The Issue Whether or not Respondents' Florida real estate licenses should be disciplined for violation of Section 475.25(1)(b) F.S., by dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction; Section 475.25(1)(d)1. F.S., failure to account for or deliver funds; Section 475.25(1)(k) F.S., failure to maintain trust funds in their real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized; and Section 475.25(1)(e) and Rule 61J2-10.032(1) F.A.C. for failure to provide written notification to the Real Estate Commission upon receiving conflicting demands within 15 business days of the last party's demand or upon a good faith doubt as to who is entitled to any trust funds held in the broker's escrow account and failure to institute one of the settlement procedures as set forth in Section 475.25(1)(d)1., F.S. within 15 business days after the date the notification was received by the Division.
Findings Of Fact Petitioner is the state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.165, F.S., Chapters 120, 455, and 475, F.S. and the rules promulgated pursuant thereto. The Respondent Norman Rivers, Jr. is and was at all times material hereto a licensed real estate broker, issued license number 0189212 in the accordance with Chapter 475, F.S. The last license issued was as a broker c/o Route 1, Box 344, Alachua, Florida 32615. Respondent Norman Rivers Jr., Realty, Inc. is and was at all times material hereto a corporation registered as a Florida real estate broker having been issued license number 0214407 in accordance with Chapter 475, F.S. The last license issued was at the address of Route 1, Box 344, Alachua, Florida 32615. At all times material hereto, Respondent Norman Rivers, Jr. was licensed and operating as qualifying broker and officer of Respondent Norman Rivers Jr., Realty, Inc. On December 5, 1994, Respondent showed Charles E. and Elizabeth A. Smith (husband and wife) a tract of land located in Dixie County, Florida. Afterward, Respondent Norman Rivers, Jr. sent a $57,500 offer to Charles E. Smith for his signature. On December 7, 1994, Mr. Smith signed the offer and forwarded it with a $2,875 deposit to the Respondents. The next day, the Seller, Ed Dix, accepted the Smiths' offer. The contract provided that if the deal did not close on December 23, 1994, "...if the said Buyer fails to perform the covenants herein contained within the time specified, therefore said deposit made by the Buyer may be forfeited at the option of the Seller, as liquidated damages, upon 10 days' notice to the Buyer, and one half thereof shall be retained by or paid to said Realtor and the remainder to the Seller, unless because of expense incurred the latter shall agree or had agreed in writing to a greater percentage being paid to the Realtor,..." The property sale did not close on December 23, 1994. At some point in time, Mr. Smith conversed with Respondent Rivers by telephone and told him he could not afford to purchase the property since a greater amount would have to be financed and because his wife could not be persuaded to go through with the deal. He told Mr. Rivers that he would like Mr. Rivers to return any amount remaining in excess of Mr. River's expenses but that Mr. Rivers could retain his expenses. Mr. Rivers told Mr. Smith that his expenses had used up the entire $2,875 binder. Mr. Smith accepted this representation. He testified that he "considered the issue closed" at that point. Neither Mr. or Mrs. Smith made subsequent demands for all or part of the binder. The administrative complaint herein was urged quite some time later by Mrs. Smith. The Respondents affirmatively demonstrated that Mr. Rivers' business practice from 1991 to 1995 and continuing to date, is to promptly refund deposits upon a Buyer's request, if the Seller agrees. The significance of this evidence is that if a clear demand for refund or audit had been made by Mr. Smith, Respondents probably would have made some accounting and refund. In this case, Mr. Rivers did not do so because he did not consider that he had a clear- cut request to refund a deposit. Despite Mr. Smith's testimony that his final telephone conversation with Mr. Rivers as related above in Finding of Fact 11, occurred before Christmas 1994 and Mrs. Smith's deposition testimony that Mr. Smith's and Mr. River's phone conversation occurred on December 21, 1994, before the agreed closing date all other documentary evidence and credible testimony points to the conversation occurring in mid-January 1995. The parties stipulated that on 12/21/94, Alachua County Abstract Company sent the closing package by UPS overnight delivery to Mr. and Mrs. Smith. This package was received by Mr. and Mrs. Smith on 12/22/94. The significance thereof is that Mrs. Smith testified that the telephone call made by her husband in her presence from their home to Mr. Rivers cancelling the contract and demanding the return of their deposit occurred the night before the day they received the closing package, or December 21, 1996. However, the Smiths' long distance telephone records from 12/7/94 to 1/31/95 reveal that no long distance call was made from the Smith home to Mr. Rivers on 12/21/94 or any date other than 12/7/94, the day Mr. Smith initially signed and faxed the contract to Mr. Rivers. It is noted that at one point Mr. Smith wobbled and testified that Mr. Rivers telephoned him for the final phone conversation at some time prior to Christmas 1994. This is contrary to Mrs. Smith's testimony and Respondents' telephone records do not show that Mr. Rivers telephoned the Smith home on December 21, 1994, either. Between 12/30/94 and 01/17/95, Respondents' long distance telephone bills show charges for 15 calls to Mr. Smith's several work phone numbers and the home phone number. In Mr. Rivers' words, "I chased him like a hound," to find out what was going on, including when the deal could close. This demonstrates Mr. Rivers' continued belief after December 21, 1994 that the contract was still going to close and contradicts Mrs. Smith's testimony that Mr. Smith had orally cancelled the contract and demanded the return of his deposit on December 21, 1994. It further contradicts Mr. Smith's testimony this conversation occurred sometime before Christmas, 1994. The agency stipulated that Seller Dix and Norman Rivers, Jr. entered into an agreement whereby any binder forfeiture resulting from the Smiths' failure to close on December 23, 1994 would be used by Norman Rivers, Jr. and Norman Rivers, Jr. Realty, Inc. to cover their expenses incurred in marketing Mr. Dix's property. Respondents established that prior to the contract signing on December 7, 1994, they had expended at least $3,339.00 in advertising in order to market and sell Mr. Dix's property. There is no evidence Mr. Smith ever objected to paying the advertising costs incurred by Respondents or even inquired what Mr. Rivers' expenses were. Mr. Rivers did not remove any amount related to Mr. and Mrs. Smith from his escrow account before January 16, 1995. Then he did so by three checks made out to Norman Rivers Jr. Realty, Inc. Mr. Smith and Mr. Rivers concur that Mr. Smith made no specific demand for an audit of Respondents' expenses. Real Estate Commission Investigator Russell Lambert audited Respondents' accounts. He testified he "found no violations."
