Findings Of Fact The parties stipulated to facts set forth in paragraphs 1-8, below. Stipulated Facts The Petitioner is the Division of Real Estate of the Department of Professional Regulation. As such, Petitioner acts as the licensing and regulatory agency for real estate broker licensees. The Respondent is Harriet M. Arndt, holder, at all times pertinent to these proceedings, of license number 0002216 issued by Petitioner. Her address of record is One South Ocean Boulevard, Suite 322, Boca Raton, Florida 33431. On January 28, 1987, Respondent received in trust an earnest money deposit in the amount of $39,000 from a buyer for a piece of property listed with another realtor, Merrill Lynch Realty, Inc. At closing of the sales transaction on February 25, 1987, Respondent delivered a check drawn on her trust account in the amount of $15,600 and made payable to Merrill Lynch Realty, Inc. This payment represented payment of one half of the $31,200 real estate brokerage commission. The check was subsequently returned to Merrill Lynch Realty, Inc. due to "non-sufficient funds." On March 27, 1987, Respondent delivered a cashier's check in the amount of $15,600 to Merrill Lynch Realty, Inc., to replace the February 25, 1987, check. The Respondent's real estate brokerage trust account was overdrawn from January 8, 1987 through March 4, 1987, by amounts ranging from $12,991.39 to $14,306.53 on various days during that period. The Respondent failed to maintain the $39,500 earnest money deposit in her trust account from February 2, 1987 until February 25, 1987, because the trust account's daily balance was less than that amount during that period. The Respondent subsequently failed to maintain the $15,660 due to Merrill Lynch Realty Inc., in the trust account from February 25, 1987, through March 25, 1987, because the trust account's daily balance was less than $15,600. From March 19, 1987, through October 29, 1987, Petitioner's investigator requested Respondent to produce for inspection and copying those books and papers relating to Respondent's trust account which are maintained in connection with Respondent's real estate activities. The Respondent failed to make the requested trust account books and records available at any time. Other Facts The Respondent offered mitigating testimony establishing that she was initially licensed in 1978 and has never been censured by Petitioner for any professional violations. She is 57 years of age and her real estate license is her sole source of support. Further, Respondent has borrowed money from her children to make up the deficit in her trust account. The testimony of Respondent also established that she was introduced to a gentleman named Robert H. Lajoie by another realtor in December of 1986. Subsequently, on or about December 8, 1986, Respondent entered into a nefarious arrangement with Lajoie. Under terms of the arrangement, Lajoie gave Respondent a check for $25,500 as a deposit to purchase a property listed with Respondent. In turn, Respondent gave Lajoie back a cash deposit of $10,000 from her trust fund in connection with a contract between the two of them whereby Respondent was to purchase a property of Lajoie's. The closing of the sale of Lajoie's property to Respondent would not take place until May, 1987. Lajoie returned to his native Canada shortly after receiving the $10,000 cash payment from Respondent and died. Shortly thereafter, payment on Lajoie's $25,500 check to Respondent was stopped. The Respondent is not sure whether this action was taken by Lajoie prior to his death or by his estate subsequent to that event. It is Respondent's contention that the loss of the $10,000 cash deposit to Lajoie resulted in a negative net balance in her trust account and eventually all of her financial difficulties in this case. The Respondent was sent an overdraft notice by her bank on January 8, 1987, stating that her trust account was overdrawn by $13,500 and that a check for $25,500 had been returned. Subsequent overdraft notices dated January 13, 1987 and January 21, 1987, were received by Respondent noting the rejection of two of Respondent's checks; one in the amount of $294.90 and the other in the amount of $34.35. The notice of January 13, 1987, indicated a hold on the account in the amount of $2,862.94 against the account's balance of $3,006.19. The January 21, 1987, notice continued this hold on the account's balance of $2,891.45. The Respondent related a series of personal matters at hearing that had prevented her from keeping appointments with Petitioner's investigators to inspect her records. She agreed to make access to those records immediately available.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the offenses charged in the administrative complaint, imposing an administrative fine of $1,000 and suspending her license for a period of six months. DONE AND RECOMMENDED this 22nd day of July, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1472 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1-2. Included in finding 1. 3-8. Included in findings 3-8 respectively. Respondent's Proposed Findings 1. Included in finding 2. 2-5. Included finding 10. Included in finding 3. Included in finding 4, 5, and 10. Included in finding 8 and 12. 9-10. Rejected. 11. Included in finding 9. COPIES FURNISHED: Steve W. Johnson, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Robert E. Gordon, Esquire 2601 Tenth Avenue North Suite 314 Lake Worth, Florida 33461-3197 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Acting Director Department of Professional Regulation Division of Real Estate 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether the respondents, Dorothea L. Prisament and Warricks Real Estate , Inc., should be disciplined on charges filed in a six-count Administrative Complaint, three counts for each respondent, and alleging that the respondents: (1) were culpably negligent in allowing their escrow account to have a negative balance, in violation of Section 475.25(1)(b), Florida Statutes (1989); (2) failed to maintain trust funds in a properly maintained escrow account, in violation of Section 475.25(1)(k), Florida Statutes (1989); and (3) failed to maintain a proper office sign, in violation of F.A.C. Rule 21V-10.024 and Sections 475.25(1)(e) and 475.22, Florida Statutes (1989).
