The Issue Is Respondent, Victoria D. Wiedle, guilty of failure to account for and deliver funds, in violation of Section 475.25(1)(d)1, Florida Statutes, 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. At all times material hereto, Respondent Wiedle was a licensed real estate broker, having been issued license number BK-0646846, and was principal broker of Escarosa Realty. Respondent's license is still active. Janice Marlene Christian is a realtor associate. She was an independent contractor with Escarosa Realty from December 1998 until April 1999. Accordingly, Respondent Wiedle was Ms. Christian's registered broker during this time. Ms. Beverly Lewis is the mother-in-law of Ms. Christian's brother. Ms. Lewis came to Ms. Christian in February 1999 because she was interested in looking for and purchasing a house. On February 16, 1999, Ms. Christian facilitated an Exclusive Buyer Brokerage Agreement (the Agreement) on behalf of Escarosa Realty with Ms. Lewis. The Agreement was on a form created by Formulator, a software company. "Florida Association of Realtors" appears on the face of the document. Paragraph 6 of the Agreement reads in pertinent part: RETAINER: Upon final execution of this agreement, Buyer will pay to Broker a non- refundable retainer fee of $0 for Broker's services ("Retainer"). Accordingly, Respondent was not entitled to any money as a retainer fee for broker services pursuant to this agreement. The agreement was signed by Ms. Lewis, Ms. Christian, and Ms. Wiedle and became effective on February 16, 1999. The specified termination date of the agreement was August 17, 1999. On or about February 27, 1999, Ms. Christian tendered an offer to sellers on behalf of Ms. Lewis, for property located at 107 Poi Avenue in Santa Rosa County (subject property). Pursuant to this offer, Ms. Lewis gave a $500.00 check dated February 27, 1999, to Ms. Christian as earnest money. The check is made out as follows: "Escarosa Realty Inc. Escrow". Ms. Lewis wrote in the memo section of the check that the check was escrow money for 107 Poi Terrace. The $500.00 check was deposited in Escarosa Realty's escrow account on March 1, 1999. Respondent accounted for the $500.00 check on the March 1999 monthly reconciliation statement for Escarosa Realty. The seller of the subject property made a counter- offer for a higher price which Ms. Lewis rejected. The testimony differs as to what happened next. According to Ms. Christian, Ms. Christian spoke to Respondent sometime after Ms. Lewis rejected the counter-offer about refunding the escrow money to Ms. Lewis. According to Ms. Christian, Respondent informed her that she did not have to give the escrow money back to Ms. Lewis yet because she had the buyer broker agreement. Ms. Christian further asserts that she filled out a written request on March 16, 1999, on a form entitled "EMD Request," which means earnest money deposit request, and gave it to Respondent who again asserted that the $500.00 did not need to be returned at that time because of the buyer brokerage agreement. Ms. Christian's testimony is consistent with Ms. Lewis's. According to Ms. Lewis, she talked to Ms. Christian about getting a refund of the $500.00 shortly after she rejected the counter-offer. She and Ms. Christian discussed the EMD form. She initially agreed that Respondent could temporarily maintain the escrow funds. However, when Ms. Lewis discovered that the financing she was seeking through the rural development program would take several months, she decided she wanted the money returned. Ms. Christian ended her contract with Escarosa Realty effective April 14, 1999. Because Ms. Christian was no longer at Escarosa, Ms. Lewis contacted Respondent by telephone on or about April 21, 1999. Ms. Lewis informed Respondent about the purchase offer and rejection of the counter-offer for the subject property. According to Ms. Lewis, Respondent initially told her she would return the money to her in the mail. When she did not receive it, Ms. Lewis again called Respondent and was told that the $500.00 would not be returned because of the buyer brokerage agreement was still in place. Ms. Lewis asserts that Respondent never told her any request for a refund of the $500.00 had to be in writing. Ms. Lewis then went to the Escarosa Realty office. Ms. Weidle was not there but Elnora Alexander was there. Ms. Alexander was also a realtor associate who was an independent contractor with Escarosa Realty. Ms. Lewis explained to Ms. Alexander about the circumstances of the subject property and that she wanted her earnest money back. Ms. Alexander gave a copy of the buyer broker agreement to Ms. Lewis. After going to Escarosa Realty, Ms. Lewis had numerous other telephone conversations with Respondent about the money. Respondent denies any knowledge of the Poi Terrace failed transaction until she spoke to Ms. Lewis on the phone. She also denied ever receiving the EMD request from Ms. Christian. Respondent asserts that she repeatedly told Ms. Lewis that she would return the $500.00 if Ms. Lewis would only make a request in writing, but that Ms. Lewis refused. This assertion is not