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the administrative complaint herein. RECOMMENDED this 2nd day of December, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1996. COPIES FURNISHED: Steve W. Johnson, Esquire Department of Business & Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772 James F. Gray, Esquire Post Office Box 7100 Gainesville, Florida 32605 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether respondent's license as a real estate salesman should be revoked or otherwise disciplined on the ground that she is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, culpable negligence, and breach of trust in a business transaction in violation of Section 475.25(1) (b), Florida Statutes (1979).
Findings Of Fact At all times material to the charges, respondent Margaret Perry was a licensed Florida real estate salesman holding license No. 0147966. Her business address is Key Place Realty, 513 West Vine Street, Kissimmee, Florida. (Stipulation of Parties.) I. The Offer On December 12 and 13, 1980, Perry W. Ripple, Jr., and Carol C. Ripple, his wife, signed a contract to purchase a 5-acre tract, with residence, located on Hickory Tree Road, Osceola County, Florida. The contract was prepared by respondent, who had previously shown the property to the Ripples. (Testimony of Perry, P. Ripple, C. Ripple; Joint Exhibit No. 1.) On Saturday, December 13, 1980, the contract constituted only a written offer to purchase the property since Novie P. Cleveland and Pamela A. Cleveland- -the owners of the property--had not yet accepted the offer by signing the contract. Pursuant to the contract, the offer was accompanied by a $1,000 earnest money deposit and an assignment of a certificate of deposit. (Testimony of P. Ripple, Perry.) On Saturday, December 13, 1980, when respondent received the signed offer, with earnest money deposit and certificate of deposit assignment, she mailed a copy to the American Title Insurance Company and ordered title insurance. Before mailing the contract offer to the title insurance company, she typed two dates above the contract signature lines: "December 13, 1980" as the date it was signed by the buyers; 3/ and "December 15, 1980" as the date it would be signed by the sellers (the sellers had not yet signed the contract; she inserted December 15, 1980, in anticipation of their signing on that date). She used December 15, 1980, because, under the terms of the contract, that was the last day the offer could be accepted by the sellers. (Testimony of Perry, Carlyon; P-1.) II. The Acceptance At approximately 6:00 p.m. on Sunday, December 14, 1980, respondent telephoned the sellers, Novie P. and Pamela A. Cleveland, and arranged for them to meet her at Mr. Cleveland's office and accept the offer by signing the contract. Respondent expedited the signing of the contract because the Ripples were in a hurry to close the transaction. (Testimony of N. Cleveland, P. Cleveland, Perry.) A few minutes later, the Clevelands met respondent at the designated place and signed the contract. Although they signed the contract on December 14, 1980, respondent inadvertently failed to correct the December 15, 1980, date which she had earlier placed in the contract as the date of execution by the sellers. (Testimony of Perry, N. Cleveland, P. Cleveland; Joint Exhibit No. 1.) III. Buyers' Attempt to Withdraw Offer Later on that evening--between 8:00 p.m. and 9:00 p.m. on December 14, 1980--Mr. Ripple telephoned respondent at her home. He questioned her about the boundaries and size of the property and, for reasons not material here, told her that he no longer wanted to buy the property, that he wanted the earnest money deposit returned. The conversation was abrupt and heated; both parties became upset with each other. The subject of whether the contract had been accepted and signed by the sellers was not mentioned. (Testimony of Perry, C. Ripple, P. Ripple.) The critical dispute in this case is the time of Mr. Ripple's telephone call to respondent. The Ripples testified it was between 5 p.m. and 6 p.m.; respondent testified it was between 8 p.m. and 9 p.m. If the Ripples' testimony is accepted, then respondent presented an offer to the sellers for acceptance after the buyers had told her they wanted to withdraw the offer and not proceed with the contract; this is the essence of respondent's alleged misconduct. If respondent's testimony is accepted, the buyers did not notify her that they wanted to withdraw their offer until after the offer was accepted by the sellers; under such circumstances, her conduct was clearly proper. Respondent's testimony on the timing of the Ripples' telephone call is accepted as persuasive; (see paragraph 7 above) the Ripples' testimony concerning the time of the call is rejected. In earlier testimony, Mr. Ripple's memory of the events in question was shown to be unreliable: [Respondent's Counsel] Q: You say you signed the contract on December the 13th, on a Saturday. [Mr. Ripple] A: Yes. Q: Isn't it true that you signed the contract at the Sun Bank in St. Cloud on Friday, December 12th, on the hood of your car or Marge's car? That's possible, yes. Q: So you were mistaken when you said you signed it on Saturday. A: Yes, I was. I probably was. (Tr. 23.) More importantly, if the Ripples' testimony is correct, respondent deliberately presented an offer for acceptance which the purchasers no longer wished to make. Assuming such conduct occurred, it is inconceivable that she would inadvertently