Findings Of Fact Petitioner is a state 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 Chapter 475, Florida Statute, and rules promulgated pursuant thereto. Respondent Dean O. Vanderwoude is now a real estate broker and was at all times material hereto a real estate salesman in Florida having been issued license number 0432878 in accordance with Chapter 475, Florida Statutes. On August 15, 1988, Respondent passed an examination to be licensed as a broker and was licensed as a broker on September 1, 1988. At all times material hereto, Respondent was licensed as a salesman and operated under the direction, control, or management of a licensed real estate broker, Anne M. Graffunder, and P.M.M. Properties under a 100 percent commission agreement whereby Respondent rented office space from his broker Graffunder. Respondent was affiliated with Graffunder and P.M.M. Capital, Inc., from approximately November 4, 1986, to October 16, 1987. When Respondent became affiliated with P.M.M., he had been licensed less than one year having first been affiliated with Security Realty Florida from December 20, 1985, to November 4, 1986. Under Graffunder's supervision, Respondent received little assistance in the form of guidance or instructions as to the methods and manner of presenting purchase contracts to sellers, little or no office support in the form of clerical assistance or technical training in the methods of handling escrow funds, no malpractice insurance coverage in the form of errors or omission's policy and no sales/training seminars. On approximately April 6, 1987, Respondent obtained a sales listing from Gary Alan Dahl (Dahl), a real estate investor, concerning real property, the record owner of which was Joe Belcik who had granted to Dahl equitable title to the property by Quit Claim Deed yet unrecorded. (Petitioner's Exhibit 2). The real property located at 2785 Adrian Avenue, Largo, Florida, had been purchased by Belcik from Dahl who had previously purchased the property from the Veteran's Administration. Respondent was aware of the condition of the title to the property listed by him for sale as he reviewed an abstract of the property. On April 6, 1987, prospective purchasers David and Donna A. Kiser (herein purchasers) viewed the real property at 2785 Adrian Avenue, Largo, Florida, and contacted Respondent at a telephone number observed on a "for sale" sign posted on the property. On that date, the purchasers executed a written offer to purchase the property, which offer was prepared by Respondent. (Petitioner's Exhibit 3). In conjunction with the offer to purchase, the purchasers tendered an earnest money deposit to Respondent, by cashier's check number 703917, dated April 10, 1987, in the amount of $100.00 made payable to P.M.M. Properties. The cashier's check was deposited into the escrow account of P.M.M. Capital, Inc., Sun Bank of Tampa Bay account number 265-014-3405 on April 15, 1987. The transaction closed on April 22, 1987. Following the closing, Graffunder issued a check number 140 written on the escrow account of P.M.M. Capital, Inc., Sun Bank/Southeast, account number 265-014-3405, dated April 22, 1987, made payable to Respondent in the amount of $100.00. The check was received by Respondent with Dahl's full permission and consent. Respondent represented to the purchasers that the seller, Dahl, had accepted their offer and desired to close the transaction immediately. Toward that end, Dahl came to Pinellas County from Sarasota County and executed all documentation necessary to effectuate the transfer on or before April 15, 1987. On April 15, 1987, Respondent met with the purchasers and had them sign all closing documents. This included execution of a closing statement and the Kisers requested an extension in order to obtain the $4,900.00 closing proceeds from Mrs. Kiser's father. On April 22, 1987, Mrs. Kiser presented the closing proceeds check and the transaction was finalized. That proceeds check and the $100.00 deposit check were both placed in Graffunder's operating account and pursuant to instructions from Dahl, Respondent received the closing proceeds as agent for Dahl. Dahl and the purchasers completed the closing by executing an Agreement for Deed on April 15, 1987. That agreement provides, in pertinent part, that the purchaser's would pay Dahl the total purchase price of $65,000.00 which included a down payment of $5,000.00 and monthly payments of $557.07 commencing May 1, 1987, and continuing for twenty-nine (29) months at which time the remaining principal balance of $60,073.18 would be payable in the form of a balloon payment. Dahl agreed to carry fire insurance for the full insurable value of the property and the purchasers were to have their names added to the policy as additional insureds. Additionally, both parties agreed that a Memorandum of Interest would be filed in the records of Pinellas County at the time of entering into the Agreement for Deed. Finally, the Agreement for Deed represented that there was a first mortgage in favor of Chrysler First and stated the condition that should the purchasers fail to make payments required of them within thirty (30) days after the same becomes due, the seller may, at his option, declare the contract null and void and all monies paid may be retained as full satisfaction and/or liquidated damages. Respondent did not provide the purchasers a warranty deed until approximately June 27, 1988, when he first became aware that Dahl had not given one to the Kisers. Respondent acknowledges that given the opportunity to reconstruct that transaction, he would have ensured that the seller provided a Warranty Deed to the purchasers as agreed in the Agreement for Deed. Respondent did not follow-up to ensure that a Memorandum of Interest was filed in the public records of Pinellas County as the parties agreed. Within months following the Riser's purchase of the subject property from Dahl, they became disenchanted with the property and ceased making payments under the agreement for Deed causing a large arrearage to accumulate and a subsequent mortgage foreclosure action was initiated.