Findings Of Fact Dorothea L. Prisament and Warricks Real Estate, Inc., are now, and were at all times material hereto, licensed as real estate brokers in the State of Florida. Dorothea L. Prisament was the active real estate broker for the corporate broker, Warricks Real Estate. On or about August 16, 1989, investigator Marjorie G. May conducted an office inspection and audit of the escrow accounts of the respondents. Ms. May also reviewed the outer office of the respondents. The entrance sign did not have the name of Dorothea L. Prisament on it; however, the sign did have Warricks Real Estate correctly identified and identified as a licensed real estate broker. Ms. May advised Ms. Prisament of the fact that Ms. Prisament's name needed to be on the sign and identified as a real estate broker. Ms. Prisament had a new sign made which fully complies with the statutes and rules. There was no evidence introduced at hearing to show that the escrow account of the respondents had a shortage in any amount; directly to the contrary, both the Department of Professional Regulation investigator and Ms. Prisament agreed that there was no shortage in the account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and in light of the fact both that the respondents' violation was a very minor and technical one which was immediately corrected and that the respondents had to undergo the costs of defense of this case and suffer the mental duress of defending this case, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts I through IV of the Administrative Complaint and reprimanding the respondents for a minor and technical violation under Counts V and VI. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of July, 1990. COPIES FURNISHED: Janine A. Bamping, Esquire Department of Professional Regulation, Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32801 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Darlene F. Keller Director, Division of Real Estate 400 West Robinson street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
The Issue The issue in this case is whether Respondents are guilty of violating Section 475.25(1)(b) and, if so, what penalty should be imposed.
Findings Of Fact Respondent Galdo has been a licensed real estate broker for eight years and holds license number 0414542. At all material times, he served as president of Respondent Real Estate Support and Development Corporation, which is registered as a real estate broker and holds license number 0243131. All references below to "Respondent" are to Respondent Galdo only. By Contract for Sale and Purchase executed by both parties on December 5, 1989, Respondent, as trustee, agreed to sell to Ruben P. Chalarca a parcel located at 12 Sandalwood Court, Oviedo, Florida. The contract calls for a closing on or before December 28, 1989. The purchase price disclosed on the contract is "approx. 46,300.00 1000.00 cash to Mortgagee." According to the contract, payment was to include the buyer taking subject to and assuming a mortgage held by "Central Fed Mortgage Co." in the approximate principal amount of $45,300. The contract contains no information as to a brokerage commission. Blanks on the form contract concerning a commission are filled in "N/A." The only involvement of Respondent Real Estate Support and Development Corporation appears to be that Respondent provided Mr. Chalarca a business card bearing the name of Respondent, the name of Respondent Real Estate Support and Development Corporation, the company's address, and telephone numbers for Respondent and the company. However, the evidence does not establish that Respondent gave the business card to Mr. Chalarca for any purpose other than giving him the information necessary to contact Respondent. There is no evidence that Respondent held himself out as representing Real Estate Support and Development Corporation in his dealings with Mr. Chalarca. The $1000 earnest money deposit that Mr. Chalarca "paid" to Respondent was by a check that never cleared. Mr. Chalarca gave another check payable to Respondent individually. The second check was dated December 5, 1989, but was only in the amount of $400. There is another check dated December 5 payable to cash and in the amount of $150, but the record does not establish that the Chalarcas gave this sum to Respondent. Except for the $1000 earnest money check, all of the Chalarcas' checks cleared. The closing took place and Respondent Galdo, as trustee, conveyed the property by deed to Mr. Chalarca and possibly his wife. Mr. and Mrs. Chalarca are from Columbia, South America. Neither has had any significant real estate experience prior to the subject transaction with Respondent. Although Mr. Chalarca speaks and understands English reasonably well, his wife does not. Mr. Chalarca did not complete high school. Prior to or at the closing, Respondent told Mr. Chalarca to make the mortgage payments to Respondent, who would make arrangements with the mortgagee, evidently to show that the Chalarcas would be making the mortgage payments. It appear that the mortgage payments may not have been current when the Chalarcas purchased the property. Respondent admitted to Petitioner's investigator that he sent the November and December, 1989, payments to the mortgagee in January, 1990, together with a request that the mortgage be transferred to the Chalarcas. He also admitted that the bank returned the package with a demand for the January, 1990, payment. Upon receipt of the demand from the bank, Respondent told the Chalarcas that they must make the January, 1990, payment at that time. However, the record establishes that the Chalarcas gave Respondent only two checks after the closing. The first is dated April 17, 1990, and in the amount of $1600. The second check is dated May 21, 1990, and in the amount of $1000. The record does not clearly establish whether Respondent ultimately made the November and December, 1990, payments. The record clearly establishes that no one made the January, February, and March payments, although there is no evidence that the Chalarcas ever tendered these payments to Respondent. For reasons not apparent from the record, Mr. Chalarca decided to make the April, 1990, payment directly to the mortgagee. This check is dated April 7, 1990, in the amount of $1220, and payable to Transohio Savings. However, the mortgagee returned the check by letter dated May 29, 1990, because the loan was already in foreclosure. The letter gave Mr. Chalarca an address to contact "in order to stop the action." Most important, the record establishes that Respondent retained the $2600 paid to him by the April and May, 1990, checks, and the record does not establish any justification for the retention of this money by Respondent. There is no indication in the record that Respondent applied this money on behalf of the Chalarcas. To the contrary, there is some indication that no payments were made on the mortgage after late 1989. By Summary Final Judgment of Foreclosure entered November 6, 1990, Transohio Savings Bank, F.S.B. obtained a foreclosure judgment on the subject mortgage against Mr. Chalarca and his wife for the total sum of $52,613.74. The foreclosure judgment shows interest on the principal balance of $5649.24 through September 23, 1990, with an additional $15.78 per day interest from September 24, 1990, through the date of entry of the judgment. The assumed interest rate was not the statutory interest rate, which is expressly imposed upon the total due, starting from the date of the judgment. If the daily interest under the foreclosed mortgage were $15.78 daily, then unpaid interest of $5649.24 represents 358 days' interest, which would suggest that no interest payments were made after September or October, 1989. The foreclosure judgment ordered the clerk to sell the property on December 20, 1990. The Chalarcas remained in the 12 Sandalwood Court parcel until about the time of the sale.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Real Estate Support and Development Corporation, finding Roger Galdo guilty of violating Section 475.25(1)(b), suspending his license for six months, placing him on probation for 18 months following the end of the suspension, and imposing upon him an administrative fine of $1000. ENTERED this 9th day of September, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-4449 Treatment of Proposed Findings of Petitioner 1-3: adopted. 4: rejected as irrelevant. 5: adopted. 6: adopted except that the $1000 check was dishonored. 7: adopted. 8: rejected as unsupported by the appropriate weight of the evidence. All of the checks that the Chalarcas gave Respondent have been identified in the recommended order., which also identifies when these checks were delivered to Respondent. The evidence does not establish by the requisite standard that the Chalarcas gave Respondent the mortgage payments each month when they were due, or even that they gave Respondent funds sufficient to make the mortgage payments that fell due following the closing. 9: adopted except as the characterization of Mr. Chalarca as "suspicious." The characterization is rejected as unsupported by the appropriate standard of evidence. 10: adopted. 11: rejected as unsupported by the appropriate weight of the evidence. The record does not establish Mr. Chalarca's motivation for giving Respondent the two checks totalling $2600. 12: adopted, although a substantial amount of time elapsed between the service of the foreclosure summons and the departure of the Chalarcas from the mortgaged property. 13: adopted. 14: rejected as unsupported by the appropriate weight of the evidence. 15-19: rejected as recitation of evidence. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Attorney Janine B. Myrick Division of Real Estate Legal Section P.O. Box 1900 Orlando, FL 32802-1900 Roger Galdo 208 Madeira Avenue Orlando, FL 32825 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact At all times pertinent to the allegations herein, the Respondent, James C. Condrack, Jr., was licensed in Florida as a registered real estate broker under license number 0140067. Respondent J C C Company and Son, Inc., at all times pertinent hereto, was a licensed real estate brokerage corporation in Florida operating under license number 0215540. Both Respondents operate in Sarasota, Florida at 2831 Ringling Blvd., Suite 202 A. In addition to his real estate brokerage business, Respondent Condrack also operates a real estate holding company, (Flagship Equity), which holds approximately six properties valued at about one-half million dollars. These properties are all income producing properties which are either straight rentals or are sold on a lease option basis and generate rental income which in some cases, constitutes a slight positive cash flow. In September and October, 1987, Respondent, Condrack, was seeking to buy several properties in Bradenton, Florida. Two of these were private residences and the third, a multifamily home to be converted into an adult congregate living facility. At the time, Respondent, Condrack, was making the purchases on behalf of his holding company for his personal investments, not as a part of the business of J C C Company and Son, Inc., and was utilizing the brokerage services of Sharon Hendricks, an associate with MacIntosh Realty in Bradenton. Prior to making an offer on the properties in question, Mr. Condrack indicated he would like to have an appraisal made of them and through Ms. Hendricks, was put in touch with Mr. Robert Laney, owner and operator Key Realty Appraisal, Inc. of Bradenton Beach, Florida. On September 9, 1987, Mr. Condrack, through Ms. Hendricks, requested that Mr. Laney perform an appraisal on property located at 6008 11th Street East in Bradenton. The appraisal was accomplished and was delivered on September 15, 1987. Thereafter, on October 9, 1987, Respondent requested, again through Ms. Hendricks, that Mr. Laney do an appraisal on property located at 2109 12th Street West in Bradenton and this appraisal was accomplished and delivered on October 27, 1987. On or before October 20, 1987, Respondent Condrack met with Mr. Laney and went through the property with him. At that time, Respondent gave Mr. Laney no criteria for the appraisal nor did he indicate any minimum figure he would consider acceptable. Mr. Laney did the appraisal as requested and wrote up the results on a form provided by the Federal National Mortgage Association. In conducting his appraisal, he used the three standard appraisal methods; the income method, the cost data method, and the sales data comparison method. As to the third property, located on 55th Avenue in Bradenton, the cost data method reflected a value of $165,282.00; the income method reflected a value of $168,000.00; and the sales data comparison method reflected a value of $155,000.00. To get a valid appraisal using the comparable sales method, a minimum of three comparable sales must be considered. In this case, Laney used six sales no older