fail to correct the date on the contract to indicate that the sellers signed on December 14, 1980 (the same day the Ripples attempted to withdraw), not December 15, 1980. The events occurred close together and timing was critical. By not changing the date, she allowed the contract to incorrectly reflect that the sellers signed the contract a day later than they actually did: the time between the buyers' attempt to withdraw and the sellers' acceptance becomes greater than it was and even more difficult for her to explain. In short, her failure to correct the date of the sellers' signing of the contract is not a mistake she would have made if, as the Department alleges, she knowingly presented an offer and completed a contract against the expressed wishes of the buyers. IV. No Damage to Parties Involved On Monday, December 15, 1980, the Ripples stopped payment on their earnest money deposit check. The sellers did not pursue any legal rights or remedies they may have had against the Ripples. Eventually, the property in question was sold to another party. There is no evidence that the Ripples or Clevelands were financially harmed as a result of the events in question. (Testimony of Perry, C. Ripple, P. Ripple, N. Cleveland.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department's administrative complaint dated October 20, 1981, be dismissed. DONE AND RECOMMENDED this 26th day of March, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 26th day of March, 1982.
Findings Of Fact Respondent (all references to Respondent are to Respondent Simmonds) is a licensed real estate broker in the State of Florida holding license numbers 0404486 and 0245930. His most current licenses are as a broker, c/o the corporate Respondent. He has been licensed about six years in Florida. The corporate Respondent (all references to the corporate Respondent are to Respondent L. G. Simmonds Realty, Inc.) is a corporation registered as a real estate broker in the State of Florida holding license number 0245825. At all material times, Respondent was licensed and operating as a qualifying broker and officer of the corporate Respondent. He is the sole shareholder of the corporate Respondent and the only broker employed by the corporate Respondent. Respondents were brokers in three sales transactions in which they received competing claims for earnest money deposits that they held in trust. The three contracts are the sale from Durant to Durant by contract dated February 13, 1987, and amended December 7, 1987; the sale from Dyer to James by contract dated August 27, 1988; and the sale from Kollar and Nilands Bar & Package, Inc. to Hamilton by contract dated October 11, 1988. Each of the three contracts is on a standard printed form. Each contract requires the corporate Respondent to hold the earnest money deposit in escrow and disburse it at closing, at which time the corporate Respondent earns its commission. Each contract provides that the corporate Respondent may interplead the funds in circuit court in the event of a dispute and further provides that the corporate Respondent shall comply with Chapter 475, Florida Statutes. The Durant contract provides for the corporate Respondent to hold a $1000 earnest money deposit. A dispute between the parties to the Durant contract arose, and Respondent contacted the Florida Real Estate Commission for advice. By letter dated November 22, 1988, Respondent informed the Florida Real Estate Commission of a demand by the seller for the deposit because the buyer had failed to follow through on his mortgage application. The letter states that Respondent is convinced that the seller is entitled to the deposit and that Respondent intends to pursue interpleader. By Notice dated February 2, 1989, the Florida Real Estate Commission informed Respondents that it could not issue an Escrow Disbursement Order because of the unenforceability of certain contractual language. Referring to Rule 21V-10.32, the letter advised Respondents that, within 30 days of receipt of the letter, they must pursue arbitration, with the consent of all parties, or a judicial adjudication, such as through interpleader. At some point, Respondents obtained an application for arbitration and sent it to the parties. By letter dated June 12, 1989, Respondents informed the Florida Real Estate Commission that they had sent an arbitration contract on March 21, 1989, to the seller, who had not yet responded to the request to arbitrate. Subsequently, Respondents retained counsel at their expense to discuss interpleading the funds in circuit court. Counsel advised them that the relatively modest sum involved, as a practical matter, precluded the judicial remedy because the attorneys' fees would exceed the amount in dispute. Eventually, the parties to the Durant contract settled their dispute, and Respondents disbursed the funds pursuant to the parties' stipulation. There is no evidence of a complaint about Respondents' handling of the earnest money deposits, nor is there any evidence that Respondent failed to account or deliver the deposit to any person as required by law. The Dyer contract also involved an earnest money deposit of $1000, which was later increased by addendum to a total of $3000. The Dyer contract, which also failed to close, provides for the corporate Respondent to hold the earnest money deposit. By letter dated March 2, 1989, Respondents informed the Florida Real Estate Commission that, as of the same day, they had received conflicting demands