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED: The Petitioner enter a final order finding that an administrative fine of $500.00 be imposed upon Respondent and his license number 0432878 be placed on probation for a period of sixty (60) days with the condition that the fine be payable to Petitioner within thirty (30) days of entry of the final order. RECOMMENDED this 29th day of June, 1989 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 29th day of June, 1989. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Brian E. Johnson, Esquire Brian E. Johnson, P.A. 7190 Seminole Boulevard Seminole, Florida 34642 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Darlene F. Keller, Division Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
The Issue The issue in this case is whether the Respondent, Shirley Bemenderfer, committed the violations alleged in an Administrative Complaint issued by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, on December 31, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the "Department"), is the state agency charged with the duty to prosecute administrative complaints pursuant to Section 20.125, and Chapters 120, 455, and 475, Florida Statutes (2000). At the times material to this proceeding, Shirley K. Bemenderfer is and was a licensed Florida real estate broker. Ms. Bemenderfer's license number is 9995621. For her last issued license, Ms. Bemenderfer was an active broker at 1801 Okeechobee Road, Fort Pierce, Florida 34950. She operated under the trade name of Florida Properties of Fort Pierce. Ms. Bemenderfer has held a real estate license for 30 years. On December 9, 1999, Dawn Luchik, an investigator for the Department, conducted an audit of Ms. Bemenderfer's property management escrow account. The property management escrow account maintained by Ms. Bemenderfer was a single account by which she recorded the receipts and disbursements of all property owners for whom she maintained property (hereinafter collectively referred to as the "Property Owners"). Using information provided by Ms. Bemenderfer, Ms. Luchik compared the "Trust Liability," or the net amount of funds entrusted to Ms. Bemenderfer by the Property Owners, with the net amount of money in the bank account in which Ms Bemenderfer actually deposited the funds. Based upon information initially provided by Ms. Bemenderfer, the Property Owners relevant to this proceeding consisted of individuals identified as Thomas, James C. Kelley, Pulliam, Esquivel, and Samaro. Based upon Ms. Bemenderfer's property management escrow account (hereinafter referred to as the "Escrow Account"), the balances for the Property Owners as of December 9, 1999, were as follows: Thomas $2,565.49 Kelley 97.43 Pulliam 414.52 Esquivel 1,600.00 Samaro (179.86) Total $4,497.58 Information provided by Ms. Bemenderfer indicated that the total balance as of December 9, 1999, for the bank account in which the funds of the Property Owners were maintained (hereinafter referred to as the "Bank Account") totaled $9,650.44. A number of checks which were written and reflected in the Escrow Account had not yet cleared the Bank Account and, therefore, these checks were totaled and added back to the Escrow Account balance as of December 9, 1999. Those checks (hereinafter referred to as the "Outstanding Checks"), according to the information provided by Ms. Bemenderfer, included the following 1/: Payee Check Number Amount Bemenderfer 5213 $125.00 Thomas 52?? 405.00 Paigon 5231 70.00 Samaro 4811 630.36 Samaro 4969 795.77 Samaro 4576 137.46 Total $3,414.86 The amount of the Outstanding Checks, $3,414.86, was added to the Escrow Account total, $4,497.58, to arrive at what the Bank Account total should have reflected: $7,912.44. A comparison of the Bank Account balance of $9,650.44 with the adjusted Escrow Account of $7,912.44, reflected a large discrepancy between the two accounts of $1,738.00. Because the accounts did not balance, Ms. Luchik discussed the matter further with Ms. Bemenderfer to give her an opportunity to explain the cause of the discrepancy. In an effort to explain the discrepancy, Ms. Bemenderfer gave Ms. Luchik additional information concerning the portion of the Escrow Account attributable to Samaro. Based upon the modified information provided by Ms. Bemenderfer to Ms. Luchik, Ms. Bemenderfer's records indicated that the Samaro portion of the Escrow Account had a positive balance of $119.96 rather than the negative balance of ($179.86) initially reported by Ms. Bemenderfer. The modified balance was caused by a number of payments from the account which Ms. Bemenderfer reported had been made prior to December 9, 1999. Additionally, the new information reflected that three checks previously deducted from the Samaro account had been added back because they had never been cashed by Samaro. Those checks (hereinafter referred to as the "Three