than three months prior the appraisal date, using research records kept in his office. For the first appraisal, Mr. Laney charged $150.00 plus tax; for the second, the same; and for the third, $300.00 plus tax. This came to a total amount owed of $630.00 which was, by individual property billings, billed to attorney David Wilcox, but shown to be for either Mr. Condrack, in the case of the last property, or Flagship Equity in the case of the other two. Mr. Laney was not paid for any of the appraisals and on January 15, 1988, wrote to Mr. Condrack requesting that he be paid for the three appraisals. He was not paid. Respondent contends that he did not pay Mr. Laney because, as to the last appraisal, that on the 55th Avenue property, he was unable to secure financing from Key Savings Bank, to whom he applied for financing. He contends this was because Key refused to accept the appraisal done by Mr. Laney who was no longer on their list of approved appraisers because he had failed to initiate certification procedures as an appraiser. Mr. Laney contends that at the time he prepared the appraisal and forwarded it to Mr. Condrack, he was on Key's approved appraiser list but was subsequently removed because Key went to a designated appraiser system at the request of the Federal government. It matters not, however, whether Mr. Laney was certified by Key or not. There is no evidence that certification by Key was made a condition precedent to the appraisal services being rendered for Mr. Condrack and it appears that at the time the services were rendered and when the appraisal forms were delivered to the client, he was certified not only by Key but by the Island Bank (now First Union Bank) as well. He is still on the approved list with First Union. Mr. Condrack contends that when he first was turned down for financing on the 55th Avenue property, he was "miffed" and decided to extend payment to Mr. Laney over a period of time rather than pay immediately. He communicated this intention to Mr. Laney. Mr. Laney declined to accept extended payment and instead requested immediate payment. Mr. Condrack has failed to make any payments whatever to Mr. Laney for any of the three appraisals performed for him even though he utilized the appraisal on the first property in purchasing it and is currently drawing income from it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the so much of the Administrative Complaint as relates to the Respondent, J J C Company and Son, Inc., be dismissed, but that the broker's license of Respondent, James C. Condrack, Jr. be suspended for a period of one year. RECOMMENDED this 7th day of April, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK 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 7th day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3010 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 to this case. By The Petitioner: 1 - 7. Accepted and incorporated herein except as they pertain to Respondent, J C C Company and Son, Inc., which has been found not to be a part of Respondent Condrack's actions herein. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney DPR-Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 James C. Condrack, Jr. J C C Company and Son, Inc. Post Office Box 182 Sarasota, Florida 34230 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Respondent violated provisions of chapter 475, Florida Statutes (2016),1/ regulating real estate sales brokers, as alleged in the Administrative Complaint; and, if so, what sanctions are appropriate.
Findings Of Fact The Department is the state agency charged with regulating the practice of real estate pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. Ms. Murata is a licensed real estate broker in Florida, having been issued license numbers BK 3266198, 3326041, 3330594, 3334183, 3338731, 3345773, 3346456, 3346845, 3350300, 3364670, 3366527, 3366441, 3368235, 3369788, 3372663 and 3378303. Ms. Murata is under the jurisdiction of Petitioner and subject to applicable statutes and rules. Ms. Murata is the owner of the Florida Qualifying Broker of Record Service and maintains the Internet website, http://floridabrokerofrecord.com, which states its business model to be an opportunity for Florida real estate sales associates to run their own real estate companies without having to share their commissions with the broker of record. Friendly International Realty, LLC ("Friendly"), was formed in June 2011. From March 3, 2016, to June 7, 2016, Ms. Murata was the qualifying real estate broker for Friendly. Ms. Murata agreed to receive a monthly fee of $289.00 in exchange for being the qualifying broker of record for Friendly. Ms. Murata did not physically visit the license location of Friendly, at 937 Northeast 125th Street, North Miami, Florida, 33161, during the time that she was the qualifying broker. Ms. Murata was not a signatory on any escrow account used by Friendly. Ms. Murata did not keep any of Friendly's brokerage records. From March 4, 2016, to November 21, 2016, Jean Berthelot was a registered real estate sales associate with Friendly. He acted as an independent contractor. Ms. Murata was aware that Mr. Berthelot was doing business on the Multiple Listing Service ("MLS"). After she became the broker for Friendly, Ms. Murata activated one sales associate to help Mr. Berthelot. Joan Feloney is the owner of the subject property. Audrey Flanders is a real estate broker acting on behalf of Ms. Feloney in her efforts to lease the subject property. Ms. Flanders received a contract to enter into a lease from Tamara Stanton, a real estate sales associate at Friendly, on behalf of Paul Allicock. Ms. Feloney accepted the offer. Mr. Allicock paid $2,350.00 to Friendly toward lease of the subject property in the form of signed money orders dated March 6 and March 18, 2016. The money was placed in a Friendly escrow account. These money orders were paid to engage the services of Friendly and Ms. Murata as broker in the rental of the subject property. Pursuant to a written statement signed by Ms. Feloney, $550.00 of this amount was to be paid to Friendly, and $1,650.00 was to be paid to Ms. Feloney. A lease agreement between Mr. Allicock as tenant and Ms. Feloney as landlord and owner of the subject property was executed on March 21, 2016. Mr. Berthelot wrote a check from the Friendly escrow account to Ms. Feloney for $1,650.00 on the same date. Ms. Feloney attempted to deposit the check, but on April 14, 2016, the check was returned