for the earnest money deposit. By Notice dated August 28, 1989, the Florida Real Estate Commission informed Respondents that it could not issue an Escrow Disbursement Order because of factual disputes that the Commission is not empowered to resolve. The Notice states that Respondents must "immediately" choose one of the remaining alternatives--arbitration or interpleader in circuit court. By letter dated September 8, 1989, Respondents informed the Florida Real Estate Commission that they would seek help through the Arbitration Society of Florida, Inc. It is unclear whether Respondents sent an arbitration application to the parties in the Dyer contract, but no arbitration ensued. The parties to the Dyer contract resolved their dispute in March, 1990, and Respondents disbursed the funds pursuant to the parties' stipulation. There is no evidence of a complaint about Respondents' handling of the earnest money deposits, nor is there any evidence that Respondents failed to account or deliver the deposit to any person as required by law. The Kollar contract resulted in the receipt by the corporate Respondent of an earnest money deposit of $10,000. This contract also failed to close. By letter dated January 19, 1989, Respondents informed the Florida Real Estate Commission of conflicting demands received the same day. The Commission issued an Escrow Disbursement Order on August 16, 1989, with which Respondents promptly complied. There is no evidence of a complaint about Respondents' handling of the earnest money deposit, nor is there any evidence that Respondents failed to account or deliver the deposit to any person as required by law. On January 30, 1990, Petitioner's investigator visited Respondents' office pursuant to a complaint that never provided any basis for disciplinary action. Respondent said that he was ill and asked her to reschedule the visit. They agreed to reset it for February 6, 1990. On February 6, 1990, Petitioner's investigator met Respondent at his office and asked for copies of all pending contracts, bank statements, deposit slips, cancelled checks, and similar materials so that she could reconcile the trust account. Respondent supplied her with all of these materials except for the cancelled checks, which he said were at the accountant's office. Respondent gave the investigator access to his office copier so that she could copy whatever she needed. She apparently copied various documents, but failed to copy the pending contracts. From February, 1988, through February, 1990, Respondents held 6-10 earnest money deposits. On February 6, Respondents had only three pending contracts for which they held deposits. These were the Dyer contract and two unidentified contracts with $3500 and $500 earnest money deposits. Respondents did not handle other trust funds, such as property management funds. Petitioner's investigator determined that the trust account was short $2897.73. She found pending contracts indicating that Respondents should be holding a total of $7000 in earnest money deposits, but she found a bank balance of only $4102.27, which included a deposit of $1392.26 made on February 5. Respondents' trust account has been short previously. For example, in August, 1989, the Dyer, Durant, and Kollar contracts, which were still outstanding, generated a trust account liability of $14,000, but the account balance was as low as $700. Respondent admits that he improperly removed funds from the trust account, without the parties' knowledge, to apply toward personal medical expenses that he had incurred. In the fall of 1989, he deposited into the trust account proceeds from a loan he had recently received. However, he removed additional trust funds when he later incurred more medical expenses. By February 6, Respondent knew that the trust account was short, but evidently did not know precisely by how much. His repeated vagueness concerning the specifics of trust account withdrawals and deposits from August, 1989, through February, 1990, discredits his testimony that he never withdrew more than the amounts of pending commissions, which were unearned in any event when withdrawn by Respondent. On February 7, Respondent deposited $2897.73 into the trust account to eliminate the deficiency found by Petitioner's investigator. During the following week, the investigator returned to Respondents' office. She requested Respondent to produce the same documents that she had examined previously, but Respondent refused on the grounds that he had already produced all the documents once and he was seeking legal counsel. The investigator contacted Respondent a couple more times concerning the requested documents, but Respondent continued to refuse to cooperate. Petitioner next tried to compel the production of the requested documents by service of an administrative subpoena. By subpoena duces tecum issued February 19, 1990, and served February 21, 1990, Petitioner demanded that Respondents produce, on February 26, 1990: All current pending sales contracts, on L. G. Simmonds Realty Escrow Account #144100004792 all bank deposit slips from 2/1/88-2/1/90, the check book for account #14410004792. Upon receipt of the subpoena, Respondent contacted his attorney, who prepared a petition to invalidate subpoena, which was served by mail on February 25, 1990, and received by Petitioner on February 28, 1990. The basic objections are that the subpoena is "unreasonably broad in scope and/or requires the production of irrelevant material" and that Respondents are entitled to know what complaint is being investigated prior to producing the information. Petitioner issued another administrative subpoena on March 12, 1990, which was served upon Respondents on March 26, 1990, and requested, by March 30, 1990: On L. G. Simmonds Realty Escrow Account #14410004792: All sales contracts for which L. G. Simmonds Realty, Inc. is holding escrow deposits, the 1/90 and 2/90 bank statements, cancelled checks, number 177 through 270. On March 29, 1990, Respondents' attorney served the same objections to the petition, and Petitioner received the objections on April 4, 1990.