Samaro Checks") consisted of the following: Payee Check Number Amount Samaro 4811 630.36 Samaro 4969 795.77 Samaro 4576 137.46 Total $1,563.59 Ms. Luchik modified her calculations to reflect the new positive balance in the Samaro portion of Escrow Account, but failed to remove the Three Samaro Checks from the total of the Outstanding Checks reflected in Finding of Fact 7. Using the modified Samaro account balance, Ms. Luchik determined that the total amount of the Escrow Account was $4,797.40. Ms. Luchik them made the following calculation: Escrow Account Balance $4,797.40 Plus Outstanding Checks 3,414.86 Adjusted Escrow Account Balance $8,212.26 Compared to Bank Account Balance 9,650.44 Overage $1,438.18 The overage, or the amount of funds in the Bank Account in excess of the amount recorded in the Escrow Account, was reflected in an Office Inspection & Escrow/Trust Account Audit Form issued by Ms. Luchik on December 9, 1999. Ms. Bemenderfer signed the Office Inspection & Escrow/Trust Account Audit Form. Ms. Bemenderfer was unable to explain why there was an overage. The evidence at hearing proved that Ms. Luchik's calculation of the overage on December 9, 1999, was incorrect. In fact, based upon the information provided to Ms. Luchik by Ms. Bemenderfer during the audit, the overage was actually much higher than determined by Ms. Luchik. The discrepancy was caused by a simple mathematical error in Ms. Luchik's calculations. Ms. Luchik correctly added the Three Samaro Checks back to the Escrow Account to reflect the corrected portion of the account attributable to Samaro but she had already added those same three checks back to the Escrow Account as part of the Outstanding Check balance. Therefore, the amount of the Three Samaro Checks was added to the Escrow Account twice, inflating the balance of the Escrow Account by the amount of the Three Samaro Checks, or $1,563.59. When the Three Samaro Checks are correctly removed from the Outstanding Check amount, the actual overage on December 9, 1999, based upon the information provided by Ms. Bemenderfer was actually much higher than determined by Ms. Luchik: Escrow Account Balance $4,797.40 Plus Outstanding Checks: Amount Used by Ms. Luchik $3,414.86 Reduced by the Three Samaro Checks 1,563.59 1,851.27 Adjusted Escrow Account Balance $6,648.67 Compared to Bank Account Balance 9,650.44 Overage $3,001.77 Based upon the best information available to the Department as of December 9, 1999, Ms. Bemenderfer appeared to have $3,001.77 in her Bank Account in excess of the amount of money she was holding in the Escrow Account for the Property Owners. The evidence failed to prove where the purported excess money came from or who it belonged to. The evidence also failed to prove that the excess amount was in any way caused by Ms. Bemenderfer for any reason other than her simple negligence or incompetence. The December 9, 1999, audit also discovered, based upon records provided by Ms. Bemenderfer, that Ms. Bemenderfer's records of the individual Property Owner's accounts which make up the Escrow Account, often reflected a negative balance. A negative balance indicates that amounts have been expended on behalf of an individual Property Owner in excess of funds received for that individual Property Owner. Ms. Bemenderfer was unable to explain the negative balances. At the request of Ms. Bemenderfer, Ms. Luchik returned to conduct a second audit of her accounts on April 12, 2000. At this time, Ms. Bemenderfer had closed the Bank Account, account number 664413 (hereinafter referred to as the "Original Bank Account"), and opened a new one, account number 1498797 (hereinafter referred to as the "New Bank Account"). As to the Original Bank Account, Ms. Bemenderfer reported that there was no trust fund liability in the Escrow Account. The balance of the Original Bank Account, however, reflected a shortage in the account as of April 11, 2000, of $473.44, apparently reflecting that she had theoretically disbursed $473.44 more than she had received on behalf of the Property Owners. Apparently realizing she had a negative balance in the Original Bank Account, Ms. Bemenderfer deposited $500.00 in the account on the day of the audit, April 12, 2000. Therefore, instead of reflecting a shortage of $473.44 when Ms. Luchik began the audit, the Original Bank Account reflected an overage in the account of $26.56. This amount was reflected by Ms. Luchik in an Office Inspection & Escrow/Trust Account Audit Form completed on April 12, 2000. Ms. Bemenderfer was unable to explain why there was a $473.44 shortage in the Original Bank Account, what the $500.00 deposit she made was attributable to, or why the account ended up with a $26.56 overage. Based upon the best information available to the Department as of April 12, 2000, Ms. Bemenderfer appeared to have $26.56 in the Original Bank Account in excess of the amount of money she had received and disbursed to the Property Owners from the Escrow Account. The evidence also proved that the excess was caused by a deposit of $500.00 made by Ms. Bemenderfer. Finally, the evidence failed to prove that the overage or shortage was in any way caused by Ms. Bemenderfer for any reason other than her simple negligence or incompetence. The April 12, 2000, audit also determined that there was a $124.91 overage in the New Bank Account, which Ms. Bemenderfer was unable to explain. Based upon the best information available to the Department as of April 12, 2000, Ms. Bemenderfer appeared to