credible. It is inconceivable that after all of the efforts made by Ms. Lewis to get her $500.00 returned to her, that she would refuse to make a written request for the money. In any event, there is no dispute that Ms. Lewis made verbal requests to Respondent for the return of the escrow monies. Respondent Wiedle admits that Ms. Lewis requested the money over the telephone. Further, in an April 2, 2001 letter from Respondent to the Division of Real Estate, Respondent acknowledged that Ms. Lewis asked for a refund of the money in the beginning of May and again in early June of 1999. Clearly, if Respondent Wiedle had not previously been aware of the failed Poi Terrace transaction, she was made aware of it during the telephone conversations with Ms. Lewis. Notwithstanding Respondent's assertion that the reason she did not refund the $500.00 to Ms. Lewis was that the request was not in writing, it is clear from Respondent's testimony and from a letter she wrote to Mr. Clanton, Petitioner's investigator, that she believed the $500.00 was connected to the buyer brokerage agreement, not to any offer for purchase of property. In an undated letter from Respondent Wiedle to Mr. Clanton, Respondent wrote: Dear Mr. Clanton, This is in response to your letter dated August 17th, 1999. First Beverly A. Lewis was refunded her money on August 20, 1999 check #111. Second I would like to respond to her complaint. Beverly A. Lewis signed a Exclusive Buyer Brokerage Agreement with EscaRosa Realty, Inc. on February 16th, 1999 with it to terminate on August 17th 1999. Beverly A. Lewis knew that her deposit was a refundable deposit after the agreement is expired not before. As the Broker of this company I had no contact with Beverly Lewis until the agent Marlene Christian was asked to leave the company. If there ever was a contract for her to purchase a house then her agent Marlene Christian never informed me of nor did she ever provide any such contract. The deposit was given to me with the Exclusive Buyer Brokerage Agreement only. Nor did her agent Marlene ever fill out the EMD refund request form requesting a refund to be given to Beverly A. Lewis. However, The result would have been the same. I asked Beverly Lewis If she had changed her mind on purchasing a house she said no she was still going to buy a house but that she knew if she didn't buy her house through Marlene at her new company that Marlene would make life very hard on her. I told her I was sorry but that is the whole purpose in the contract was to secure your buyers from just going all over the place. . . .(emphasis supplied) Respondent refunded the $500.00 to Ms. Lewis on August 10, 1999. At hearing, Respondent volunteered that there was a previous complaint against her for failing to return money she held under a buyer brokerage agreement with a former client. In that instance, the Probable Cause Panel of the Florida Real Estate Commission found no probable cause but issued a letter of guidance to Respondent.1
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, Victoria D. Wiedle, guilty of violating Section 475.25(1)(d), Florida Statutes, in that she failed to deliver escrow money upon demand, imposing a fine of $1,000.00, and placing Respondent Wiedle on probation for a period of two years. As conditions of probation, Respondent should be required to attend a continuing education course which addresses appropriate handling of escrow funds and be subject to periodic inspections and interviews by a Department of Business and Professional Regulation investigator. DONE AND ENTERED this 14th day of June, 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 14th day of June, 2002.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on September 9, 1981 be DISMISSED. Respectfully submitted and entered this 11th day of May, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 11th day of May, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire CONRAD, SCHERER & JAMES 707 Southeast Third Avenue Post Office Box 14723 Ft. Lauderdale, Florida 33302 Philip Jansen, Esquire JANSEN & DE GANCE, P.A. Post Office Box 7375 Ft. Lauderdale, Florida 33304 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the charges, Respondent was a licensed real estate salesman and broker-salesman, license number 0326235. In 1983, Dorothy Nutt and Diane Falstad were the owners of a house located at 608 Hillcrest Street, Orlando, Florida. In December of 1983, Ms. Nutt and Ms. Falstad placed this house for sale with real estate broker Frank Daley. The listing was an exclusive listing except as to the Respondent and another individual, for which no commission would be paid, if a contract submitted by the Respondent was accepted by Nutt and Falstad prior to December 26, 1983. On December 25, 1983, the Respondent, along with his parents, Barbara Okoniewski and Louis Okoniewski, Jr., submitted a written contract to Diane Falstad and Dorothy Nutt for the purchase of the 608 Hillcrest Street property. The contract was accepted by the sellers on December 26, 1983. The contract, as executed by the Respondent and his parents, specified that a $1,000 deposit was