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order reprimanding Respondents; imposing on each Respondent an administrative fine of $3000 (for a total from the two Respondents of $6000); requiring Respondent to complete an approved 60-hour course; suspending the licenses of both Respondents for a period of six months, commencing retroactive to when their licenses were revoked pursuant to the emergency order; placing both licenses on probation for a period of three years commencing the conclusion of the suspension; and requiring, during the period of suspension, that Respondents provide the Florida Real Estate Commission, or its signated representative, with escrow account status reports at such intervals as the Commission shall require. DONE and ORDERED this 9th day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 9th day of October, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4438 Treatment Accorded Proposed Findings of Petitioner 1-7: adopted. 8: rejected as subordinate. 9-10 (first sentence): adopted. 10 (second and third sentences): rejected as unsupported by the greater weight of the evidence. In fact, Respondent supplied the investigator with copies of the contracts on February 6, but refused subsequent requests to produce them. He indicated that he wanted to obtain advice of counsel. 11: rejected as subordinate. In addition, the implication that files of the Division of Real Estate were the sole source of information regarding the contracts is rejected as unsupported by the greater weight of the evidence. The investigator found in the EDO files of the Division of Real Estate a copy of the Dyer contract, which, as noted in the recommended order, was one of the three contracts generating the escrow account liability that the investigator calculated on February 6. Although she saw the other two contracts (in order to generate the liability), she never received copies of them, even through the final hearing. 12-19: adopted or adopted in substance. 20-21 (with respect to each paragraph, first sentence and first clause of second sentence): adopted. 20-21 (with respect to each paragraph, remainder): rejected as irrelevant. 22: adopted. 23: rejected as irrelevant. 24-27 and 30-33: adopted. 28 and 34: rejected as unsupported by the greater weight of the evidence and unnecessary. 29: rejected as unsupported by the greater weight of the evidence. Treatment Accorded Proposed Findings of Respondents 1-12: adopted or adopted in substance. 13: rejected as subordinate. 14-15: adopted. 16 and 19: rejected as unsupported by the greater weight of the evidence and legal argument. 17: rejected as unsupported by the greater weight of the evidence. 18: adopted. 20: rejected as irrelevant. 21: rejected as subordinate. 22: adopted. 23-24 and 26-27: rejected as recitation of testimony. 25: rejected as unsupported by the greater weight of the evidence. 28-33 (first clause of second sentence): adopted. 33 (second clause of second sentence): rejected as unsupported by the greater weight of the evidence and legal argument. 33 (remainder): adopted. 34-35: except as to the fact of the issuance of the subpoena and petition to invalidate, rejected as unnecessary. 36: rejected as unclear. Respondent gave the investigator a chance to see the three pending contracts generating the February 6 trust account liability, but never gave her copies of any of them when she later discovered that she had failed to copy them. She found a copy of the Dyer contract in the EDO file, but she never received copies of the other two contracts, even at the final hearing. The last sentence is rejected as unnecessary. The determination in the recommended order on this point was not dependent upon Respondents' handling of the subpoenas, but on their handling of repeated and reasonable requests for relevant information. 37: rejected as irrelevant. 38: adopted. 39: rejected as unnecessary. 40-43: adopted or adopted in substance. 44: adopted. 45: rejected as unnecessary. 46-49: adopted or adopted in substance. COPIES FURNISHED: Attorney Thomas V. Infantino Infantino and Berman Post Office Drawer 30 Winter Park, Florida 32790-0030 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Attorney James H. Gillis Division of Real Estate Florida Real Estate Commission 400 W. Robinson St. Orlando, Florida 32801-1772 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 *Previously assigned DOAH Case No. 90-4319 closed as a duplicate.
The Issue The issues are whether Respondents committed fraud, in violation of Section 475.25(1)(b), Florida Statutes; failed to prepare monthly trust account reconciliations, in violation of Rule 61J2-14.012(2) and (3), Florida Administrative Code; failed to account for or deliver funds, in violation of Section 475.25(1)(d)1, Florida Statutes; and failed to preserve books and accounts, in violation of Rule 61J2-14.012(1), Florida Administrative Code.