have $124.91 in her New Bank Account in excess of the amount of money she was holding in the Escrow Account for the Property Owners. The evidence failed to prove where the purported excess money came from or who it belonged to. The evidence also failed to prove that the excess amount was in any way caused by Ms. Bemenderfer for any reason other than her simple negligence or incompetence. Monthly reconciliation statements which Ms. Bemenderfer completed were also reviewed by Ms. Luchik (hereinafter referred to as the "Reconciliations"). There are numerous overages and shortages reflected in the Reconciliations. Ms. Bemenderfer failed to provide an written explanation in the Reconciliations for the overages or shortages and she failed provide a written explanation in the Reconciliations for the correction action that would be taken to eliminate the overages or shortages. In conclusion, Ms. Bemenderfer failed to maintain her Escrow Accounts in a reasonable, understandable fashion as of December 9, 1999, and April 12, 2000. Her accounts simply do not balance. Ms. Bemenderfer's accounts as of December 9, 1999, and April 12, 2000, reflect the negligent and incompetent manner in which the accounts had been maintained. The evidence failed to prove, however, any intentional wrong on her part or that Ms. Bemenderfer benefited in any way from the manner in which the accounts were maintained. On May 19, 1999, the Florida Real Estate Commission adopted a stipulation signed by Ms. Bemenderfer in settlement of an Administrative Complaint issued against her on April 21, 1998. In the April 21, 1998, Administrative Complaint it was alleged an audit conducted in 1997 had revealed an overage of $1,731.36 in Ms. Bemenderfer's bank account, that she had failed to prepare Reconciliations, and that there were shortages in the account of Ron Cason, even though the overall account balance showed an overage. Pursuant to the terms of the stipulation, Ms. Bemenderfer admitted the factual allegations of the Administrative Complaint, agreed that those allegations constituted the violations alleged, and agreed to pay a $1,000.00 fine and costs, serve a one-year probation period, and attend a seven-hour escrow management course.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered finding that Shirley K. Bemenderfer violated Section 475.25(1)(e) and (o), Florida Statutes; requiring that she pay an administrative fine of $500.00; and that she be placed on probation for one year during the first three months of which she shall successfully complete at least a four-hour escrow management course prescribed by the Florida Real Estate Commission. DONE AND ENTERED this 29th day of January, 2003, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 January, 2003.
The Issue The issue for determination at the final hearing was whether the Respondent violated the real estate licensing law, as alleged in the Administrative Complaint, by failing to account and deliver a deposit; failing to maintain a deposit in a real estate brokerage escrow account or some other proper depository until disbursement thereof was properly authorized; and/or being guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, and/or breach of trust in a business transaction.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent is now, and was at all times material hereto, a licensed real estate broker in the State of Florida having been issued license number 0360741. The last license issued was as a broker, c/o Consolidated American Realty Services, Inc., in Tampa, Florida. From June 6, 1983, through June 25, 1984, Respondent was licensed and operating as a real estate broker under the trade name, "Benjamin Realty," in Tampa, Florida. For sometime prior to June 2, 1984, Eileen Cumbie attempted to sell a lot owned by her located at 1102 26th Avenue, Tampa, Florida. On June 2, 1984, the Respondent contacted Ms. Cumbie and informed her that he had a client interested in purchasing the property. Ms. Cumbie informed the Respondent that as long as she netted a certain amount, she would be willing to sell the property. Ms. Cumbie allowed the Respondent to put together a contract for the sale of the lot. In connection therewith, the Respondent prepared a sales contract with Danilo Castellanos, as purchaser, and Eileen W. Cumbie, as seller, for the purchase and sale of the property. Pursuant to the purchase and sales agreement, the Respondent received in trust from Mr. Castellanos a $500 earnest money deposit via check dated June 2, 1984. On June 5, 1984, the Respondent deposited the check into his real estate brokerage account maintained at the Central Bank of Tampa, 2307 W. Rennedy Boulevard, Tampa, Florida. Mr. Castellanos entered into the contract for the benefit of his son and daughter-in-law who resided in New Jersey but were planning to relocate to the Tampa area. Mr. Castellanos' daughter-in-law went to look at the lot on June 10, 1984 and decided that she did not like the area in which it was located. The closing of the transaction was set for June 15, 1984. On approximately June 13, 1984, Mr. Castellanos' daughter- in-law informed the Respondent that they were no longer interested in purchasing the property. Ms. Cumbie was out of town during the time of the scheduled closing, but had prepared and signed all of the paperwork in advance. When she returned after June 15, 1984, she called Respondent to find out how the closing went. The Respondent informed her that the buyers failed to go through with