The Issue The issues are whether Respondents committed the offenses set forth in the Administrative Complaint, and if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence presented at the hearing, the undersigned makes the following findings of fact: At all times material to this proceeding, Mrs. Bashant held a Florida real estate salesperson license, number 0551150, which was involuntarily inactive. At all times material to this proceeding, Mr. Bashant held a Florida real estate broker license, number 0419768, which was involuntarily inactive. At all times material to this proceeding, Mr. Bashant was the broker of record for The Real Estate Group, Inc., a corporation which was no longer in business and which had no escrow accounts. The corporation's license to do business as a real estate agency has been inactive since May 12, 1993. Florida's Department of State, Division of Corporations, administratively dissolved the corporation on August 13, 1993. On December 8, 1993, Mr. Bashant executed a written offer to purchase a house belonging to John and Carolyn DelPrete (Sellers). The Bashants wanted to buy the house, located at 194 North East Blairwood Terrace, Jensen Beach, Martin County, Florida, as their personal residence. Mr. Bashant gave the written offer to Stacy Mathias (Mathias), who was the Sellers' exclusive listing agent. The offer called for an initial cash deposit of $1,000 and an additional payment of $9,000 in the form of a promissory note, payable at closing. The $1,000 cash deposit was to be held in trust by the Real Estate Group, Inc. This first offer reflects that the buyers rather than the sellers would pay for title insurance. Mr. Bashant never intended to make a $1,000 cash deposit in any escrow account or to make and deliver a $9,000 promissory note at closing. Instead, he only intended to execute and deliver a $10,000 promissory note at closing. He executed a $10,000 promissory note but did not deliver it to anyone until he gave it to his attorney in January of 1994. Sometime between December 8, 1993 and December 14, 1993, Mathias presented the offer to the Sellers. They would not agree to accept the $9,000 promissory note at closing. The Sellers also wanted to make certain other changes and additions to the contract. Mathias prepared a second draft of the original offer which required an initial cash deposit of $1,000 to be held in escrow by The Real Estate Group, Inc. It also required an additional $9,000 cash deposit to be placed in escrow within ten (10) days after the effective date of the contract. The second draft of the offer did not include any language referring to a promissory note payable at closing. In the second draft, seller was responsible for providing title insurance. After receiving the second draft of the contract, the Bashants added and initialed a change in paragraph II(b) stating that a $9,000 promissory note would be paid at closing. The Bashants also made and initialed three other changes: (a) They added the master bedroom bedspread to the list of personalty in paragraph I(c); (b) They added "+ or -" to the finance amount in paragraph II(e); and (c) They added "+ or -" to the finance amount in IV(a). The Bashants signed and returned the contract to Mathias. They did not date their signatures. Mathias presented the contract to the Sellers who initialed the changes in paragraphs II(e) and IV(a). However, the Sellers struck through the language adding the master bedroom bedspread in paragraph I(c) and the promissory note language in paragraph II(b). The Sellers changed the party responsible for providing title insurance to buyer rather than seller and changed the time for acceptance from December 14, 1993 to December 15, 1993. On December 14, 1993, the Sellers initialed their changes and deletions, signed the contact, and returned it to Mathias. Mathias called Mr. Bashant on the telephone to discuss each of the changes. She specifically told Mr. Bashant that the Sellers would not accept a promissory note at closing. Mr. Bashant responded that he had no problem eliminating the promissory note language because he had just sold some cars and had the money to make the cash deposits. He agreed to initial the changes and pick up the contract. On December 15, 1993, Mathias delivered the contract to the Bashants. They initialed the change crossing out the bedspread in paragraph I(c). They did not initial the change eliminating the promissory note language in paragraph II(b), the change requiring the buyer to pay for title insurance in paragraph V, or the change setting December 15, 1993, as the time for acceptance in paragraph III. The Bashants added and initialed a provision requiring the Seller to pay $500 towards the cost of the title insurance in paragraph V. On December 16, 1993, the Bashants returned the contract to Mathias. Mathias told the Sellers about the last change requiring them to pay $500 towards title insurance. The Sellers would not agree to this provision. Therefore, Mathias agreed to pay $500 towards the cost of the title insurance to save the sale. With that understanding, the Sellers initialed the final change in the title insurance provision. Mathias never reduced to writing the agreement that she would pay $500 towards the cost of title insurance; however, she informed Mr. Bashant of her responsibility and he expressed no objection. The contract was contingent on the Bashants obtaining financing and being able to construct a 15' by 30' pool on the property. As of December 16, 1993, Mathias and the Sellers assumed that the contract was bilateral. Mathias never specifically asked the Bashants to initial the deleted promissory note language, the change in the time for acceptance, or the change in the party responsible for providing title insurance. Mr. Bashant told Mathias he would provide her with copies of the checks that he had deposited in escrow. He did nothing to correct the false impression that he had made the cash deposits. Sometime during December of 1993, the Sellers returned a cash deposit to potential buyers who had a preexisting right of first refusal to buy the Sellers' home. The record does not reveal a specific reason for the couple's decision not to exercise their option to purchase the Sellers' home. On December 23, 1993, Mrs. Bashant took several members of her family to see the Sellers' home. Mr. Bashant was not present at the time they made the visit. Shortly after January 1, 1994, the Bashants picked up a survey of the Seller's home from Mathias's office. The Bashants needed the survey to assist them in determining whether they could construct a 15' by 30' pool on the property. On January 4, 1994, Mr. Bashant faxed a message to Mathias stating that the pool could not be built as suggested by the Sellers because of a 25' buffer on the back side of the property. The message stated that Mr. Bashant would check on alternatives but that he wanted Mathias to be aware of the problem. Mr. Bashant also asked Mathias to send him a copy of the "bilateral contract." On or before January 5, 1994, Mathias talked to Mr. Bashant who said he would pick up a copy of the "bilateral contract" and give her a copy of the checks he had deposited in escrow. Later that day, a friend of the Bashants, Al Fontaine, picked up a copy of the contract for Mr. Bashant. Mr. Fontaine informed Mathias that he did not have the deposit check copies but that Mr. Bashant would furnish them. On January 13, 1994, Mr. Bashant told Mathias he would apply to the county for a variance to construct the pool. Mathias informed Mr. Bashant that another real estate agent, Carol Pierson, had clients who were interested in buying the property. Mr. Bashant replied that he was willing to step aside if someone else wanted to purchase the property. Carol Pierson took her clients to view the house. These clients were former prospective buyers who had recently received a settlement and were interested in purchasing a home immediately. They knew about the contract between the Bashants and the Sellers. Either no one ever informed the prospective buyers that the Bashants were willing to step aside or they were not interested in buying the house. In any event, they never made an offer. On January 19, 1994, Mathias sent Mr. Bashant a letter informing him that the prospective buyers had not made an offer. She assumed Mr. Bashant was working on the variance for the pool and reminded him that he had not produced