in another file belonging to Mr. Powell. Mr. Harry Powell signed the disclosure statement during the actual sales transaction, as set forth on the form. In spite of his ongoing business relationship with Respondent Anglickis, he never backdated this disclosure, nor was he asked to do so by anyone at anytime. Charles Tucker, the real estate salesman with Respondent American who handled Mr. Powell's real estate purchase, had the client sign the disclosure statement during the sales transaction. This is a required sales procedure within the company. The bookkeeper located the disclosure in another closed file belonging to Mr. Powell within the real estate company. Mr. Powell purchased distressed properties within Lehigh Acres on a routine basis and had a number of closed files within the office. One of the other disclosure forms for a different client was sent to the title insurance company along with other documents. It was returned to Respondent American after the audit and was placed in the proper location. This form had been timely signed by the clients and allowed the Respondents to place the funds in the interest bearing account. The third and final missing disclosure form was in the possession of the real estate salesman who had it signed by the client before the escrow funds were placed in the interest bearing account. While the sales personnel are required to maintain a duplicate file, the office file in this case had not yet received the disclosure form from the salesman when the audit occurred. The Respondent Anglickis did not participate in any misconduct in order to advance the scheme he had proposed to the investigator during his tantrum. The Department's decision to prosecute the Respondents in this proceeding was proper due to the way in which the Respondent Anglickis' proposed scheme to circumvent the findings of the audit coincided with the later presentation of the missing disclosure statements.
Recommendation Based upon the foregoing, it is recommended that Respondent Anglickis and Respondent American be found not guilty of Counts I-VII as set forth in the Administrative Complaint, and that the charges be dismissed. RECOMMENDED this 26th day of June, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 26th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5414 Petitioner's Proposed Findings of Fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #2. Accepted. See HO #2. Accepted. See HO #3. Accept that during the audit, the records pur- portedly revealed an overage in the escrow account. See HO #4. The bookkeeper's statements are rejected as uncorroborated hearsay. Accepted. See HO #8 - #10. Accepted. See HO #11 and #12. Accepted. See HO #13. However, the investigator is not the ultimate trier of fact and did not have all of the evidence presented to the Hearing Officer which refuted that the proposed misconduct by Respondent Anglickis had occurred. See HO #19. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See HO #15 - #18. Accepted. See HO #4 - #7. COPIES FURNISHED: Steven W. Johnson, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Robert P. Henderson, Esquire 1619 Jackson Street Post Office Box 1906 Fort Myers, Florida 33902 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller, Executive Director DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 =================================================================
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating real estate licensees in the State of Florida. At all times material to the allegations of this case, Respondent was licensed as a real estate broker, license number 0333239, doing business at 120 East Oakland Park Boulevard, Suite 105, Fort Lauderdale, Florida, as Vaca Realty. On or about February 12, 1996, Respondent obtained a contract for sale and purchase on a property owned by Daryl Cohen. The purchasers, Donald H. Wilker and Patricia C. Wilker, executed the contract and tendered an initial deposit of $100. Respondent held the listing on the Cohen home and upon receipt of the signed contract, placed the initial deposit as well as a second deposit in the amount of $1,900 into the Vaca Realty operating account. The $2,000 deposit was never placed into a real estate escrow account or other proper depository. The contract between the Wilkers and Cohen was scheduled to close April 1, 1996. Prior to closing, the Wilkers notified Respondent that they were canceling the contract due to the condition of the roof. The parties were unable to agree as to the condition of the roof and the buyers announced their intention to not accept the home with the defects depicted in the roof inspection they had received. On April 2, 1996, Respondent sent a release of deposit form to the Wilkers, which they refused to execute. Such release would have authorized Respondent to release the deposit with $1,000 going to the Seller, Mr. Cohen, and $1,000 going to Vaca Realty. Thereafter, the Respondent was aware that the parties retained legal counsel with regard to the contract dispute. Despite her knowledge of the ongoing disagreement, Respondent did not notify the Florida Real Estate Commission regarding the deposit issue. On or about August 23, 1996, the Seller executed a Release and Cancellation of Contract form that directed Respondent to disburse $1,500 to the Wilkers and $500 to Daryl Cohen. This agreement had been signed by the Wilkers on August 13, 1996. Notwithstanding the terms of the foregoing agreement, on September 18, 1996, Respondent issued two checks from her operating account: one to the Wilkers in the amount of $1,500 and the other to Cohen in the amount of $250. Respondent is currently on a suspension as a result of a Final Order entered in DBPR Case No. 94-82411, which was affirmed by the Fourth District Court of Appeals, Case No. 97-1069, on December 17, 1997, mandate issued January 5, 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order suspending Respondent's license for six months, require Respondent to complete additional courses in escrow management, and direct that Respondent's escrow account be audited, at Respondent's expense, for at least one year after the reinstatement of her license. DONE AND ENTERED this 30th day of June, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1998. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801-1772 Lloyd H. Falk, Esquire 600 Southwest 4th Avenue Fort Lauderdale, Florida 33315