the transaction. The contract provided in part as follows: ". . . If the buyer fails to perform this contract within the time specified herein, time being of the essence of this agreement, the deposit made by the buyer shall be disposed of in the following manner: To the Broker an amount equal to his earned commission, but not to exceed 1/2 of the deposit which shall discharge the sellers obligation to him for that service; remainder to the seller to be credited to him against his damages accrued by reason of the breach of contract. " After the transaction failed to close, Ms. Cumbie requested that Respondent give a portion of the deposit to her. The Respondent told Ms. Cumbie that he would give her the entire deposit because she had paid for the survey and a few other items to facilitate the closing of the transaction. Over the next several months, the Respondent, on several occasions, promised to deliver a check to Ms. Cumbie. However, the Respondent never delivered any such check to Ms. Cumbie. Because the Respondent failed to provide Ms. Cumbie with a share of the earnest money deposit, she initiated a civil action in the County Court of Hillsborough County. On October 15, 1985, Ms. Cumbie was awarded a final judgment in the amount of $250 against Respondent for her share of the forfeited earnest money deposit. As of the date of the final hearing, the Respondent had not satisfied the judgment and Ms. Cumbie had not received any proceeds from the forfeited earnest money deposit. Shortly after the transaction failed to close, the purchasers requested that the Respondent return the earnest money deposit to them. However, the Respondent informed them that they were not entitled to the return of the earnest money deposit. The earnest money deposit was never returned to the purchasers. On July 31, 1984, the balance in Respondent's escrow account was $568.83. However, on September 1, 1984, the balance in the Petitioner's escrow account fell to S18.83. From October 31, 1984 to January 1, 1986, the balance in the Petitioner's escrow account remained $3.83.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that the registration of Fortunato Benjamin- Pabon as a real estate broker be revoked. DONE and ORDERED this 18th day of June, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, 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 18th day of June, 1986. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Fortunato Benjamin-Pabon 2729 N. Ridgewood Avenue, #1 Tampa, Florida 33602 Harold Huff, Executive Director Department of Professional Regulation Division of Real Estate P. O. Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the real estate license of Respondent, Larry L. Morris, should be disciplined for: Advertising property or services in a manner which is fraudulent, false, deceptive, or misleading in form or content in violation of Subsection 475.25(1)(c), Florida Statutes (1998); Failure to prepare required written monthly escrow statement-reconciliations in violation of Rule 61J2-14.012(2) and (3), Florida Administrative Code, and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes (1998); Using a trade name without proper registration in violation of Rule 61J2-10.034, Florida Administrative Code, and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes (1998); and Depositing or intermingling personal funds with funds being held in escrow or trust or on condition in violation of Rule 61J2-14.008(1)(c), Florida Administrative Code, and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes (1998); Whether the real estate license of Respondent, Investment Marketing, Inc., a Florida Corporation, should be disciplined for: Failure to prepare required written monthly escrow statement-reconciliations in violation of Rule 61J2-14.012(2) and (3), Florida Administrative Code, and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes (1998); and Depositing or intermingling personal funds with funds being held in escrow or trust or on condition in violation of Rule 61J2-14.008(1)(c), Florida Administrative Code, and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes (1998).
Findings Of Fact Upon consideration of oral and documentary evidence received at the hearing, the following relevant findings of fact are made: Petitioner, Department of Business and Professional Regulation, Division of Real Estate, is the State of Florida agency which licenses and regulates real estate professionals pursuant to Section 20.165, Florida Statutes (1998), and Chapters 120, 455, and 475, Florida Statutes (1998), and the rules in the Florida Administrative Code promulgated pursuant thereto. Respondent, Larry L. Morris (hereinafter "Morris"), is now, and was at all times material hereto, a licensed real estate broker in the State of Florida holding License No. 0061891. Respondent, Investment Marketing, Inc., a Florida Corporation (hereinafter "Investment Marketing"), is now, and was at all times material hereto, a licensed real estate broker holding License No. 0233721. At all times material hereto, Morris was an officer of Investment Marketing and its qualifying broker. Morris has agreed by stipulation that he is a real estate broker and subject to the jurisdiction of Petitioner during the period of the acts alleged in the Administrative Complaint filed in this case. In 1989, a company that Morris had an interest in, Sunset Harbour Condominium Development Company, purchased 57 condominium units in the 72-unit Sunset Harbour Condominium (hereinafter "Condos"). Subsequent to the initial purchase of 57 units, Sunset Harbour Condominium Development Company acquired 10 additional units which were in foreclosure. Sunset Harbor Condominium Development Company subsequently sold all units it owned in Condos. Morris continues to own one unit in Condos. Respondents managed Condos and were sales and rental agents for Condos pursuant to a verbal agreement with the Sunset Harbour Condominium Association. When Condos was acquired, Morris either personally or through an entity in which he had ownership, acquired a tract of land contiguous to Condos on which Sunset Harbour Villas (hereinafter "Villas") was developed by Morris in 1987-1989. Respondents were rental and sales agents for Villas. Condos had the following amenities which are relevant to this case: a swimming pool, a gazebo, and a 200-foot fishing pier. Villas has the following amenities which are relevant to this case: a swimming pool and a clubhouse. Morris testified that he hoped to "integrate the amenities between the two condominium properties." According to Morris, "the Board of Directors has the right to do that [a cross-use of amenities] on a year-to-year basis." Morris had brochures printed in 1997 for Villas which advertised the following amenities: Two swimming pools; Clubhouse; Gazebo; and, a 200-foot pier. Morris testified that when he realized that there would be no integration or cross-use of the amenities of Condos and Villas which made the brochure inaccurate, he redacted, using a "magic marker," the inappropriate amenities from the brochure. In 1997 or 1998, during the construction start-up of Villas, David Woodard obtained an unredacted copy of the brochure at Morris' office. Woodard did not see any redacted brochures. In January 1999, Benjamin Clanton, a Division of Real Estate Investigator, obtained an unredacted copy of the brochure from Morris' office. He also saw redacted brochures in the office. Gene Daughtry, an employee of Investment Marketing, testified that [at some non-specified date] he redacted about 2500 out of 3000 - 4000 brochures and that he never gave a prospective buyer a brochure which had not been redacted. On January 27, 1999, Mr. Clanton performed an audit on Respondents' security account (escrow/trust account). Morris made the requisite information available to him although the escrow liability lists had to be reconstructed. Mr. Clanton discovered that the monthly reconciliations had been done improperly. The trust liability account balance was $3,400.31; the reconciled bank balance was $4,320.31. There was $920.50 in excess funds in the escrow account. On February 10, 1999, Morris wrote Mr. Clanton a letter in which he stated that the excess funds "came from monies that were paid to Investment Marketing for utility bills, etc., that were paid for owners to keep their utilities from being disrupted, and Investment Marketing was never reimbursed. The other overage amounts came from unpaid rental commissions." Morris acknowledged that the monthly escrow reconciliations were not done exactly right and testified that, "I'm guilty." On April 26, 1994, Florida Department of Business and Professional Regulation, Division of Real Estate, filed an Administrative Complaint against Larry L. Morris and Investment Marketing, Inc., which alleged that escrow account irregularities had been discovered during a February 4, 1994, audit (Case Nos. 94-80988, 94-81264). On July 14, 1994, Florida Department of Business and Professional Regulation, Division of Real Estate, and Larry L. Morris and Investment Marketing, Inc., entered into a stipulation which stated inter alia: Respondents neither admit nor deny the allegations contained in the Administrative Complaint, nor that if true, they support a finding of a violation of the Real Estate License Law. Respondents shall not in the future violate Chapters [sic] 455, Florida Statutes, or the Real Estate License Law, or Rules promulgated pursuant thereto. Respondent Larry L. Morris shall be fined $3,000. The fine shall be made payable to the Department of Business and Professional Regulation, Division of Real Estate, within thirty (30) days from the date of filing of the Final Order, or the Respondent's licenses, registrations, certificates, and permits shall be suspended until such fine is paid. This suspension period shall not exceed ten years. Respondent Larry L. Morris shall provide original evidence of having satisfactorily completed a 30- hour broker management post-licensure education course within one year. These education hours are in addition to the hours required to maintain your real estate license. Should these education hours not be completed within the required one-year period all Respondent's licenses, registrations, certificates, and permits shall be suspended until satisfactory evidence that such education hours are successfully completed and that the original grade report from the real estate school has been received by the Florida Division of Real Estate. Respondents Larry L. Morris and Investment Marketing, Inc., shall be reprimanded. * * * The action reflected in the Final Order shall be published in the FREC News and Report as follows: Destin: Larry L. Morris; broker: Reprimanded; fined $3,000; 30 hr. bk. mgmt. course within 1 yr.: Investment Marketing, Inc.: Reprimanded: failed to maintain sufficient funds in escrow account; failed to properly prepare the required written monthly escrow statement-reconciliations. On December 3, 1998, the