copies of the checks deposited in escrow. On January 22, 1994, Mathias sent Mr. Bashant another letter demanding evidence that he had deposited the funds into the escrow account. Mathias advised Mr. Bashant that she intended to file a complaint with the Florida Real Estate Commission (Commission) failing the production of such evidence. On January 24, 1994, Mathias received a letter from Mr. Bashant stating that he understood the contract to be void when Carol Pierson's clients viewed the house. He informed Mathias of his attorney's opinion that the contract was null and void because of certain dates and signatures. Mr. Bashant enclosed a copy of a letter from Coral Gables Federal denying approval of the loan due to insufficient income. On January 27, 1994, the Sellers' attorney sent letters to the Bashants and The Real Estate Group, Inc., demanding a closing date or $10,000. On February 8, 1994, the Bashants' attorney responded claiming that contract contingencies had not been met and that the parties never agreed to the form of deposit. After Mathias filed a complaint with the Commission, Jonathan Platt, Petitioner's investigator, called the Bashants. He spoke with Mrs. Bashant who referred him to her husband. Mr. Bashant admitted that The Real Estate Group, Inc., was inactive and that naming it as the escrow agent was his mistake. He admitted that he had not deposited any funds in escrow. The record does not contain clear and convincing evidence that the Sellers lost potential buyers as a result of dealing with the Bashants. For some unspecified reason, one couple declined to exercise their option to buy and requested a refund of their deposit; however, no one contacted this couple when it became apparent that the sale to the Bashants would not close. Carol Pierson's clients looked at the house but, for some unknown reason, did not make an offer. Mathias never told Ms. Pierson that her clients could not make an offer or that the Bashants were willing to step aside. 34 During the period from December 16, 1993 through January 24, 1994, Mr. Bashant misrepresented and concealed his intentions concerning the contract. He never intended to deposit funds in escrow but he let Mathias believe he had made the deposits. The contract was improperly executed because the parties had not agreed in writing on the form of the escrow deposits. However, Mr. Bashant knowingly made false promises and operated under false pretenses by telling Mathias he would furnish her with copies of checks that did not exist. Mrs. Bashant signed the contract but never had any discussions with Mathias concerning the terms. There is no record evidence that Mrs. Bashant was aware of or participated in her husband's representations and promises to Mathias. On May 31, 1991, the Commission entered a final order against Mr. Bashant and the Real Estate Group, Inc. The Commission reprimanded Mr. Bashant's license, fined him, and placed him on one (1) year of probation for violation of Sections 475.25(1)(b), 475.25(1)(e), and 475.25(1)(k), Florida Statutes (1989). The basis of this disciplinary action included Mr. Bashant's failure to maintain trust funds and depositing and intermingling personal funds with trust funds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that: (1) Respondent Diana L. Bashant is not guilty of violating any Florida statute; and (2) Respondent Gregory J. Bashant is guilty of violating Sections 475.24(1)(b) and 475.24(1)(o), Florida Statutes. It is further recommended that the Commission require Respondent Gregory J. Bashant to pay an administrative fine of $2,000 and revoke his license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of December,1994. SUZANNE F. HOOD, Hearing Officer 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 19th day of December 1994. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact (FOF) submitted by the parties to this case. Petitioner's Proposed Findings of Fact 1-2. Accepted in FOF 1-2 except for subordinate information. 3-4. Accepted in FOF 4-5 except for subordinate information. 5. Accepted in FOF 3. 6-7. Accepted as modified in FOF 6. Accepted in FOF 7-8. Accepted in FOF 11 except as to placement in sequence of events 10-13. Accepted in substance in FOF 12-16. 14-25. Accepted in substance in FOF 19-32. Rejected. Accepted as modified in FOF 34. Accepted in FOF 36. Considered as an argument concerning the credibility of a witness. Respondent's Proposed Findings of Fact 1-2. Accepted in FOF 1-2. Accepted in substance in FOF 4-5. Accepted as subordinate information. There is no competent substantial evidence that Mr. Bashant ever presented a copy of Respondent's Exhibit 1 to Mathias. Rejected; no persuasive competent substantial evidence. Accepted in FOF 3. Accepted as subordinate information. Accept that Mr. Bashant prepared Petitioner's Exhibit 1 in FOF 4-5; balance of proposed finding not supported by persuasive competent substantial evidence. 9-13. Accepted in substance in FOF 8-13. Accepted in FOF 22-23. Accepted in substance in FOF 20. Accepted in FOF 21. Accepted in substance in FOF 24-25. Accepted in substance in FOF 24-25 except there is no persuasive competent substantial evidence that Mr. Bashant disclosed a financial problem at that time. 19-20. Accepted in substance in FOF 24-25. 21-22. Accepted in FOF 28 except for accuracy of January 29 date. Accepted in FOF 30. Accepted in FOF 35. COPIES FURNISHED: Theodore R. Gay, Esquire Senior Attorney Department of Business and Professional Regulation 401 North West 2nd Avenue, N607 Miami, Florida 33128 William D. Anderson, Esquire Anderson & Galante Post Office Box 288 Stuart, Florida 34995 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay General Counsel Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented for decision herein is whether or not Respondent's real estate brokers license should be disciplined because he engaged in acts and/or conduct amounting to fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust, and for failure to account and deliver1 in violation of Subsections 475.25(1)(b) and (d), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, including post-hearing memoranda, I hereby make the following relevant factual findings: During times material herein, Respondent was, and is, a licensed real estate broker in Florida and has been issued license number 0007278. (Petitioner's Exhibit 1). Maryland Properties, Inc. was a corporation organized under the laws of Florida during times material and incorporated as such on March 24, 1977 and was involuntarily dissolved on November 10, 1983. At times material, Respondent was President of Maryland Properties, Inc. (Petitioner's Exhibit 2). Prior to December, 1980, Mr. and Mrs. Emeterio Padron Cruz were the owners of lots 16 and 17, block 11, of Athol Subdivision, Dade County, Florida. (Petitioner's Exhibit 11) Padron Deposition-Page 5; Petitioner's Exhibits 12-Mrs. Padron Deposition-Pages 2 and 3; Petitioner's Exhibit 3). Mr. and Mrs. Padron were interested in selling lots 16 and 17 and Respondent, in his capacity as real estate broker, sought buyers on behalf of the Padrons. (TR 94). On September 6, 1980, a contract was obtained by the Respondent between Mr. and Mrs. Padron, as sellers, and Roberto Hernandez and/or assigns as buyer. According to the terms of the contract, a real estate commission of $650 was to be paid to Respondent. (TR 97). The transaction between the Padrons as sellers and Roberto Hernandez as buyers did not materialize and instead Respondent, through the entity Maryland Properties, Inc., purchased the property and a closing was held on December 1, 1980. Respondent became interested in the purchase of this property based on a need expressed by the Padrons that they needed to dispose of their property and they wished that Respondent would purchase the property along the same terms as Roberto Hernandez had previously agreed. In this regard, Respondent executed the closing documents as President of Maryland Properties, Inc., the purchaser of the Padron property. The Padrons were aware that Respondent was President of Maryland Properties, Inc., based on their review of the closing documents. Respondent received a $650 commission in his capacity as broker in the Padron to Maryland Properties, Inc. transaction. (Petitioner's Exhibit 13; Petitioner's Exhibit 11-Padron Deposition-Pages 13 and 14). As part of the Padron/Maryland Properties, Inc. transaction, a