to her marked "NSF," indicating that insufficient funds were in the account. She was charged a $15.00 return item fee. Under the agreement between Ms. Murata and Friendly, Mr. Berthelot was not authorized to have an escrow account or otherwise hold funds or assets on behalf of a third party. As for brokerage transactions, he was supposed to e-mail transactional records to Ms. Murata or place them in a dropbox. Neither Ms. Stanton nor Mr. Berthelot ever placed documents in the dropbox. But, as Ms. Murata told Investigator Percylla Kennedy, she did learn that Friendly was doing business on the MLS. Ms. Murata became aware of the Friendly escrow account on April 26, 2016, in connection with a complaint about a transaction unrelated to this Administrative Complaint. She discussed the escrow account with Mr. Berthelot on April 27, 2016. Ms. Murata requested that Mr. Berthelot close the escrow account, submit proof that he had closed the account, and turn over all contracts between Mr. Berthelot and current clients. Ms. Murata did not want to perform a reconciliation of the escrow account. As she testified in deposition: Q: When you learned that there were third party funds being held by Friendly International Realty, did you demand the records of that account so you could perform a reconciliation? A: No, because [sic] was to be closed, because I did not want to manage an escrow account. So when I discovered what he was doing, the agreement was that he was going to close it immediately. I was not going to manage an escrow account for him, so I demanded, what I demanded was proof that the account was closed and proof that he had engaged in a written agreement with a title company for all escrow funds. Q: Approximately when did you make that demand? A: The moment that Jessica Schuller came up and he confessed that he had kept the account from his previous broker. That he had not told me because he was going to close it. I threatened I was going to resign once he paid those funds to Jessica. But then I agreed to continue if he closed that account immediately. On May 10, 2016, a complaint was filed with the Department against Ms. Murata, as broker of Friendly, regarding the lease transaction involving the subject property. After Ms. Murata became aware that Friendly owed money to Ms. Feloney, she maintained regular contact with her brokerage in an attempt to ensure that the money owed to Ms. Feloney was paid. Ms. Murata cooperated with the Department's investigation. Ms. Feloney, through Audrey Flanders, requested on June 2, 2016, that the $1,650.00 and an additional service charge of $82.00 be paid within 15 days or a case would be filed with the state attorney's office. The parties stipulated that on June 7, 2016, Ms. Murata resigned from her position as broker of record for Friendly. She testified that she resigned because she had not received the documents or actions that she had requested of Mr. Berthelot. Ms. Murata did not write a check to Ms. Feloney to pay the amount Friendly owed her because, with an investigation underway, Ms. Murata did not want it to be construed as an admission that she had personally collected funds from Mr. Allicock. She also evidently believed that since she had resigned, she was not professionally responsible for obligations that arose during the time that she had been the broker. Ms. Murata convincingly testified that in another, unrelated, situation, she became involved as the broker to resolve a potential dispute by ensuring that the party entitled to funds was paid. On June 25, 2016, a Bad Check Crime Report was filed with the Broward County State Attorney's Office. By letter dated June 8, 2016, the Department requested that Ms. Murata provide copies of monthly reconciliation statements; bank statements and records; and sales, listing, and property management files of Friendly. As Ms. Kennedy testified, Ms. Murata never provided those accounts and records to the Department, saying she did not have them. While Ms. Murata insists that any failure was only because Mr. Berthelot actively kept information from her, the parties stipulated that Ms. Murata failed to maintain control of, and have reasonable access to, some of the documents associated with the rental of the subject property. Mr. Trafton, an experienced real estate broker and expert in real estate brokerages, reviewed chapter 475; Florida Administrative Code Rule Title 61J; the deposit paperwork of Mr. Allicock; the Bad Check Crime Report; the investigative report; and the Administrative Complaint. He prepared an expert report to the Department. As Mr. Trafton testified, the usual and customary standard applicable to brokers is that they must promptly deliver funds in possession of the brokerage that belong to other parties. Mr. Trafton also testified that the standard of care applicable to a broker in supervising sales associates requires active supervision. He also testified that a broker must maintain the records of the brokerage. Mr. Trafton testified that in his opinion, Ms. Murata failed to meet these standards. Ms. Murata failed to promptly deliver funds to Ms. Feloney that were in possession of the brokerage. Ms. Murata failed to manage, direct, and control Real Estate Sales Associate Berthelot to the standard expected of a broker of record. She did not actively supervise him, instead relying completely on Mr. Berthelot and other associates to provide her any information she needed to know. Ms. Murata failed to preserve accounts and records relating to the rental or lease agreement of the subject property. Petitioner did not clearly show that Respondent was guilty of either "culpable negligence" or "breach of trust." As Investigator Kennedy testified, and as corroborated by cost summary reports maintained by the Department, from the start of the investigation of this complaint through September 14, 2017, costs incurred by the Department were $1,443.75, not including costs associated with an attorney's time.
Recommendation Upon consideration of 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 Maria Camila Murata in violation of sections 475.25(1)(d)1., 475.25(1)(u), and 475.25(1)(e) as charged in the Administrative Complaint; imposing an administrative fine of $2,250.00; imposing license suspension for a period of two months; and imposing costs related to the investigation and prosecution of the case. DONE AND ENTERED this 2nd day of January, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 2nd day of January, 2018.