Findings Of Fact At all material times, Respondent Maria L. Nuevo (Respondent) was a licensed real estate broker, holding license number 3006548. Respondent was first licensed, as a real estate salesperson, in Florida in 1984 and became a broker in 1986. Respondent is president of, and qualifying broker for, Respondent Realco Realty, Inc. (Realco Realty), which is a corporation registered as a real estate broker, holding license number 1011738. In late August or early September 2000, Respondent prepared a Residential Sales and Purchase Contract (Contract) on behalf of Omar Canizares, as buyer, to purchase a residence at 10620 Southwest 139th Street in Miami (Property). The Contract provided for a purchase price of $260,000 and a deposit of $1000 to be held by Realco Realty. Respondent presented the Contract to Zoila de Castro, a real estate broker who was representing Antonio and Lorraine Lambo, and Mrs. Lambo. The record is poorly developed on these points, but it appears that Mr. and Mrs. Lambo jointly owned the Property and that both of them never signed the Contract. Respondent left the Contract with Mrs. Lambo because Mr. Lambo was out of town. A few days later, Ms. de Castro returned the Contract to Respondent, intending to convey a counteroffer that raised the purchase price to $265,000 and the deposit to $5000--to be paid within three days after the inspection. However, the Contract delivered by Ms. de Castro to Respondent is notable for two omissions--a signature of one of the Lambos and a deadline for Canizares' acceptance of the counteroffer. Ms. de Castro's testimony that she delivered to Respondent the only original contract with signatures of both Lambos is discredited for two reasons. First, Respondent would likely use the better version of the Contract--i.e., the one with both sellers' signatures--when providing a copy to the appraiser. Second, Ms. de Castro appears to have maintained, at best, an imperfect grasp of all that was transpiring in this attempted transaction and may be claiming to have delivered a fully signed contract--though still without a deadline for Mr. Canizares' acceptance--in order to place herself in a better light. At this point in the transaction, the lack of an enforceable agreement between Mr. Canizares and the Lambos should have been obvious to the Lambos' real estate broker, but it was not. The testimony depicts a series of unanswered letters and unsatisfied demands, as the Lambos initially tried to get the deal to close and eventually tried only to get the deposits, which they believed now totalled $5000. In fact, neither Respondent held any deposit. Although relieved from the obligation to collect another $4000 in deposit, due to the failure of the parties to come to an agreement, Respondents had misrepresented to the Lambos and Ms. de Castro that they held the initial $1000 deposit. Although Petitioner has failed to prove other fraudulent acts by either Respondent toward the Lambos or Ms. de Castro, Petitioner has proved another fraudulent act by Respondents in connection with this transaction. Exploiting Ms. de Castro's lack of diligence, Respondents appear to have shopped the Contract. On September 22, 2000, Respondent ordered an appraisal on a form showing the purchase price as $325,880. At the request of the appraiser, Respondent sent to the appraisal a copy of an altered Contract, which provided for a purchase price of $310,100 and reflected total deposits of $5000. The Lambos-Canizares sale never closed, and the Lambos never received any money representing the deposit that they claimed to be owed. Respondents opened an escrow account in September 2000, but had never performed written monthly escrow reconciliation for their trust account through the date of the audit in February 2001. Additionally, at the time of the audit, Respondents were unable to produce any documentation pertaining to their real estate practice. However, Respondents later produced banking records and reconciliations for January and February 2001, which were undoubtedly prepared after the February 2001 audit.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order revoking the real estate broker licenses of Maria L. Nuevo and Realco Realty, Inc. DONE AND ENTERED this 29th day of May, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 29th day of May, 2003. COPIES FURNISHED: Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802, North Orlando, Florida 32801 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Christopher J. DeCosta Senior Attorney Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite N-809 Orlando, Florida 32801 Michael H. Wolf Michael H. Wolf & Associates, LLC. 3832 North University Drive Sunrise, Florida 33322
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 Respondent Santaniello holds real estate broker license number 0186475, and was so licensed at all times relevant to this proceeding. Santaniello is the active broker for Respondent, Sunair Realty Corporation, which holds license number 0213030. Mr. Don M. and Mrs. Agnes C. Long own two lots in Port Charlotte which they purchased as investments. By letter dated June 8, 1981, Respondents forwarded a "Deposit Receipt and Contract for Sale and Purchase" on each of these lots to the Longs. The documents established that Anni Czapliski was the buyer at a purchase price of $1200 per lot. Respondent Sunair Realty Corporation was to receive the greater of $120 or ten percent of the felling price for "professional services." The letter and documents were signed by Respondent Santaniello. Anni Czapliski was Bernard Santaniello's mother-in-law at the time of the proposed sale. This relationship was not disclosed by Respondents and was not known to the Longs at the time they were invited to contract with Respondents for sale of the lots. The Longs rejected the proposed arrangement for reasons not-relevant here.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty of violating Subsection 475.25(1)(b), Florida Statutes (1979), and fining each $500. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert J. Norton, Esquire Suite 408 First National Bank Building Punta Gorda, Florida 33950 Mr. C.B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 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 16th day of April.