mortgage dated December 1, 1980 was given back to Padron by Maryland Properties, Inc. for $8,000. The mortgage deed and note were not recorded until March 11, 1981. Respondent prodded the Padrons to record the mortgage and to keep the note in a safe in the event that it was needed later on. Per Respondent's insistence, the Padrons finally recorded the mortgage and note on March 11, 1981. (Petitioner's Exhibit 4). On November 27, 1980, Maryland Properties, Inc., through its President, the Respondent, entered into a contract to sell the same lots (16 and 17) to Agustin R. and Gladys A. Verde (Respondent's Exhibit 1). The Maryland Properties, Inc./Verde transaction closed on February 4, 1981 without the Verdes or their attorney, Antonio Alonso, being aware of the Maryland Properties, Inc. to Padron Mortgage. At no time prior to closing did the Respondent reveal to the Verdes or Mr. Alonso the existence of the mortgage. Mr. Alonso, prior to closing, received and reviewed an abstract on the property which abstract did not contain the mortgage as it could not have since the mortgage was not recorded until subsequent to the Verde closing. Additionally, Respondent executed an affidavit prior to closing wherein it is stated that the property was free and clear of any lien or encumbrance. (Petitioner's Exhibit 15) The closing statement executed by Respondent speaks of a purchase money (first) mortgage, which mortgage was from the Verdes to Maryland Properties, Inc. (Petitioner's Exhibits 4, 5, 8, 14, 15; TR 70-77). Respondent, as President of Maryland Properties, Inc., failed to make the final mortgage payment of $4,000 to Padron when same became due on December 2, 1982. Padron foreclosed on the mortgage which action was initiated on December 1, 1983. Respondent entered a settlement to the foreclosure action and paid the mortgage deficiency, however, there remains outstanding an award for attorneys fees for the foreclosure action in favor of the Padron's attorney (Louis Sabatino).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent 's license number 0007278 be suspended for a period of six (6) months. RECOMMENDED this 27th day of May, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1986.
Findings Of Fact At all times pertinent to the issues herein the Respondent, Linda H. Abraham, was licensed by the State of Florida as a real estate broker under license number 0323486. During the months of February and March 1983 Martha L. Tew owned a parcel of waterfront property located in Panama City Beach which was identified as being for sale by a sign on the property reflecting her husband's real estate company. Her husband was Ronald Eugene Tew and Mrs. Tew also held a salesman's license. Mr. Tew was contacted by Gregory A. Peaden, a contractor and developer in the Panama City Beach area on several occasions prior to March 1983 with offers to purchase the Tew property. The contacts with Mr. Peaden subsequently culminated in a contract dated March 8, 1983, between Greg Peaden, Inc., and the Tews in the amount of, initially, $180,000.00. During the negotiations for the property, Mr. Peaden had introduced the Respondent to the Tews as his broker. When, at the time of Use contract, Mr. Peaden advised the Tews he wanted Respondent to get a commission for the sale, Mr. Tew refused to pay any commission indicating that Respondent had performed no service for him; that he, Tew, was a broker himself; and that he had no intention of paying any commission to the Respondent or to anyone, for that matter. After some further negotiation, a second contract was prepared and agreed upon wherein the contract price was raised to $189,000.00 and the Respondent's commission was to be paid with the additional money from Mr. Peaden. The contract in question executed by the parties on March 8, 1983, reflected that the sum of $5,000.00 deposit was paid to Linda Abraham, Inc., by check. Mr. Tew contends that at this point he was led to believe that Respondent had the $5,000.00 check and, he contends, he would not have signed the contract if he had known that the check had not been delivered and placed in Respondent's escrow account. The actual signing of the contract took place in Respondent's office, a mobile home which she shared with Mr. Peaden's business. This trailer home was described as having Mr. Peaden's office on one end, and Respondent's on the other, with the living-kitchen area in the middle used as a reception area for both businesses. Mr. Peaden contends that once the contract was signed by the Tews, he gave a check drawn on one of his business accounts, that of Peaden and Guerino, a property management company he owned, to his secretary, Judy White, to deposit in Respondent's escrow account and thereafter promptly forgot about the matter until the date scheduled for closing, two months in the future. Ms. white, on the other hand, contends that Mr. Peaden at no time gave her a check for $5,000.00 to deposit to Respondent's escrow account. It is her contention that when she received the contract after it was signed, she, on her own, inserted the receipt portion on the bottom of the second page and signed as having received it merely to complete the contract. At the time, she contends, she did not know if the deposit was received from Peaden or not. She has never signed a contract like this before without a deposit and cannot give any other reason why she did it on this occasion. She is certain, however, that at no time did Mr. Peaden ever give her a $5,000.00 check or tell her to draw one for his signature on March 8, 1983, or, for that matter, at any time thereafter. What is more, neither Mr. Peaden nor the Respondent, at any time after the signing of the contract and prior to her departure under less than friendly circumstances approximately a week or so later, ever asked her whether she had made the escrow deposit or discussed it with her at all. Ms. white contends that she left Mr. Peaden's employ because he expected her to perform certain functions she was unwilling to do. When she left his employ, she did not feel there was any unfinished business that needed her immediate attention. To the best of her recollection, there were no sales contracts or deposits left in or on her desk - only bills. According to Respondent, the $5,000.00 deposit by Mr. Peaden was to stay in her escrow account. She understood Mr. Peaden was going to arrange with the bank to borrow the entire cash payment called for under the contract, including the deposit, and when that was done, it was her intention to give him back his $5,000.00 check. Under these circumstances, the amount in escrow would never be paid to the sellers but would be returned to Mr. Peaden and the Tews would receive the entire cash amount called for by the contract from the proceeds of the bank loan. Respondent also indicated that this procedure had been followed at least once, in a prior transaction. Under the circumstances, it is clear that no deposit was ever received from Mr. Peaden nor was it placed in Respondent's escrow account. Therefore, the contract, dated on March 8, 1983, was false in that it represented a $5,000.00 deposit had been received. The check for $5,000.00 dated March 8, 1983, payable to Linda Abraham, Inc. and drawn by Mr. Peaden on the Peaden and Guerino account with the stub admitted to show the date of issuance, does not establish that it was written on March 8, 1983, as contended. This check, number 1349, comes after two other checks, 1347 and 1348, which bear dates of April 4 and September 7, 1983 respectively. Mr. Peaden's explanation that the checks were drafted out of sequence is non-persuasive. Of greater probative value is the fact that neither Mr. Peaden nor Respondent bothered to review their bank statements on a regular basis. The check in question was drawn on an account not related to the construction and development business of Greg Peaden, Inc. Further, examination of Respondent's escrow account reflects that there were approximately eleven transactions over a three year period even though, according to her, she handled numerous other closings as well as this. Her explanation is that in most cases the attorney handling the closing served as escrow agent even though she was the sales broker. Her explanation is not credible. This appears to be a classic situation of movement of accounts to satisfy a particular end. The contract called for closing of the sale to be held