Findings Of Fact Respondent is a licensed real estate salesman and held such license at all times material to this proceeding. She was a salesman with Miller, Cowherd and Kerver, Inc. Realtors (MCK) at the time of the transactions relevant to this proceeding. Complainant Loretta Fram listed her home in Ft. Lauderdale with Respondent and utilized her services as realtor in the purchase of a condominium apartment in Plantation. Another member of the MCK firm had previously prepared a contract for Fram to purchase the same condominium unit, but it was not executed. The first condominium contract included a contingency clause that required return of Fram's $5,000 deposit if she did not sell her house prior to the condominium closing. This clause was not included in the contract prepared by Respondent even though Fram told her she could not make the condominium down payment due at closing without the proceeds from the sale of her house. Respondent assured Fram the house would be sold in time or that she would work something out. Just prior to the scheduled condominium closing, Respondent arranged a 90-day "swing loan" for $15,000, since funds from the house sale were not forthcoming. Without this loan, Fram would not have been able to close on the condominium and may have had to forfeit her deposit. The swing loan interest and fees amounted to $2,030. Fram paid this amount in January, 1980, on Respondent's assurance that she would be reimbursed. Respondent reduced such assurance to writing in a document dated January 8, 1980 (Petitioner's Exhibit 6). However, after three years, Fram has not been reimbursed. At the time Fram attempted to move into her condominium unit, she was refused admittance by the condominium association. Respondent has reasonably relied on an acceptance the association issued in conjunction with the initial contract. The association thereafter held a meeting and ratified its earlier decision to accept Fram.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order suspending Respondent's license as a real estate salesman for a period of three years. DONE and ENTERED this 12th day of July, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1983. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124th Street North Miami, Florida 33161 Edward Oddo, Esquire 2660 Northwest 32nd Street Boca Raton, Florida 33432 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues for determination in this proceeding are whether Respondent violated Sections 475.25(1)(b), (d), and (e), Florida Statutes, 1/ through culpable negligence or breach of trust in a business transaction; by failing to account or deliver trust funds; and by failing to timely notify the Florida Real Estate Commission of a deposit dispute or to implement remedial action; and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate broker under license number 0037920. The last license issued to Respondent was issued as a broker at Heath Realty, 4864 S. Orange Avenue, Orlando, Florida. On May 18, 1993, Mr. Anthony Rodgers and Ms. Jill Rodgers (the "buyers") entered into a contract to purchase real property from Ms. Norma A. Cash (the "seller"). The buyers entrusted Respondent with a total earnest money deposit of $1,000. The transaction failed to close. On July 8, 1993, Respondent timely notified Petitioner in writing that there were conflicting demands for the earnest money deposit and a good faith doubt regarding the deposit. However, Respondent failed to institute one of the settlement procedures described in Section 475.25(1)(d)1. until legal proceedings between the buyer and seller were amicably settled approximately seven months later. Respondent failed to institute a prescribed settlement procedure in a timely manner even though Petitioner advised Respondent in letters dated July 26, 1993, and September 9, 1993, of the action Respondent should take. On February 9, 1994, Respondent finally requested an escrow disbursement order in accordance with Section 475.25(10(d)1. The escrow deposit was paid to the seller pursuant to the agreement of the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 475.25(1)(b), 475.25(1)(d)1., but guilty of violating Section 475.42(1)(e) and Florida Administrative Code Rule 61J2-10.032. It is further recommended that the Final Order place Respondent on probation for a period of one year and, during the period of probation, require Respondent to complete courses in broker management not to exceed eight credit hours. RECOMMENDED this 8th day of February, 1995, in Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February 1995.
Findings Of Fact Respondent Anglickis is a Florida real estate broker holding license number 0001869. Respondent American Heritage Realty, Inc., is a corporate real estate broker holding license number 0169476. The address of both respondents is 102 East Leland Heights Boulevard, Lehigh Acres, Florida. (P-26.) Respondent Anglickis is president of American Heritage Builders, Inc., respondent American Heritage Realty, Inc., and Lee County Mortgage and Title, Inc. All three companies are located at the same address. (Testimony of Campbell; P-5, P-26.) On March 12, 1979, Louis G. Hofstetter and his wife, Dale I. Hofstetter, both residents of North Carolina, entered into a real estate contract with American Heritage Builders, Inc. Respondent Anglickis signed on behalf of American Hertiage Inc. Under the terms of the contract, the Hofstetters were to Purchase a lot and home to be constructed thereon by American Heritage Builders, Inc. The purchase price included the transfer of a lot owned by the Hofstetters and a cash down payment. (Testimony of Hofstetter; P-1, P-3, P-26.) The contract estimated closing costs to be approximately $2,000". It also contained conflicting conditions relative to the time within which any mortgage financing must be obtained. . . . In the event PURCHASER'S application for mortgage financing is not approved within sixty (60) days from date hereof, all monies receipted for, less cost of credit report, will be returned to the PURCHASER and this contract will be null and void. * * * FOR MORTGAGE TRANSACTIONS: This contract of Purchase and Sale shall be void unless Purchaser's application for Mortgage has been approved by a bank or financial institution and Purchaser has executed the Mortgage Acceptance Form, within four (3) [sic] months from date of this Contract of Purchase. 