to be held in escrow by "Closing Agents." Additionally, Respondent represented to Ms. Falstad that the $1,000 deposit was being maintained in an escrow account. Pursuant to the terms of the contract, Respondent applied for a V.A. mortgage loan, but was later determined to be ineligible. Subsequent thereto, on or about February 8, 1984, application was made with Residential Financial Corporation (RFC), to obtain financing to purchase the 608 Hillcrest Street property. The application was in the name of the Respondent's parents, with Respondent handling the matter on their behalf. Thereafter, the Respondent requested that the loan officer (Charlyne Becker) at RFC not submit the loan application for approval to the underwriters. Pursuant to his request, the application was not submitted for approval. The transaction did not close. Subsequent to the scheduled date of closing both Ms. Falstad and Ms. Nutt made demands of the Respondent for forfeiture of the $1,000 deposit, due to their belief that, he had breached the contract by failing to secure financing. It was not until after the scheduled closing date that the sellers learned the $1,000 was not in escro. To date, Respondent has neither deposited the $1,000 in any trust account nor paid any money to the sellers. Respondent admits through his own testimony, that he did not make the deposit, nor was the deposit placed in any escrow account by his parents. Respondent's testimony, which was not rebutted, established that he and his parents sought to purchase the 608 Hillcrest Street property and that adjacent to it for rental purposes. However, they were advised by the RFC loan officer (Charlyne Becker) that the applications were not likely to be approved by RFC. Respondent did not thereafter pursue any of the loan applications.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order fining Respondent $500. DONE and ENTERED this 12th day of July, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1985. COPIES FURNISHED: James R. Mitchell, Esq. Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Louis S. Okoniewski 730 Lake View Avenue, N.E. Atlanta, Georgia 30308 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, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================ =
Findings Of Fact In early July, 1972, Donald R. and Pamela S. Leininger (buyer) entered into a contract to purchase a residence through Sun Up Realty with its salesman, Bernard Zapel. The real property involved and Sun Up Realty were owned by Defendant, Norman N. Zipkin either as sole proprietor or as sole shareholder of the corporation in whose name the property was held. Disclosure of the role of Defendant as owner-seller was not an issue in these proceedings. Buyer executed two contracts for the purchase of the property both dated July 9, 1972. The first contract acknowledged receipt of $100 as a deposit with a down payment to be made of $1750 with the buyer obtaining a mortgage of $33,250. Noted on this contract are two additional payments of $650 and $1,000. All of these deposits were payable to and deposited in Sun Up Realty's Escrow Account. The second deposit receipt contract was also dated July 9, 1972 and receipt of $1750 was thereon acknowledged by seller. The sale price of $35,000 applied to both contracts. The second contract provided as terms and conditions of sale that the buyer would make an additional deposit of $1700 before closing and that buyer was to apply for, qualify, and obtain a mortgage insured by FHA. Papers to so qualify were sent to the bank but buyer never qualified for the loan. The Administrative Complaint indicates that the first document executed by the buyer provided for an FHA insured mortgage; the evidence presented was as noted above. Apparently to allow buyer additional time to qualify for the loan Defendant leased the premises to buyer pursuant to lease agreement (Exhibit 5). Although Defendant testified buyer paid him nothing while he occupied the house pursuant to this lease agreement, in his deposition (Exhibit 1) buyer presented a receipt for one month's rent paid to the seller for the premises. Buyer never qualified for the mortgage because the lending agency was never satisfied from whence the additional $1700 down payment was to come. Although no evidence was presented on this point it appears that this additional deposit was required for buyer to reach a 10 percent down payment on the price of the residence. The July 9, 1972 deposit receipt contract that was in effect with respect to this transaction provides in pertinent part: "2. An additional sum of seventeen hundred dollars ($1700) shall be deposited with Escrow Agent before closing. In the event such sum is not so deposited, Seller at his option may cancel and terminate this agreement." "3. Buyer to apply for, qualify for, and obtain a Mortgage insured by the FHA Section in an amount not less than $31,550. In the event the Buyer fails to qualify for said mortgage, all said deposit shall be returned immediately, less the cost of the credit report. "14. It is mutually agreed that the trans action shall be closed and the Buyer shall pay