The Issue Is Respondent, Peter H. Myers, guilty of the allegations contained in the Administrative Complaint issued by Petitioner and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Respondent Myers is a licensed real estate broker, having been issued license number BK-0646846. Ocean Village Sales & Rentals, Inc. (Ocean Village) is a real estate broker corporation and Respondent is the qualifying broker for said corporation. Background Petitioner and Respondent were involved in earlier disciplinary cases in 1998 and 1999. On or about December 7, 1999, Petitioner and Respondent entered into a Stipulation which resolved DBPR Case Nos. 98-81236 and 99-80423. The Stipulation placed Respondent on probation for a period of one year from the effective date of the Final Order of the Florida Real Estate Commission (FREC), which adopted the stipulation and was issued on or about January 19, 2000. The Stipulation read in pertinent part as follows: Respondent agrees not to hold or maintain any escrow, trust or real estate related escrow or trust funds for the one(1) year probationary period. Respondent is permitted to be a signatory on the operating and payroll accounts for his brokerage firm only. Respondent shall place all escrow, trust or real estate related funds with a title company, attorney, or other proper depository as permitted under Chapter 475, Fla. Stat., and Fla. Admin. Code r. 61J2. Respondent further agrees not to be a signatory on any escrow, trust or real estate related account with the exception of the operating and payroll accounts for his brokerage firm for the one (1) year probationary period. In compliance with the terms of the stipulation, Respondent placed his escrow account with Joseph Roth, a certified public accountant and licensed real estate broker in the State of Florida. In the Stipulation, Respondent admitted to, among other things, failure to prepare the required written monthly escrow statement reconciliations in violation of Rule 61J2-14.012(2) and (3), Florida Administrative Code, and, therefore, in violation of Section 475.25(1)(e), Florida Statutes. Escrow accounts audit Gail Hand is an Investigation Specialist II with the Department of Business and Professional Regulation (the department). She has approximately 16 years of regulatory and investigative experience with the department. When she started working with the department, she conducted from 20 to 30 trust account audits per month. She routinely conducts audits and inspections of the records of real estate brokers. When reviewing escrow accounts, Ms. Hand's review of escrow accounts has two components. First, she reviews the bank statement reconciliations which compares the statement balance to the checkbook balance. Next she reviews a comparison of the bank statement reconciliations with the broker's total trust liability. The broker's total trust liability is the total of all the money that the broker is holding in his trust or escrow account. On or about January 26, 2001, Ms. Hand conducted an office inspection and escrow account audit of Respondent's business, Ocean Village. Respondent and his daughter were present. During this inspection and audit, Ms. Hand requested to inspect financial documents of the company. Respondent and his daughter provided all documents requested and were very cooperative during the course of the audit. Ms. Hand inspected the November and December 2000 bank reconciliation statements from the escrow trust account of Ocean Village and determined that they were properly prepared. However, Ms. Hand determined that the determination of the broker's trust liability was not properly prepared in that she could not identify the broker's total trust liability from a review of the documents provided by Respondent. The calculations in Respondent's financial records included broker's money, bank fees, and negative owner balances. According to Ms. Hand, the reconciled checkbook to bank statement balance should be compared to a balance that does not include broker's money, bank fees or negative owner balances. Because of this, she could not identify the total broker's trust liability. She normally does not have trouble identifying a broker's total trust liability when conducting an audit. During the audit, Respondent could not identify the total broker's trust liability. Respondent deferred to his accountant, Mr. Roth. Ms. Hand did not discuss the financial documents which she reviewed as part of the audit with Mr. Roth because, "Mr. Myers was responsible." License renewal Respondent's renewal fees for his corporate registration and his individual broker's license became due in March 1999. Respondent renewed his corporate registration in March 1999 but failed to renew his individual broker's license. Respondent did not renew his individual broker's license until February 2001. At that time, he paid for the time period in which he was in arrears and for another 24 months in the future, as well as a late fee or penalty. Respondent continued to conduct real estate transactions during the period of time that his individual broker's license was in involuntary inactive status.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, the evidence of record and the demeanor of the witnesses, it is RECOMMENDED: That a final order be entered by the Florida Real Estate Commission finding the Respondent, Peter H. Myers, guilty of violating Sections 475.25(1)(e) and (o), and 475.42(1)(a), Florida Statutes, and imposing a fine of $2,500.00. DONE AND ENTERED this 4th day of September, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 September, 2002.
Findings Of Fact Respondent met Sibley Dennis Carpenter, Jr. (Carpenter) in 1974 or 1975, in connection with a land sale that is not otherwise relevant to this matter. In the summer of 1975, Carpenter asked respondent for assistance in obtaining financing for another, separate land transaction. On that occasion, Carpenter furnished respondent an unaudited, personal financial statement, prepared by an accounting firm, which put the net worth of Carpenter and his wife at slightly less than a half million dollars. On November 19, 1975, respondent became affiliated with Dennis Carpenter Realty, Inc., as a real estate salesman. Because he had other irons in the fire, he only appeared at the office of Dennis Carpenter Realty, Inc., once every month or two. Not until the spring of the following year, after he had been licensed as a real estate broker, did respondent have access to the company's books. In November of 1975, respondent met one Charles W. Van Cura, a hog farmer from Minnesota who expressed an interest in buying land in Florida, and referred Mr. Van Cura to Carpenter. Carpenter, possibly in the company of respondent, showed Mr. Van Cura certain real property belonging to Harvey H. Westphal and Margaret Westphal. Mr. Van Cura made an offer of one hundred fifteen thousand dollars ($115,000.00) for the property and deposited seven thousand five hundred dollars ($7,500.00) with Carpenter towards the purchase price, as evidenced by a binder receipt and