on or before May 8, 1983, in the office of Panama Title Company. May 8, 1983, fell on a Sunday. As a result, the closing would not have been held that day, but it was not held the following day, Monday, May 9, 1983 either. Mr. Peaden admits that he had not checked with Panama Title prior to May 9 to see if everything was prepared for the closing. Instead, he contacted the title company for the first time at approximately noon on May 9. Apparently he received disquieting information because he thereafter called his attorney, Mr. Hutto, and asked him to check with the title company to see if and when the closing would be held. Mr. Hutto's inquiry reflected that the title insurance binder was ready but the closing statement and the package were not because the title company required a copy of the contract. At this point Mr. Peaden immediately had a copy of the contract delivered to the title company but later that day was advised that the closing still could not be held because of the failure to provide a survey. Mr. Hutto indicates that the reason given was that the release clauses called for in the contract required the survey to be furnished though he did not necessarily agree with that. In any event, closing was not held on May 9. At this time both Mr. Peaden and Respondent allegedly became concerned about the $5,000.00 deposit. Admittedly, neither had concerned themselves with it from the time of the signing of the contract. At this point, Mr. Peaden indicates that he examined his bank records which failed to show the deposit being made and his subsequent search of Ms. White's desk finally revealed the check, undeposited, still there. On May 11, 1983, a $5,000.00 deposit was made to the account on which the deposit check was drawn and on the same day, May 11, 1983 check number 1349, in the amount of $5,000.00 was presented against the account. When on May 10, 1983, Mr. Peaden and Respondent went to Mr. Hutto's office the primary reason for the visit was because Mr. Peaden had heard that the Tews were planning to sell the property in question to someone else at a price much higher than that agreed upon for the sale to Peaden. At this point Mr. Hutto indicated that if Peaden so desired, Hutto could "fix up the contract to jam up the works" until he could do something about it. His examination of the contract revealed that it was not recorded or acknowledged and under the laws of Florida, acknowledgment is required in order for a contract to be recorded. Hutto asked the Respondent if she had seen the parties sign the contract and when she said that she had, he had his secretary prepare a jurat. Unfortunately, his secretary prepared an affidavit type notary jurat rather than an acknowledgment and Hutto quickly admits that he did not look at it when it was given back to him. He says that if he had, he would have had it changed but in any event, without looking at what was given him, he gave it to the Respondent with the implication, at least, that she should notarize it and have the contract recorded. According to Hutto, Peaden, and the Respondent, the sole purpose for notarization and recordation was to preserve the status quo to protect Mr. Peaden's interest in the property so that the matter could be adjudicated in a lawsuit which was soon to be filed. Respondent contends she never intended any misconduct throughout this transaction nor did she do any of the things alleged in the Administrative Complaint. She contends she never saw the check which Mr. Peaden allegedly gave to his secretary for deposit to her escrow account. She merely assumed that it was given and never checked to insure that it had been placed in her account. She does not know why Mr. Peaden did not give her the check. When she took the contract to the Tews, she was operating under the assumption that the check had been received but did not verify this to insure that it had. She contends that since she represented the buyer, her duties were limited to insuring that he performed and this made it simple. She did not check on him because she had had so much experience with him, him being by far her largest account, if he said something, she believed him and when the contract was executed, she merely instructed the secretary, Judy White, to make the file and did not check on it again. As to the recordation and the notarization after the fact, she acted upon the advice of counsel, she states, and did what was suggested to her by Mr. Hutto. It should be noted, however, that Mr. Hutto did not represent her but instead represented Mr. Peaden and while because of her long-standing relationship with him and Mr. Hutto, she may have felt safe in relying on his advice, the fact remains that Hutto was not her attorney.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered real estate broker in Florida be suspended for six months and that she pay an administrative fine of $2,000.00. RECOMMENDED this 6th day of June, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of June, 1985. COPIES FURNISHED: Arthur Shell, Esquire Department of Professional Regulation Division of Real Estate 400 W. Robinson Street Orlando, Florida 32801 John D. O'Brien, Esquire P. O. Box 1218 Panama City, Florida 32402 Harold Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material here to, Respondent has been a licensed real estate broker under the laws of the State of Florida, having been issued license number 0044295. On or about June 4, 1981, Respondent, representing himself to Doris Colon as the duly appointed, qualified and acting broker for Alvin Katz if, and representing that Alvin Katzif was the owner of certain real property located at 636-638 Southwest Eighth Avenue, Miami, Florida, accepted from Colon a written offer to purchase said property. Colon's offer was accompanied by a deposit of $5,000, receipt of which was acknowledged by Respondent on or about June 6, 1981. That deposit was delivered to the Respondent, as broker, to be held by him in escrow under the terms of the Deposit Receipt. The vendor named in the Deposit Receipt Agreement Alvin Katzif, was unable to sell the property in accordance with the terms expressed in that Deposit Receipt Agreement. Therefore, the sale was never consummated. Approximately one month after signing the Deposit Receipt Agreement, Alvin Katzif advised Respondent that he did not hold title to the property and that there were numerous and diverse claims to the property. Respondent never placed Colon's $5,000 deposit in an escrow account but rather placed the deposit in a personal account. Colon, through counsel, made a demand for the $5,000 earnest money deposit. Respondent failed to provide Colon with an accounting or delivery of her deposit until such time as she obtained a civil judgment against him. At no time did Respondent request an escrow disbursement order or submit the matter to arbitration or seek interpleader. Respondent converted Colon's $5,000 earnest money deposit to his own use. On or about the same day that Colon gave Respondent her $5,000 deposit made payable to him, Respondent gave Colon a check for $10,000 made payable to her. The $10,000 paid to Colon was not a loan to her and had no relation to the Katzif/Colon transaction. Rather, the $10,000 was a deposit toward the purchase of a duplex owned by Colon in which Respondent was then living as a tenant and which he desired to purchase from Colon. That transaction was completed, and the closing took place on August 12, 1981. The closing statement reflects credit given to Respondent of $10,000 toward the purchase price of the duplex he bought from Colon. The duplex Colon sold to Respondent is located at 2931-41 Southwest Sixth Street, Miami, Florida. When Respondent gave Colon his $10,000 deposit toward the purchase price of the duplex which he bought from her, he took her to friends of his at Intercontinental Bank, where she opened an account. She then wrote the $5,000 check out of that account, which check was the deposit which accompanied her offer on the property she wished to purchase from Katzif. In other words, the only relationship between the $10,000 check given to Colon by Respondent and the $5,000 check given to Respondent by Colon is that the fact that Respondent gave Colon a $10,000 down payment on the duplex he was purchasing from her gave Colon the opportunity to make an offer on the Katzif property using $5,000 of the $10,000 as a deposit on the offer to Katzif.