the balance of the first payment and execute any and all papers necessary to be executed by him for the completion of this purchase within days from the aforementioned abstract of title, or such time as shall reasonably be required by seller to make such title good, otherwise the herein named Escrow Agent is hereby directed by both Seller and Buyer to divide the monies being held by said Escrow Agent, under the terms under this Contract between the Seller and Broker herein named as hereinafter provided." "It is further agreed that in case of default by the Buyers, the Seller may at his option take legal action at law and/or in equity to enforce this Contract, in which event, the Buyer shall pay reasonable attorney fees and court costs; or else the Seller may at his option retain one half of the deposit herein paid as considera tion for the release of the Buyer by the Seller from any and all further obligations under this Contract to the Seller, which release shall be implied from such act of retention by the Seller." Buyer quit the premises in October, 1972 and thereafter demanded return of his deposit from seller. By letter from buyer's attorney (Exhibit 6) dated March 19, 1973 demand was made for return of the deposit. By letter dated March 23, 1973 (Exhibit 7) Seller denied the refund of the deposit on grounds that the buyer had breached the contract as the Buyer had qualified for and been approved for a mortgage by the Collateral Mortgage Co. The money was withdrawn from the escrow account and paid to the seller. Defendant is an attorney, mortgage broker, general contractor, developer and real estate broker. For the past decade he has devoted most of his energies toward real estate development. This is the first time charges have been preferred against him by the Florida Real Estate Commission.
The Issue The issues posed for decision herein are whether or not the Respondent, Loretta Woloszyk, failed to account for or deliver a security deposit received by her, in violation of Section 475.25(1)(c), Florida Statutes, and whether or not Respondent derivatively violated Subsection 475.25(1)(a), Florida Statutes, in that she is guilty of a breach of trust in a business transaction and, therefore, violated Subsection 475.25(1)(a), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. Loretta Woloszyk, Respondent herein, is presently registered with the Board of Real Estate as a broker/salesperson. On or about April 15, 1977, Respondent Woloszyk entered into a deposit receipt contract executed with John F. and Jeannine M. Chrest as purchasers of a house owned by Respondent Woloszyk located at 210 North G Street, Lake Worth, Florida. Pursuant to the terms of said deposit receipt contract, John E. Knowles signed as broker for receipt of a $300 cash deposit from the Chrests as purchasers. On or about April 22, 1977, the $300 deposit was placed in the escrow account of Sunshine Estates, Inc., the corporate broker by which the Respondent was employed. The deposit receipt contract was contingent upon the buyer qualifying for a Veterans Administration (VA) mortgage loan in the amount of $26,900. The relevant portion of the contract provided as follows: VA Appraisal: It is expressly agreed that, notwithstanding any other provisions of this contract, the purchaser shall not incur any penalty by forfeiture of earnest money or otherwise be obligated to complete the purchase of the property described herein, if the contract price or cost exceeds the reasonable value of the property established by the Veterans Administration. The purchaser shall, however, have the privilege and option of proceeding with the consummation of this contract without regard to the amount of the reasonable value established by the Veterans Administration. By letter dated May 25, 1977, the Chrests were notified that the subject property was appraised at $18,750, and thus was not acceptable under the minimum property appraisal standards of the Veterans Administration. With this notification, John Chrest went to the offices of Sunshine Estates, Inc., and demanded a return of his $300 earnest money deposit. John E. Knowles, as broker in receipt of the Chrests' $300 deposit, returned the $300 deposit check to Respondent Woloszyk, who deducted $200 from the Chrests' $300 deposit based on a separate rental transaction with the Chrests on the same subject property. During the hearing, John Chrest testified that he contacted Respondent for purchase of her residence situated in Lake Worth Farms. Mr. Chrest agreed during cross-examination that he initially contacted Respondent to "buy or rent Respondent's residence". He also testified that upon receipt of the VA appraisal at an amount below the agreed upon purchase price of $26,900, he agreed to pay to Respondent rent in the amount of $150 plus a $50 security deposit, which amount was deducted from the Chrests' security deposit. The FHA-VA deposit receipt contract contains a special condition entered by and between the parties (Woloszyk and the Chrests) indicating that "Buyer will pay rental of $225 per month until closing, beginning on or before May 1, 1977. Buyer will honor rental agreement for Kenneth Johnson, tenant, from April 1, 1977, to March 31, 1978, or $80 per month rent." Based thereon, and on John F. Chrest' s admission that be agreed to the rental fee which was deducted from his deposit received by Respondent Woloszyk, the administrative charges alleged are without basis. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMEND: That the Administrative Complaint filed herein be DISMISSED in its entirety. RECOMMEND this 6th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1979 COPIES FURNISHED: John Namey, Esquire Department of Professional Regulation Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Ms. Loretta Woloszyk 733 Husiingbird Way, Apt. #3 North Palm Beach, Florida 33408