deposit, dated December 31, 1975, and signed by Carpenter. Respondent's exhibit No. 1. Carpenter presented the offer to the Westphals, who refused Mr. Van Cura's offer but made a counteroffer of one hundred thirty-five thousand dollars ($135,000.00), by crossing out Mr. Van Cura's figures, substituting their own and signing their names. Both the offer and the counteroffer were "subject to receiving Federal Land Bank Loan of 70 percent of purchase price . . ." Van Cura told Carpenter he was unwilling to accept the Westphals' counteroffer. Carpenter persuaded respondent to buy the property himself, and, on January 6, 1976, Carpenter, respondent and Van Cura met in respondent's office. After some discussion, respondent drew two checks aggregating seventy- five hundred dollars ($7,500.00) to Van Cura's order. Petitioner's composite exhibit No. 6. Van Cura executed a receipt, respondent's exhibit No. 2, reciting that he had received seventy-five hundred dollars ($7,500.00) from respondent. At the time of this transaction, Carpenter could not have refunded Van Cura's deposit from the escrow account of Dennis Carpenter Realty, Inc., because there were insufficient funds in the account. Unbeknownst to respondent, Carpenter had never deposited Van Cura's money in the escrow account. On January 30, 1976, Carpenter drew up a written offer on behalf of respondent to purchase the Westphal property for one hundred thirty-five thousand dollars ($135,000.00). Petitioner's exhibit No. 1. The binder receipt and deposit recited that respondent "and or assigns" had deposited seventy-five hundred dollars ($7,500.00) with Carpenter in earnest money. Although the Westphals accepted this offer, the transaction never closed, for reasons which were not developed in the evidence. The Westphals never made demand for the seventy-five hundred dollar ($7,500.00) deposit, and respondent never got the money back from Carpenter. Respondent has since decided to "treat it . . . as a loan, or write it off." (R119) At no time did respondent relate to the Westphals the history of the earnest money deposit. In May of 1976, respondent was licensed as a real estate broker, and became secretary-treasurer of Dennis Carpenter Realty, Inc. Respondent and Carpenter agreed between themselves that the corporation should open an escrow account on which each could draw individually. This is reflected by a corporate resolution, dated May 4, 1976. Respondent's exhibit No. 7. Such an account was opened. When the first bank statement revealed to respondent that Carpenter had drawn improper checks against the escrow account, however, a second corporate resolution was drafted, dated July 23, 1976, respondent's exhibit No. 9, which authorized respondent, but not Carpenter, to draw against the escrow account.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 15th day of September, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Bruce I. Kamelhair, Esquire 2699 Lee Road Winter Park, Florida 32789 Mr. W. O. Birchfield, Esquire 3000 Independent Square Jacksonville, Florida 32201
Recommendation It is recommended that the Administrative Complaint as filed against James E. Annen, for purposes of revocation or suspension of his real estate brokers license no. 0001875 be dismissed. DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 J. C. Adderly, Esquire Adderly, Aloia & Dudley Post Office Box 535 Cape Coral, Florida 33904
The Issue Whether the Respondent, Alvin I. Siegel, should be suspended or otherwise disciplined for failure to properly disburse funds or to retain said funds in an escrow account.
Findings Of Fact Respondent Alvin I. Siegel is a registered real estate broker with License #0080637, trading under the registered trade name of Cambridge Realty in South Miami, Florida. An administrative complaint dated February 7, 1979, was filed by the Petitioner Commission, alleged that the Respondent has been guilty of failure to account for or deliver monies which had come into his hands and which were not his own property. Respondent Siegel requested an administrative hearing. On or about February 16, 1973, Sylvia M. Ramirez executed a purchase and sale contract and receipt for deposit for a house located in Dade County, Florida. The house was owned by Deanna P. Cooper. Ms. Ramirez had deposited $1,325.00 as earnest money deposit in the escrow account of broker Respondent Siegel. The contract provided that if the purchaser could not obtain a mortgage, the deposit would be refunded: that if the purchaser breached the contract, the deposit would be forfeited and divided equally by the seller and the broker; and that if the seller defaulted, the brokerage commission would be paid only upon a successful suit for specific performance by the purchaser. Respondent Siegel was notified of the date of closing the same day of the closing, July 20, 1973, but did not attend because of prior commitments. Later that day, the seller, Ms. Cooper, presented a closing statement to the Respondent stating that the transaction had closed and that she wanted the excess of the deposit over the commission owed to broker Siegel. He disbursed to her $235.00, which was the excess of the deposit over and above the commission. Respondent Siegel learned later that the checks issued at the closing were cancelled. Demands were made upon Respondent Siegel by both the seller, Ms. Cooper, and the purchaser, Ms. Ramirez, for the deposit money. The seller, Ms. Cooper, demanded one-half of the deposit as a forfeiture, and the purchaser, Ms. Ramirez, demanded that the money should be refunded to her. No suit for specific performance was instituted. Respondent Siegel refused to pay the seller, Ms. Cooper, the difference between the amount he had disbursed at the time she submitted the closing statement to him and one-half the deposit (i.e. $427.50). A lawsuit was filed by Sylvia Ramirez on December 4, 1973, demanding return of the deposit. The would-be seller, Ms. Cooper, was joined as a party Respondent, so that the rights of all parties could finally be determined. Respondent Siegel was advised by his attorney not to disburse monies to any of the parties, and he followed his attorney's advice. The lawsuit ended in dismissal in January of 1977, and no demand has been made upon Respondent Siegel since that date by either Ms. Cooper or Ms. Ramirez. Respondent Siegel has agreed to rely on the advise of the Petitioner Commission, and has stated that he is ready to disburse the necessary funds but is in doubt as to his duty. Both parties submitted memoranda of law and recommendations. These instruments were considered in the writing of this Order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that this complaint be dismissed without prejudice. DONE AND ORDERED this 29th day of June 1979 in Tallahassee, Florida. COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings ROOM 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Lawrence C. Rice, Esquire 6075 Sunset Drive, Suite 203 Miami, Florida 33143 Mr. Alvin I. Siegel c/o Cambridge Realty 6313 Sunset Drive South Miami, Florida 33143