2/ (P-1, R-1.) On March 12, 1979, the Hofstetters signed a mortgage loan application and submitted it to Lee County Mortgage and Title, Inc. (P-26.) On May 5, 1979, 45 days after accepting the application, Lee County Mortgage and Title, Inc., submitted the Hofstetters' mortgage loan application to First Federal of DeSoto. (Testimony of Archer.) On June 15, 1979 (95 days after receiving the loan application), Lee County Mortgage and Title, Inc., wrote the Hofstetters indicating that the local lender needed additional information on their stock holdings, and enclosing a document titled "Good Faith Estimate of Settlement Charges". This document estimated that closing costs would be $2,754--$754 more than the estimate contained in the real estate contract. (P-5.) On June 22, 1979, the Hofstetters protested the increased closing cost, requested clarification, and provided the requested information on their stock holdings. (Testimony of Hofstetter; P-26.) On July 7, 1979, the Hofstetters notified Lee County Mortgage and Title, Inc., that the increased closing cost deviated from the contract, that they therefore considered the contract cancelled and wanted the deposit refunded. (Testimony of Hofstetter; P-8.) On June 29, 1979, Robert Campbell, vice-president of Lee County Mortgage and Title, Inc., wrote the Hofstetters and explained the meaning of each component of the closing cost. (P-7.) On July 17, 1979, respondent, as president of American Heritage Builders, Inc., wrote a letter to the Hofstetters expressing his position: * * * Let me try and put the contract in the proper perspective for you. It's our contention that you have reluctantly provided to us the information that would enable us to make a proper and expedient application to the lending institution and that much of this information has been confused, causing further delays. In accordance with the contract, you were to make this application as quickly and as expediently as Possible so that the contract would not expire. However, this is not the case. Thus, my immediate Position is that the contract should be expired and all of the deposits, including the cash and the lot which we gave you $6,995.00 trade for, would be forfeited as agreed upon liquidated damages. He ended by outlining other alternatives and repeating his asserted right to cancel the transaction and retain the Hofstetters' deposit as liquidated damages * * * First, the lending institution must make a quick determination based on the facts that they have that you are either eligible or not eligible for a mortgage loan as outlined in our contract. If they still do not have enough information, we have no other choice then but to ask you to pay the increase which we have experienced at this time (price list enclosed), and in paying that increase we would be willing to take another 90 days to try and secure a loan for you. If your mortgage loan is denied, your deposit less the costs of processing your mortgage application will be returned to you. Of course, the third choice is the choice I hope we do not have to take, and that is cancelling this transaction and retaining your monies as agreed upon liquidated damages. (P-9.) Mr. Hofstetter responded on July 22, 1979. He denied that he was responsible for any delay or confusion in the Processing of their loan application; asserted that 93 days had elapsed from the submission of their loan application and Mr. Campbell's letter of June 15, 1979, asking for additional financial information; and informed respondent Anglickis that the contract had already expired by virtue of the clause allowing 60 days to obtain mortgage financing. He then, again, asked that his deposit be returned. (P-10.) On July 30, 1979, respondent Anglickis, as president of American Heritage Builders, Inc., wrote to the Hofstetters indicating that the loan had been approved 3/ and he was prepared to build their home at the contract price. He then addressed Mr. Hofstetter's July 22, 1979, denial of any responsibility for delay in obtaining the mortgage loan: I have reviewed your letter of July 22, 1979 and I understand we certainly have a difference of opinion as to whose fault the delay has been caused by. However, I don't think it's time to look at whose fault the delay might be, since it all has worked out to your satisfaction. The mortgage has been approved and we are ready to build. I expect you will now sign the mortgage papers when receipted for so that we may begin construction immediately. (P-11.) On August 6, 1979, the Hofstetters restated to respondent Anglickis that they were not prepared to go ahead with construction, that the contract became null and void by operation of the 60-day mortgage financing clause, and that the deposit should be immediately returned. (P-12.) On August 31, 1979, respondent Anglickis notified the Hofstetters that, pursuant to the contract conditions, he was retaining their full deposit, including cash and the real estate lot for which they received a $6,995 credit toward the purchase price. The full down payment totaled $10,350. (P-1, P-13.) On September 8, 1979, the Hofstetters replied: We cannot understand why you continue to ignore the provisions of the second sentence of Paragraph Two on the reverse side of Contract No. 1997, dated 12 March 1979. You say you intend to invoke the Provisions of the third sentence of this para- graph, but this sentence is Predicated on the assumption that the mortgage would be approved within sixty (60) days. The mortgage was not approved until late July (your letter of 17 July 1979 indicated it was not yet approved, and your letter of 30 July 1979 stated that it had now been approved), more than 120 days past the date of the original contract. Our Position is as Previously stated on several occasions: on 12 May 1979 the contract became null and void, and on that date our deposit should have been refunded. Any action other than this is illegal, according to the terms of the contract. We are due return of our down payment, plus interest, from 12 May 1979. (P-24.) On October 3, 1979, First Federal of DeSoto, which had continued to process the Hofstetter loan application, issued a commitment approving the requested loan. On October 10, 1979, the Hofstetters rejected the mortgage loan. (P-26.) Subsequently, the Hofstetters wrote letters to the Florida Department of Legal Affairs and the Lehigh Chamber of Commerce complaining of respondent Anglickis' retention of their deposit; they, then, retained an attorney and filed a civil action against respondents in the circuit court of Lee County. That action was settled out-of-court. There is no evidence whatsoever to support respondent Anglickis' assertion to the Hofstetters that they were dilatory or responsible for confusion or delay in obtaining the necessary mortgage financing.