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact At all pertinent times, respondent Richard L. Faircloth has held a real estate salesman's license, No. SL 0407933, issued by petitioner Department of Professional Regulation, Division of Real Estate, authorizing him to work, since July 16, 1990, as a salesman for Discount Realty-Fla., Inc., a corporate broker in Alachua, Florida, whose "qualifying broker" is respondent's wife, Lise H. Faircloth. Petitioner's Exhibit No. 1. On December 1, 1990, Alvin and Betty J. Wilson came to Mr. Faircloth's office in Alachua to sign a form deposit receipt and purchase and sale agreement, Petitioner's Exhibit No. 2, by which they offered to purchase a house on Northwest 18th Terrace in Gainesville; and they gave Mr. Faircloth five hundred dollars in cash, as earnest money. Mr. Faircloth did not recall at hearing whether he put the money in his pocket at that point, but the money was never deposited in an escrow or trust account. After Mr. and Mrs. Wilson left, Mr. Faircloth communicated their offer by telephone to a representative of the house's owner. The offer was declined. When he telephoned the Wilsons with the news, he asked them to come back to his office. With their return later that day, a conversation lasting about an hour and a half began, at the end of which the Wilsons authorized respondent and his broker to retain the earnest money deposit for use in the event respondent located another house they decided to make an offer to purchase. For the same purpose, Mrs. Wilson later wrote respondent a check in the amount of $1,500, which was duly deposited in the broker's escrow account. Shortly thereafter, respondent drew a check on the escrow account in Mr. Wilson's favor in the amount of $200 (so he could pay an electric bill), but the bank refused to cash it. Funds in the escrow account were insufficient, because the Wilsons' $1,500 check had bounced. Mr. Faircloth also wrote a check the Wilsons used as a deposit when they rented a truck to move into a duplex they rented from him. The deposit check was ultimately returned to respondent, without being cashed. (When the Wilsons moved, respondent regained possession of the dog he had earlier given the Wilsons' son. He was never reimbursed $78 he expended for the care and feeding of this dog, after it had become the Wilsons' property.) The Wilsons paid $450 a month, in advance, while they rented the duplex, and nobody ever asked for a security deposit. When Mrs. Wilson received a check from Beneficial National Bank (who lent money against an anticipated tax refund) in the amount of $1,466, Petitioner's Exhibit No. 5, she endorsed it in favor of respondent or the broker and, as far as the evidence showed, this money was put in escrow (although $200 might have been deducted beforehand.) In any event, respondent transferred $200 to the Wilsons more or less contemporaneously. Altogether, the Wilsons entrusted respondent with $1,776 ($500 + $1466 - $200 = $1,766) for possible use as earnest money. After Mr. and Mrs. Wilson bought a house respondent had shown them in December of 1990, but through another broker's office, without availing themselves of Mr. Faircloth's assistance in closing the transaction, they asked him to return the money they had given him. He gave them a check signed by his wife, drawn on a Discount Realty-Fla., Inc. account in the amount of $1,316, on which was written "return of deposit less 450 00/100 security." Petitioner's Exhibit No. 6. The check was dated April 17, 1991. At hearing, Mr. Faircloth testified that the $1,316 check to the Wilsons represented a $50 overpayment. He conceded that $450 had been improperly deducted from the moneys the Wilsons paid, as a claimed security deposit. But he contended that he and the Wilsons had agreed to a non- refundable, $500 "finder's fee" during their second visit on December 1, 1990. In fact, the Wilsons never agreed to any finder's fee, non-refundable or otherwise. At the time it was received, respondent and his wife gave two receipts for the Wilsons' $500. Each reflected that it was to be deposited as earnest money, and no subsequent writing indicated any different agreement between the parties. As late as April of 1991, respondent's conduct, notably delivery of the $1,316 check to the Wilsons, was inconsistent with the putative agreement about a finder's fee he testified to at hearing.