following advertisement appeared in the Pensacola News-Journal classified advertising section: NAVARRE BEACH Waterfront and Waterview Condos for Sale and Lease. Sale prices starting at $68,900. Long and short term rentals also available. Pool, fishing pier, gazebo, and clubhouse Sunset Villas Development Co. 800-939-1887 Morris testified that he believed the name Sunset Villas Development Company was registered with the Florida Real Estate Commission. Morris testified that the errors made in the December 3, 1998, ad were made by the Pensacola News-Journal. The newspaper failed to include "Investment Marketing, Inc.", but included Investment Marketing's broker's phone number. Morris maintains that this ad is for both Villas and Condos. Subsequent to the January 27, 1999, audit, Morris made changes in his bookkeeping procedures. Mr. Clanton conducted a later audit which revealed appropriate escrow account management.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Morris guilty of violating Subsection 475.25(1)(c), Florida Statutes (1998); Rule 61J2-14.012(2) and (3), Florida Administrative Code, and, therefore, Subsection 475.25(1)(e), Florida Statutes (1998); Rule 61J2-14.008(1)(c), Florida Administrative Code (1998); and, therefore, Subsection 475.25(1)(e), Florida Statutes (1998); finding that Morris did not violate Rule 61J2-10.034, Florida Administrative Code, and, therefore, Subsection 475.25(1)(e), Florida Statutes (1998); dismissing Count IV of the Administrative Complaint; finding Investment Marketing guilty of violating Rule 61J2-14.012(2) and (3), Florida Administrative Code, and, therefore, Subsection 475.25(1)(e), Florida Statutes (1998), and Rule 61J2-14.008(1)(c), Florida Administrative Code, and, therefore, Subsection 475.25(1)(e), Florida Statutes (1998); imposing a penalty of $1,000 per count, resulting in $3000.00 for Morris and $2,000.00 for Investment Marketing; suspending Morris' license for one year; and reprimanding Investment Marketing. DONE AND ENTERED this 21st day of February, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2001. COPIES FURNISHED: Nancy P. Campiglia, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Tower, Suite N308 Orlando, Florida 32801-1772 Steven W. Johnson, Esquire 1801 East Colonial Drive, Suite 101 Orlando, Florida 32803-4820 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Roy Ahringer, hereinafter referred to as "Respondent" has held real estate broker-salesman license number 0158288 at all times material hereto. From approximately August 15, 1983 to November 20, 1983, and from approximately March 1, 1984 to April 30, 1984, Respondent was licensed and operated as a real estate salesman in the employ of Highlands Holiday Realty, Inc., a licensed brokerage Corporation. On or about August 11, 1983, Highlands Holiday Realty, Inc., obtained from Mildred M. Haydon, as owner, a six month listing to sell certain property designated as Lot 9, Block 353, Section 26 Lake Placid, at a price of "any reasonable cash offer". By the terms of this listing agreement, the listing would continue beyond the six month period "until this agreement is revoked by a ten day's written notice" delivered by the owner to Highlands Holiday Realty, Inc. There is no evidence that this listing agreement was ever revoked and it remained in effect during the time Respondent was employed at Highlands Holiday Realty, Inc. Respondent was therefore an agent for Mildred M. Haydon. While this listing agreement was in effect, Respondent obtained a sales contract on March 29, 1984, executed by Robert J. and Marjorie P. Mitchell, as purchasers, for the purchase of Mildred M. Haydon's Lot 9 at a total purchase price of $5000. On April 30, 1984, the Mitchells executed two checks totaling $5000 to Highlands Holiday Realty which were to be placed in a trust account for this transaction. The contract was initially prepared omitting the name and address of the seller but was later completed by Respondent by having a secretary at Highlands Holiday Realty Inc. type in the names of Roy Ahringer and May Ahringer as sellers. On March 31, 1984 Respondent and his wife, May Ahringer, executed a contract for sale and purchase of Mildred M. Haydon's Lot 9 for the purchase price of $2220. Mildred M. Haydon executed this contract for sale and purchase on April 4, 1984. Subsequently this transaction closed and Respondent, with his wife, purchased the subject property for $2220 on or about May 23 or 24, 1984. The evidence presented establishes that Respondent did not explain to the Mitchells or to Mildred M. Haydon that he would be purchasing the property for $2220 from Mildred M. Haydon and then reselling the property to the Mitchells for $5000. Mildred M. Hayden was not informed of the Mitchell's offer of $5000 for her lot prior to her sale of the lot to Respondent. It is Respondent's contention that he told the Mitchells he was having a problem with the lot owner and that he might have to buy it from her in order to be able to resell it to the Mitchells. However, no evidence supporting this assertion was presented by Respondent, and in any event there is no evidence that the Mitchells or Mildred M. Haydon knew about the difference in the purchase and resale prices which would have resulted from this transaction. When the circumstances surrounding this transaction became apparent to Ronald N. Weisser, broker and owner of Highlands Holiday Realty, Inc., he stopped the Ahringer-Mitchell transaction, and the $5000 paid by the Mitchells for this lot has been returned to them. Respondent still owns the subject property. Mildred M. Hayden was damaged in an amount of approximately $2780 due to Respondent's failure to present the Mitchells' offer to her. The Mitchells were damaged in an amount equal to the interest they were required to pay on money borrowed for the purchase price during the period when the funds were retained in a non-interest bearing escrow account. The parties were allowed to submit post-hearing proposed findings of fact pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding has been made either directly or indirectly in this Recommended Order except where such proposed findings of fact have been rejected as subordinate, cumulative immaterial or unnecessary.