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 allegations contained in the Administrative Complaint and revoking his real estate broker license number 0044295. DONE and RECOMMENDED this 10th day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 10th day of August, 1983. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Martin I. Carlin, Esquire 3000 Biscayne Boulevard, Suite 402 Miami, Florida 33137 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue is whether Respondent committed the offenses alleged by the Administrative Complaint, and, if she did, the penalty that should be imposed.
Findings Of Fact Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and prosecuting complaints against real estate professionals, including licensed real estate salesmen. At all times pertinent to this case, Respondent, America Canizales, was licensed by Petitioner as a real estate salesman. At the time of the hearing, however, Respondent's license was on inactive status. Respondent was the real estate salesman who represented Elvira Martinez when Ms. Martinez bought her apartment in the middle of 1987. As a result of her professional dealings with Ms. Martinez, Respondent learned that Ms. Martinez was interested in investing in real estate. On December 4, 1987, Respondent persuaded Ms. Martinez to enter into a real estate transaction with her. Respondent intended to purchase a house for the sum of $34,000, but she did not have the funds necessary to close the transaction. Respondent needed an additional $5,000 to apply toward the purchase price and to pay the costs of closing. The house was to be purchased by Respondent in her individual capacity in a transaction that was independent of her status as a real estate salesman. The agreement executed by Respondent and Ms. Martinez on December 4, 1987, provided for Ms. Martinez to give to Respondent the sum of $5,000. In exchange for this money, Respondent agreed that she would convey to Ms. Martinez one-half interest in the $34,000 house after she had acquired title to the property. In the event the transaction did net close and Respondent did not obtain title to the house, Respondent was to return to Ms. Martinez the sum of $5,000 without the payment of interest. Between December 4, 1987, and December 8, 1987, Ms. Martinez gave to Respondent a check made payable to America Canizales in the amount of $5,000. This check, dated December 9, 1987, was to be held in trust by Respondent until the closing on the purchase of the $34,000 house. At no time did Respondent deposit the check in a bank account. There was no evidence that Respondent took any action to safeguard Ms. Martinez's check or the funds represented by the check. Although the check was dated December 9, 1987, the check was cashed on December 8, 1987, at the bank used by Ms. Martinez. The person who cashed the check endorsed it in the name of America Canizales. On or about December 10, 1987, Respondent told Ms. Martinez that Respondent's husband had stolen all of Respondent's money and that he had also stolen Ms. Martinez's check. Respondent also told Ms. Martinez that because of the theft, she would be unable to close their contemplated transaction and promised to repay the $5,000. Respondent offered no further explanation or accounting for the funds. Respondent made repeated promises to repay Ms. Martinez the sum of $5,000 on the occasions Ms. Martinez was able to contact her. Thereafter, Respondent moved from the State of Florida without letting Ms. Martinez know where she could be reached. When Ms. Martinez located Respondent in Chicago, Illinois, Respondent again promised to repay Ms. Martinez. As of the time of the formal hearing, Respondent had returned to Dade County, Florida, but she had made no effort to repay Ms. Martinez the sum of $5,000. Respondent repeatedly misled Ms. Martinez as to her intentions to repay her. The factual allegations of the Administrative Complaint filed by Petitioner to "initiate this case were denied by Respondent. The request for a formal hearing was timely filed by Respondent.
Recommendation Based on the foregoing Findings of `Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a final order which finds that Respondent violated Section 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint. It is further recommended that the final order revoke the real estate salesman's license issued to Respondent, America Canizales. DONE and ORDERED this 30th day of January, 1990, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1990. COPIES FURNISHED: John R. Alexander, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 America Canizales 158 West 10th Street Hialeah, Florida 33010 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Darlene Keller, Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue is whether Respondents' real estate licenses should be disciplined on the ground that Respondents allegedly violated a rule and various provisions within Chapter 475, Florida Statutes, as charged in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondents, Edward D. Armbruster and Colleen Michele Armbruster, were licensed real estate brokers having been issued license numbers 0002159 and 0362890, respectively, by Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). Respondents served as qualifying brokers and officers of Respondent, Armbruster Realty, Inc., a corporation registered as a real estate broker and located at 1031 West Nelson Avenue, DeFuniak Springs, Florida. The corporation holds license number 0211855, also issued by the Division. On July 10, 1996, Gerald and Joyce Singleton, who had just relocated to California, entered into a contract with James B. and Joyce Patten to sell their single-family residence located on Madison Street in the City of Freeport, Florida, for a price of $78,000.00. The contract called for the Pattens to pay $1,000.00 as an earnest money deposit, to be held in escrow by Respondents. The contract further provided that "[c]losing shall be within 30 days (more or less) after acceptance of this contract," and that "[i]n the event that buyer defaults and deposit is forfeited, it is agreed said deposit shall be divided equally between seller and broker." The transaction was handled by Geraldine Dillon (Dillon), a salesperson in Respondents' office, who is now retired. Because the Pattens had recently moved to Walton County from Washington State, and they were temporarily living with a relative in a mobile home, the time for closing was of the essence. Accordingly, the Pattens inserted into the contract a provision requiring that a closing be held within "30 days (more or less)." This meant that a closing should be held on or about August 10, 1996, give or take a few days. The parties acknowledge that property boundary problems were somewhat common in certain areas of Freeport, including the area where the subject property was located. To satisfy the bank and title company, a surveyor was engaged to prepare a survey of the property. However, the parties agree that the surveyor noted problems with the boundaries of the lot. When a second surveyor would not undertake the survey because of similar boundary problems, Joyce Patten, who was the principal negotiator for the couple, notified Dillon that they did not wish to close because of potential title problems and wanted a refund of their deposit. Notwithstanding this concern, Dillon advised Joyce Patten that a third surveyor would be hired, at the seller's expense, and he could "certify" the property. Although Joyce Patten expressed concern that the bank might not accept a third survey after two earlier ones had failed, and she did not want to pay for another survey, she did not instruct Dillon to stop the process. Accordingly, Dillon engaged the services of Tommy Jenkins, a local surveyor, to perform another survey. After a certified survey was obtained by Jenkins on August 12, 1996, which Respondents represent without contradiction satisfied the lender and title company, a closing was scheduled within the next few days. This closing date generally conformed to the requirement that a closing be held by August 10, 1996, "more or less." The seller, who by now had relocated to California, flew to Florida for the closing, and the title company prepared a closing statement and package. Just before the closing, however, Respondents learned through a