Recommendation It is, accordingly, RECOMMENDED: That petitioner suspend respondent's license for one year. DONE and ENTERED this 14 day of August, 1992, in Tallahassee, Florida. Copies furnished to: Janine Myrick, Esquire P.O. Box 1900 Orlando, FL 33802 Richard L. Faircloth Post Office Box 1859 Alachua, FL 32615 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14 day of August, 1992. Darlene F. Keller, Division Director Division of Real Estate 400 W. Robinson Street P.O. Box 1900 Orlando, FL 32802-1900
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Evon E. Brewton, is a licensed real estate broker/salesman whose license has been in an inactive (dormant) status for approximately one year. Respondent has been a resident of Bay County since approximately 1924. On March 29, 1978, Respondent assisted Mildred C. Webber, a real estate developer, in the search of property suitable for development purposes in Bay County, Florida. Such efforts led Respondent to seek out Walter 13. West, who had a parcel of property in Bay County that he desired a "quick sale". To accomplish such a sale, local T.V. advertisements were used. Respondent's efforts resulted in a contract between Mildred C. Webber and Walter B. West (Seller) for the purchase and sale of the West property for a purchase price of $115,500.00. Mr. West, the Seller, in unequivocal terms and conditions, made clear to Respondent that he was desirous of selling the property to the first purchaser who was able to tender an acceptable cash offer. Seller West also made clear to Respondent that all offers must contain a sizeable cash deposit to secure the property and which deposit he would consider forfeited provided the transaction failed to close. These conditions were made clear to Ms. Webber by Respondent and she agreed to place a $5,000.00 deposit in the form of a check which was turned over to the Seller. Mr. West accepted Ms. Webber's offer to purchase the property described as Parcel No. 1 for the price of $115,500.00. The $5,000.00 deposit check tendered by Ms. Webber was signed over to the Seller and was immediately negotiated by Mr. West. Also on March 29, 1978, Respondent secured a contract from Seller West for Ms. Webber to purchase a second parcel of property for which Ms. Webber placed a $500.00 earnest money deposit to secure the offer. Although Mr. West granted Ms. Webber two extensions of time to secure funds to finance the purchase of the two parcels of property, she was unable to secure financing to close the transaction. As a result, Seller West considered Ms. Webber's deposits to be forfeited and, accordingly, he retained the deposit monies. Real estate salesmen R. B. Ballard and J. K. Watts appeared and expressed their familiarity with the West/Webber real estate transactions. Witnesses Ballard and Watts corroborated the pertinent testimony of Respondent respecting the facts that prospective purchaser Webber understood Seller West's conditions and the resulting consequences should she be unable to secure financing to purchase the property. In this regard, testimony herein indicates that Ms. Webber, a knowledgeable real estate developers has not made any demands upon Mr. West to obtain a refund of the deposit monies, nor has any litigation been instituted by her to recover such deposit monies.
Recommendation Based on the foregoing Findings or Fact and Conclusions of Law, it is hereby RECOMMENDED: That the complaint allegations charging that Respondent violated Subsection 475.25(1)(a) and (i) Florida Statutes, be DISMISSED. RECOMMENDED this 3rd day of December, 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1980.