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be issued suspending Respondent's license for a period of two (2) years and imposing an administrative fine in the amount of one thousand dollars ($1000). DONE and ENTERED this 10th day of June, 1985 at Tallahassee Florida. Hearings Hearings DONALD D. CONN, Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 10th day of June, 1985. COPIES FURNISHED: James Gillis, Esquire Post Office Box 1900 Orlando, Florida 32802 Roy Ahringer 232 Harmony Avenue Lake Placid Florida 33852 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Respondents' real estate licenses should be disciplined based upon charges set forth in the Administrative Complaint which allege violations of Sections 475.25(1)(b),(e), and (k), Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints which allege, in particular, violations of Chapters 455 and 475, Florida Statutes, and rules promulgated thereunder. Respondent David Shihada is now and, at all times material hereto, has been licensed as a real estate broker in the State of Florida, having been issued license number 0239798. His most recent broker's license was issued to him at Shihada Real Estate, Inc., 959 S.W. 87th Avenue, Miami, Florida 33174. Respondent Shihada Real Estate, Inc., is now and, at all times material hereto, has been a corporation registered as a real estate broker in the State of Florida, having been issued license number 0239797. The last license issued was at the address of 959 S.W. 87th Avenue, Miami, Florida 33174. At all times material hereto, Respondent David Shihada was licensed and operating as the qualifying broker for Respondent Shihada Real Estate, Inc. From May 3, 1990 to May 10, 1990, Petitioner's investigator, Hector F. Sehwerert, conducted an audit of Respondents' escrow accounts. This audit revealed that Respondents' pending sales escrow account #0103005236-06 had a total current liability of $22,050, with a current bank balance of $20,596.56, thereby reflecting a shortage of $1,453.44. In a sworn affidavit dated May 10, 1990, Respondent David Shihada stated that the shortage was a bank "mistake". On or about May 10, 1990, the Respondents deposited sufficient funds, by check numbered 1931, to cover the $1,453.44 shortage in their escrow account. On or about May 8, 1990, Gabriel Sanchez, Respondents' salesman who is also an officer at Westchester Bank where Respondents maintain their escrow account, signed a sworn affidavit stating that he had just completed an attempted reconciliation of the aforementioned escrow account from May 1989 to May 2, 1990. Sanchez was unable to find any shortage in Respondents' escrow account. He will be doing monthly reconciliations for the Respondents from May 1990 forward. From May 31, 1989 to May 2, 1990, the Respondents failed to complete and sign written monthly reconciliation statements comparing their total trust liability with the reconciled bank balance of all trust accounts as required by the rules of the Florida Real Estate Commission.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued concluding that Respondents' actions as found above constitute a violation of Section 475.25(1)(b), Florida Statutes, and further: Imposing an administrative fine in the total amount of $500; Placing the Respondents' real estate licenses on probation for a period of one year, provided that the Respondents shall not be required to retake any state licensure examination as a result of this proceeding, and provided further that Respondent David Shihada shall provide quarterly escrow account activity reports, including evidence of compliance with Rule 21V-14.012, Florida Administrative Code, as well as evidence of successful completion of the sixty hour post-licensure examination course for brokers in addition to other continuing education required to be completed by licensees in order to maintain their active and current licensure status; Requiring the Respondent David Shihada to appear before the Florida Real Estate Commission at the last meeting of the Commission preceding termination of his period of probation; and Dismissing Counts III through VI of the Administrative Complaint. DONE AND ENTERED this 21st day of November 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November 1990. APPENDIX (DOAH CASE NO. 90-4939) Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. 9-10. Adopted in Finding 9. 11. Adopted in Finding 10. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate P. O. Box 1900 Orlando, FL 32802-1900 John H. Duhig, Esquire 702 City National Bank 25 West Flagler Street Miami, FL 33130-1770 Kenneth E. Easley, Esquire 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller, Director Division of Real Estate P. O. Box 1900 Orlando, FL 32801