representative of the title company that the Pattens were "cancelling the closing," apparently in violation of the contract. Shortly after the aborted closing, Joyce Patten requested that Dillon return their deposit. By this time, the Pattens had already entered into a second contract to buy another home in the same area and closed on that property before the end of August. Respondents were never informed of this fact by the Pattens. On August 21, 1996, Colleen Armbruster prepared a rather lengthy letter to the Pattens (with a copy to the sellers) in which she acknowledged that they had orally requested from Dillon that their escrow deposit be returned. The letter has been received in evidence as Petitioner's Exhibit 4. Armbruster stated that she was "perplexed" that they were demanding a refund of their earnest money deposit, given the fact that the seller had "met the terms and conditions of the sale." Armbruster outlined the three reasons in the contract which would allow the Pattens to withdraw without forfeiting their deposit, but noted that none were applicable here. Accordingly, she advised them that the seller would be consulted as to his wishes regarding the deposit, and that the Pattens should contact her if they had any questions. Through oversight, however, she did not include a notice to the Pattens that they must respond to her letter within a stated period of time reaffirming their demand for the trust funds, or the deposit thereafter would be disbursed pursuant to the contract. By failing to include this specific language, and sending the letter by regular rather than certified mail, return receipt requested, Respondents committed a technical, albeit minor, violation of an agency rule. Even so, the Pattens acknowledged receiving the letter, and there is no reason to believe that they did not understand its import, especially the requirement that they contact the broker if they disagreed with the proposed disbursement of the money. It can be reasonably inferred that the Pattens did not respond because they "figured [they weren't] going to be able to get [their] money back" due to their failure to perform. On September 13, 1996, the seller's attorney advised the Pattens by letter that the seller considered the deposit forfeited pursuant to paragraph 15(a) of the contract, which pertains to the "Default" provisions. The Pattens never responded to either letter, and they also failed to respond to telephone calls made by Respondents or their agents regarding this matter. In view of the Pattens' lack of response or reaffirmance of their demand, and the fact that they had already closed on another property, Respondents logically and fairly assumed that the Pattens were in agreement with the disbursement procedures outlined in Coleen Armbruster's letter of August 21. Accordingly, on September 17, 1996, Edward Armbruster, who had not been involved in this transaction to date, in good faith signed two disbursement checks giving $697.50 to the seller and retaining the balance for his firm. This division was consistent with the terms of the contract. In making this disbursement, there was no intent on the part of Respondents to trick, deceive, breach their trust, or in any way unlawfully deprive the Pattens of their deposit. Respondents did not notify the Florida Real Estate Commission (Commission) that they had received conflicting demands for a deposit, nor institute any other procedures regarding the deposit, since they no longer had any good faith doubt as to whom was entitled to their trust funds. This was because the Pattens had failed to respond to letters and telephone calls regarding the sellers' claim to the deposit. There is no evidence that Respondents have ever been the subject of prior disciplinary action during their lengthy tenure as licensees. At the same time, it is noted that Respondents acted in good faith throughout the process and genuinely believed that there was no dispute. It should also be recognized that, for at least part of the time, the Pattens were working two contracts simultaneously without advising the realtors.
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 finding Respondents guilty of a technical violation of Rule 61J2-10.032(1), Florida Administrative Code, and Section 475.25(1)(e), Florida Statutes, and that they be given a reprimand. All other charges should be dismissed. DONE AND ENTERED this 28th day of July, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 28th day of July, 1998. COPIES FURNISHED: Henry M. Solares, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Christine M. Ryall, Esquire 400 West Robinson Street Suite N-308 Orlando, Florida 32801-1772 Edward D. Armbruster Colleen M. Armbruster Post Office Box 635 DeFuniak Springs, Florida 32433 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At times pertinent hereto, Respondents were the holders of Florida real estate licenses. During all times material hereto, Respondent, Robert F. Nagel was licensed and operating as a real estate broker. Additionally, Respondent Nagel was the qualifying broker for Bluff's Realty, Inc. During times material, Respondents had an open listing agreement with Angelo Traina to sell his property at 401 Ocean Bluffs Boulevard, 305, in Jupiter, Florida. On or about December 7, 1986, Respondents prepared a purchase-sales contract signed by Carl and Lila Holback, as purchasers and Angelo Traina, as seller, for the purchase of the above referred property for the price of $98,450.00. The sales contract called for a $1,000.00 deposit to be held in escrow by Respondents. An additional $8,000.00 was to be deposited in escrow with the Respondents upon acceptance by the Seller. The contract signed by the Holbacks and Traina's contained a failure of performance provision. The failure of performance provision was contained in paragraph S of the contract and provided essentially that if the buyer failed to perform as required per the terms of the contract, the deposit could be retained by the seller as liquidated damages, or seller, at seller's option, could proceed at law or in equity to enforce the seller's legal rights under the contract. On the following day, December 8, 1986, the Holbacks informed the Respondents that they were no longer desirous of purchasing the Traina property. The Holbacks requested that the $1,000.00 deposit instead be transferred from the Traina/Holback transaction to a new contract to purchase a different condominium unit. This was done on December 8, 1986, as directed by the Holbacks without the knowledge and consent of Angelo Traina. The Holbacks considered that they had been pressured by Mr. Traina into executing the purchase agreement and that after reflection on the "duress" exerted by Mr. Traina, the Holbacks considered that they had a 72 hour period in which they could withdraw from the transaction. They therefore advised Respondents that they were no longer desirous of purchasing the Traina property. The Holbacks closed on a different property on January 12, 1987. Subsequent to December 8, 1986, but prior to January 13, 1987, Respondents offered to pay Mr. Traina $500.00 in return for a release from any potential liability under the contract. This offer was rejected by Mr. Traina. Thereafter, on or about January 13, 1987, Mr. Traina retained counsel who demanded a payment of $10,000.00 from Respondents for alleged damages for breach of a fiduciary duty. The Respondents refused to pay $10,000.00 to or on behalf of Angelo Traina based on the listing agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondents for Two Thousand Dollars (2,000.00) payable within thirty (30) days of entry of Petitioner's Final Order. RECOMMENDED this 25th day of August, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 25th day of August, 1988. COPIES FURNISHED: John L. Bryan, Jr., Esquire Scott, Royce, Harris, Bryan & Hyland, P.A. 450 Royal Palm Way Post Office Box 2664 Palm Beach, Florida 33480 Steven W. Johnson, Esquire Department of Professional Regulation- Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Laurence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Should Respondent's license as a real estate broker be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency charged with the responsibility of investigating and enforcing the provisions of Chapter 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate broker in the State of Florida, issued license number 0152815 in accordance with Chapter 475, Florida Statutes. Robert L. Purlee and Doris A. Purlee (Purlees) conveyed certain real property located at Unit 1303-A, Jamestown Condominiums, within Pinellas County, Florida, to Ralph F. Marotte and Eve K. Marotte (Marottes), on June 18, 1993, for an agreed upon sum of $15,000, with installments due over a period of 120 months, at the rate of $181,99 per month, beginning July 15, 1993. Since there was no express language in the deed to express a contrary intent, the conveyance to the Marottes created an estate by the entirety which was not available to answer for the individual debts of either of the tenants. The Marottes executed a mortgage and ad promissory note creating a lien against the property in favor of the Purlees, to secure the timely payment of the sum owed by the Marottes. At the time the Marottes purchased the property in question from the Purlees, there were no other liens or encumbrances against the property. At the time the deed was recorded, there was two personal judgments filed of record against Ralph F. Marotte, individually, but no personal judgments filed of record against Ralph F. Marotte and Eve K. Marotte, jointly or as husband and wife, or Eve K. Marotte, individually. Since no copies of these judgments, certified or otherwise, were introduced as evidence, and David Eaton appeared to be confused about these judgments, this finding is based on the testimony of Eve K. Marotte which I find credible. On November 10, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We are unable to financially own this unit, therefore, we wish to deed it back to you and your wife, and record it in the courthouse. Rather than go thru foreclosure proceedings and lawyer’s fees etc., thought the simplest best way for both of us is to just return the property back to you both, and have the tenant send her rent payment directly to you. We have prepared the deed - and after it is recorded - have the courthouse send it to you directly. (Emphasis Supplied) * * * On December 8, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: Attached is a copy of the Quit Claim Deed - which is being recorded and will be mailed to you directly. (Emphasis Supplied) * * * On January 6, 1994, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We went to the courthouse to record the deed, and realized that we did not take the mortgage off, so we are enclosing a satisfaction of mortgage, so that we can turn the property back to you- and you will then own it free and clear as you did before. As soon as we received this paper from you, will turn over everything, to you, that is, keys, etc. (Inventory remains the same). (Emphasis Supplied) * * * From the notation on the quit claim deed it appears that the Marottes attempted to record the deed at the courthouse but changed their mind as indicated in the letter. The Purlees executed the satisfaction of mortgage and posted it with the United States Postal Service for delivery to the Marottes. Subsequently, the Purlees discussed the matter with their attorney, David A. Eaton, who advised the Purlees to have the satisfaction of mortgage retrieved from the postal service. This was accomplished, and the Marottes did not receive the satisfaction of mortgage. Therefore, the Marottes did not record the quit claim deed transferring title back to the Purlees. Based on the testimony of Eve K. Marotte which I find credible, Eve K. Marotte continued in her effort to deed the property back to the Purlees, and even discussed the possibility of satisfying the personal judgments against Ralph F. Marotte in the process. In fact, Respondent even arranged for the sale of the property but that did not prove fruitful either. At the time the Marottes attempted to deed the property back to the Purlees, the Marottes did not advise the Purlees of the personal judgments against Ralph F. Marotte, individually. Since the conveyance of the property to the Marottes created an estate by the entirety, the property would not have been subject to any judgments against Ralph F. Marotte, individually upon the Marottes deeding the property back to the Purlees. There was no intent on the part of the Respondent to “saddle” the Purlees with Ralph F. Marotte’s personal judgments. Likewise, there was no intent on the part of Respondent to mislead or misrepresent the circumstances surrounding the attempt to “deed back” the property or to induce the Purlees to execute a satisfaction of mortgage so that the Marottes could record such satisfaction or mortgage without recording the quit claim deed and thereby have the property free and clear of the mortgage. Although the Marottes did make some of the mortgage payments, they did not make all of the payments as contemplated by the mortgage and promissory note. Their failure to make mortgage payments was due to their financial condition and not that the Marottes were intentionally attempting to deprive the Purlees of the property without paying for the property. The Marottes collected some rent from the property but apparently did not apply this money toward the mortgage payment. However, there was no evidence, other than the requirement of making the mortgage payments, that the Marottes were required to pay the rent over to the Purlees. On or about November 6. 1995, the Purlees filed a complaint with the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, against the Marottes alleging, inter alia, that Respondent committed fraud and dishonest dealing in a real estate transaction. On a Motion for Summary Judgment filed by the Purlees, the court entered a Final Judgment Against Licensed Real Estate Broker, Eve K. Marotte, for Monetary Damages Arising Out of Fraudulent Conduct in a Real Estate Brokerage Transaction on March 1, 1996. Additionally, the court entered a Final Judgment Against Eve K. Marotte and Ralph F. Marotte for the total sum of $95, 454.95 which included $22, 284.54 in actual damages, $66,853.62 in trouble damages pursuant to Section 772.11, Florida Statutes, $5,250.00 in attorney’s fees, and $1,066.79 in taxable costs. Because of this judgment and other financial and personal circumstances surrounding the Respondent’s life at that time, the Respondent filed for bankruptcy which eventually “wiped out” this judgment. Subsequently, the Purlees filed a separate proceeding for foreclosure of the mortgage, and obtained title to the property by foreclosure sale on or about August 1997. Between the time of the initiation of the foreclosure proceeding and gaining title to the property, the Purlees had a receiver appointed to receive the rent on the property. Although David Eaton testified that the Marottes failed to turn over rents during this period, there is insufficient evidence to show that the Marottes received any rent during this period or that the property was rented at all times during this period. Clearly, after engaging an attorney and obtaining the large judgment, the Purlees were not interested in taking the property back without the judgment being satisfied. Likewise, it is equally clear that Respondent was not financially able to pay the judgment. Respondent did not intentionally or otherwise misrepresent the facts in order to induce the Purlees to accept the deed back and release her from her obligation, or act in a fraudulent manner in order to convince the Purlees to release Respondent from her obligation, or act dishonestly in her dealings with the Purlees.
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 dismissing both Count I and Count II of the Administrative Complaint. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geofrrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Orlando, Florida 32801 Eve K. Marotte, pro se 2616 46th Terrace North St. Petersburg, Florida 33714
The Issue The issues in this case are whether Respondents violated Subsection 475.25(1)(k), Florida Statutes (1999), by failing to maintain an escrow deposit in a trust account until properly authorized; whether Respondents violated Subsection 475.25(1)(d)1, Florida Statutes, by failing to account for or deliver funds; whether Respondents violated Subsection 475.25(1)(b), Florida Statutes, by committing a breach of trust or culpable negligence in a business transaction; and, if so, whether the proposed penalty is reasonable.