Recommendation Based on the foregoing, it is RECOMMENDED: That the charges against respondent American Heritage Realty, Inc., be dismissed; That respondent Richard A. Anglickis be administratively fined $1,000. DONE and RECOMMENDED this 13th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oaklnd Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. David B.C. Yeomans, Jr., is now and was at all times material hereto a licensed real estate broker having been issued license number 0163386. During times material, Respondent was the qualifying broker for G & A Realty and Investments, Inc., a corporation licensed as a real estate broker in the State of Florida. 1/ From approximately April 1985 to December 1985, Respondent Yeomans was the president and qualifying broker for G & A. Wilfredo Gonzalez, a licensed real estate salesman and Alberto Aranda were each 50 percent shareholders of G & A. Wilfredo Gonzalez, while licensed as a real estate salesman in the employ of G & A, solicited and obtained a client, Alfredo Susi, who made an offer to purchase a commercial property in Dade County, Florida. In connection with the offer, Alfredo Susi entrusted a $10,000 earnest money deposit with Wilfredo Gonzalez to be held in trust in G & A's escrow account. The seller rejected Susi's offer to purchase whereupon Alfredo Susi made demands upon Gonzalez for return of the earnest money deposit. Wilfredo Gonzalez attempted to return the earnest money deposit entrusted by Susi via check dated November 18, 1985 drawn on G & A's escrow account. Upon presentation of the subject check by Susi, it was returned unpaid due to non-sufficient funds. Alfredo Susi has been unable to obtain a refund of the deposit submitted to Gonzalez. Wilfredo Gonzalez used the deposit presented by Susi and did not apprise Respondent Yeomans of what or how he intended to dispose of Susi's deposit. Alfredo Susi had no dealing with Respondent Yeomans and in fact testified and it is found herein, that Susi's dealings in this transaction, were exclusively with Wilfredo Gonzalez. Tony Figueredo, a former salesman with G & A, is familiar with the brokerage acts and services performed by Respondent Yeomans and Wilfredo Gonzalez. During his employment with G & A, Figueredo had no dealing with Respondent Yeonans and in fact gave all escrow monies to Wilfredo Gonzalez. Carolyn Miller, the president and broker for Rite Way, Realtors, an area brokerage entity, is familiar with the customs and practices in the Dade County area brokerage operations. Ms. Miller considered it a broker's responsibility to supervise all salesman and to review escrow deposits and corresponding accounts approximately bimonthly. Theodore J. Pappas, Board Chairman for Keyes Realtors, a major real estate brokerage entity in Dade County, also considered it the broker's responsibility to place escrow accounts into the care and custody of a secretary and not the salesman. Mr. Pappas considered that in order to insure that funds were not misappropriated, checks and balances and intensive training programs would have to be installed to minimize the risk of misappropriation of escrow deposits. Mr. Pappas conceded however that it was difficult to protect against dishonest salesman. Respondent Yeomans has been a salesman for approximately eleven years and during that time, he has been a broker for ten of those eleven years. During approximately mid 1984, Respondent Yeomans entered into a six (6) month agreement with G & A to be the qualifying broker and to attempt to sell a large tract of land listed by Context Realty in Marion County (Ocala). When Respondent agreed to become the qualifying broker for G & A Respondent was a signator to the escrow account for G & A Realty. Sometime subsequent to Respondent qualifying as broker for G & A, Wilfredo Gonzalez changed the escrow account and Respondent Yeomans was unfamiliar with that fact. Respondent Yeomans first became aware of Susi's complaint during late 1985 or early 1986. Respondent Yeomans was not a signator on the escrow account where Wilfredo Gonzalez placed the escrow deposit entrusted by Alfredo Susi. (Petitioner's Exhibit 9) During approximately November, 1986, Respondent Yeomans made it known to the officers at G & A that he was withdrawing his license from G & A and attempted to get G & A's officers to effect the change. When this did not occur by December, 1986, Respondent Yeomans effectuated the change himself and terminated his affiliation with G & A. During the time when Respondent was the qualifying agent for G & A, there were approximately four employees and little activity to review in the way of overseeing real estate salespersons. During this period, Respondent Yeomans reviewed the escrow account for G & A that he was aware of. During the time that Respondent Yeomans was qualifying broker for G & A, he was primarily involved in the undeveloped acreage owned by Context Realty and other REO listed property of G & A. During the period when Respondent Yeomans was qualifying agent for G & A, Wilfredo Gonzalez spent approximately 95 percent of his time managing rental property that he (Gonzalez) owned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of June, 1987 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1987.
The Issue The issue presented for decision herein is whether or not Petitioner meets the qualifications for licensure as a real estate salesman.
Findings Of Fact On June 13, 1988, Petitioner filed an application for licensure as a real estate salesman. In responding to question 14(a) of the application, Petitioner answered that his license, as a real estate broker, had been revoked for non-payment of an administrative fine. (Respondent's exhibit 1). Petitioner attached to his application a copy of a transcript of an administrative hearing held in DOAH Case No. 84-0981. A final order was entered in that case based on a stipulation wherein Petitioner agreed to pay an administrative fine of $500 within 30 days of entry of the final order. Petitioner has not paid the administrative fine as he agreed. Petitioner admitted during hearing that he had not paid the fine and made an offer during the hearing herein to pay that fine in as much as he failed to pay it earlier since he did not have the wherewithal to pay the fine. Petitioner is now employed as a sales representative with Metropolitan Life Insurance Company. 1/ Petitioner's license as a real estate broker was revoked by Respondent based on his failure to pay an administrative fine imposed in an earlier case (DOAH Case No. 86-145, Respondent's exhibit 2).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner's application for licensure as a real estate salesman be DENIED. RECOMMENDED in Tallahassee, Leon County, Florida, this of 27th day of January, 1989. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1989.