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Simons is licensed in the state as a real estate broker/officer of Respondent, Home Hunters USA, Inc. (Home Hunters), pursuant to license number BK-0159866. Home Hunters is a corporation registered as a Florida real estate broker pursuant to license number CQ-0146369. On March 21, 1996, Respondents entered into a property management contract (amended contract) with Max and Mary Newman (Newmans). The amended contract authorized Respondents to lease and manage real property owned by the Newmans and located at 1555 Whiskey Creek Drive, Ft. Myers, Florida 33919 (the property). The original contract that Respondents proposed to the Newmans was dated March 11, 1996. The original contract contained a clause that would have obligated the Newmans to pay a sales commission to Respondents in the event Respondents sold the property to a tenant or certain other purchasers. The Newmans deleted that language from the original contract, initialed the deletion, dated the deletion "3/21/96," signed the amended contract on March 21, 1996, and returned the amended contract to Respondents. The deleted language in the amended contract signed by the Newmans provided: Owner agrees to pay Agent a sales commission for the sale of said property to the tenant, or any other the tenant relates or refers. Agent will perform any services normally performed to consummate the sale to the tenant in a professional and diligent manner. Owner shall notify Agent at earliest possible time so that Agent may perform services (prequalify, arrange financing, closing, repairs, etc.). It is the owners [sic] responsibility to pay said fee to Agent upon closing of sale. Petitioner's Exhibit 5 (P-5) at 19 (the second unnumbered page of the exhibit). On or about February 1, 1999, Respondents brokered a lease of the property from the Newmans to Ms. Lilly Gilson (Gilson). Mr. Newman signed the lease agreement on February 14, 1999, and Gilson signed it on February 23, 1999. The lease agreement, in relevant part, obligated the Newmans to pay Respondents a "fee" in the event the "tenant should enter into a lease purchase, lease option, or purchase through their tenancy." The lease agreement states that the fee is for Respondents "serving the sale as a broker" but does not specify the amount of the fee, does not express the fee as a percentage of the purchase price, and does not otherwise specify how the fee is to be determined. Neither of the Respondents is a signatory to the lease agreement. At the time Gilson entered into the lease agreement, Gilson paid a deposit of $650 to Respondents as a security deposit in accordance with the lease agreement. Respondents placed this deposit into a trust account. At some point prior to December 1999, the Newmans entered into a purchase and sale contract to sell the property to Mr. Gary Newman (Buyer). The Buyer is unrelated to the Newmans, but is a relative of Gilson. The Newmans closed on the sale to the Buyer on December 28, 1999. The parties to the sale used other brokers in the transaction over Respondents' objections, and neither of the Respondents served the sale as a broker. The closing statement shows that the Buyer was obligated to pay the $635 security deposit to the Newmans. Subsequent to the closing, Respondents transferred the security deposit from their trust account to their operating account. Simons believed he was entitled to a commission on the sale from the Newmans to Buyer. Respondents had actual knowledge that the Newmans claimed entitlement to the security deposit and disputed Respondents' entitlement to the security deposit. Simons was aware as early as December 11, 1999, that the Newmans did not knowingly consent to pay Respondents a commission on the sale transaction. Respondents failed to notify the Florida Real Estate Commission (Commission) of the dispute concerning entitlement to the security deposit. Respondents did not institute the settlement procedures prescribed in Subsection 475.25(1)(d)1, Florida Statutes (1999).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that Respondents violated Subsections 475.25(1)(b), (d), and (k), Florida Statutes (1999), by committing the acts alleged in the Administrative Complaint; imposing a fine of $1,000 against each licensee; and suspending Respondents' licenses concurrently for 30 days. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 4th day of December, 2003. COPIES FURNISHED: Christopher J. DeCosta, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801-N Orlando, Florida 32801 Larry A. Simons Home Hunters USA, Inc. 1415 Colonial Boulevard, Suite 3 Fort Myers, Florida 33907 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802-N Orlando, Florida 32801-1772
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is now and was at all times material hereto a licensed real estate salesman in the State of Florida, having been issued license number 00390879. The last license issued to Respondent was in 1988 as a salesman with Atlantic Marketing Realty, Inc., 224 Commercial Boulevard, Fort Lauderdale, Florida 33308. On July 26, 1984, a Grand Jury indictment was filed against Respondent in the United States District Court for the Middle District of Florida and was assigned case number 84-67-CR-ORL-18. By Count Two of the indictment Respondent was charged with having sold, transferred, or delivered approximately 1,000 counterfeit Federal Reserve Notes in the denomination of $100 in violation of Title 18, United States Code, Section 473. On September 28, 1984, Respondent entered into a "Plea Agreement" in which he agreed to plead guilty to Count Two of the indictment filed in case number 84-67-CR-ORL-18. By this Plea Agreement, Respondent acknowledged that he entered into the agreement freely and voluntarily. Respondent acknowledged his understanding of the nature of the offense to which he agreed to plead guilty and the penalties therefor. The factual basis for his plea includes an admission that he knowingly delivered 1000 counterfeit $100 bills to two individuals at a motel in Daytona Beach, Florida, for which he received approximately $15,000. On November 19, 1984, Respondent entered a plea of guilty to Count Two of the indictment, a felony. He was adjudicated guilty of this felony offense and sentenced to three years in prison. Respondent served approximately ten months of the three year sentence at the Federal Correctional Institute in Lexington, Kentucky. Upon his release from federal prison, Respondent spent four months at a halfway house in Fort Lauderdale, Florida. Respondent was not incarcerated at the time the Administrative Complaint was filed or at the time of the formal hearing. Respondent contends that he thought that he was working for the federal government when he committed the acts which resulted in his incarceration. This contention is rejected as lacking credibility and as being contrary to the Respondent's Plea Agreement. There is a dispute in the record as to whether Respondent notified Petitioner in writing as to his criminal conviction or his subsequent incarceration within thirty days of those events. Respondent contends that he notified Petitioner verbally and in writing of these events, but he was unable to identify the person he contends he notified verbally, nor did he produce a copy of his alleged written notification. Petitioner's records reflect no written notification from Respondent or from anyone on his behalf. This dispute is resolved by finding that Respondent did not notify Petitioner in writing as to his criminal conviction or his subsequent incarceration.
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 which finds that Respondent violated the provisions of Section 475.25(1)(b),(f), and (p), Florida Statutes, and which revokes all real estate licenses previously issued Respondent. It is further recommended that no administrative fines be entered against Respondent. RECOMMENDED this 13th day of September, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3568 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact contained in paragraph 2 are rejected as being contrary to the evidence. Respondent's licensure is as a real estate salesman, not as a real estate broker. Whether Respondent was licensed as a broker or as a salesman would make no difference in the recommendation made as to the penalty to be imposed. All other proposed findings of fact are adopted in material part by the Recommended Order. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Post Office Box 1900 Orlando, Florida 32802 William Richard Rossmeyer 180 Isle of Venice, #125 Post Office Box 7412 Fort Lauderdale, Florida 33338 Darlene F. Keller Division Director Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