Findings Of Fact Kenneth M. Olson, Jr., is a registered real estate broker with the FREC and Active Firm Member of Olson and Associates Real Estate, Inc., a corporate broker registered with the FREC. A copy of the Administrative Complaint was forwarded to the last address of Defendants registered with the FREC by certified mail numbers 4747 and 4748 and the notice of hearing was forwarded to the same address by certified mail numbers 4613 and 4614. Accordingly the Hearing Officer had jurisdiction over the Defendants and the offenses. By contract dated September 17, 1975 (Exhibit 6) Joseph J. Pillucere contracted to purchase real property from Paul L. Nave. The contract provided, inter alia, for a $500 earnest money deposit, $9500 down payment at closing with purchaser to assume existing first mortgage of approximately $28,000; and the seller taking back a purchase money second mortgage in the amount of $17,000. Thereafter, at the time scheduled for closing, the purchaser failed to produce the additional down payment required, execute the second mortgage and assume the existing first mortgage. After receiving conflicting demands from buyer and seller for the return of the earnest money deposit Defendant requested an advisory opinion from the FREC in accordance with Section 475.25(1)(c) FS. On May 13, 1976 an advisory opinion (Exhibit 5) was given by FREC to the Defendant, with copies to both parties to the contract, advising Defendant that the earnest money deposit should-be disbursed to the seller. The deposit has been disbursed to neither party to the contract.
Findings Of Fact The Florida Real Estate Commission presented evidence of the service of the Notice of Hearing upon Madison B. Graves, Esquire, 612 East Carson, Las Vegas, Nevada, 89101, as Counsel for Barbara Orcutt, by certified mail return receipt requested. Barbara Orcutt is presently a non-active broker; however, Barbara Orcutt was at the time in question in the Administrative Complaint a registered real estate broker with Gold Palm Realty Corporation, 1701 S. Federal Hwy., Boca Raton, Florida, 33632. Sigurd N. Hersloff was the owner of real estate described as 819 Lake Drive, Boca Raton, Florida. Hersloff contacted Jacqueline M. Winter, an associate broker with Gold Palm Realty, and advised her of his intent to sell said real property. Winter, in turn, mentioned the fact that Hersloff desired to sell his home to the Respondent, Barbara Orcutt. Orcutt stated to Winter that she (Orcutt) knew of a potential buyer for Hersloff's real property. David F. Young was advised by Orcutt of the availability for purchase of Hersloff's real property. Orcutt showed Hersloff's property to David F. Young, and subsequently David F. Young made an offer for purchase of Hersloff's real property for a purchase price of $76,200 putting up a $500 earnest money deposit. This proposal was presented to Hersloff in the presence of Winter. Hersloff was concerned and annoyed that Orcutt had received only $500 as an earnest money deposit. Hersloff told Orcutt that he did not consider $500 earnest money deposit sufficient compensation for taking his property off the market and advised Orcutt that Young would have to pay a full 10 percent of the $76,200 purchase price as earnest money deposit. Orcutt advised Hersloff that Young could not pay an earnest money deposit. Hersloff advised Orcutt that if Young could not pay the $7,620 earnest money deposit that he would accept a promissory note for the difference between the $500 and the $7,620. Orcutt left Hersloff and Winter presumably to return to Young to present Hersloff's objection to the contract for purchase. Orcutt later returned and spoke with Hersloff and Winter. She represented to Hersloff and Winter that she had obtained a promissory note from Young made out to Gold Palm Realty Corp. and that same would be deposited in Gold Palm Realty Corporation's escrow account together with Young's $500 earnest money deposit. Upon this representation Hersloff executed the contract for purchase presented by Orcutt in Young's behalf. The contract for purchase provided in part that Hersloff was to hold a second mortgage in the amount of $15,000 for a period of four months from the date of closing, said second mortgage to bear no interest. Young, who was in the process of selling real property in another state, became concerned that he might not be able to repay the second mortgage to Hersloff within the four months as stated in the contract. He spoke with Orcutt and asked her if she could obtain an extension of two months within which to pay the second mortgage. Orcutt represented to Young at that time that she did not anticipate that Hersloff would have any objection to such an extension. Subsequently in a conversation between Hersloff and Young, Hersloff determined that contrary to Orcutt's representation, she had not obtained a promissory note from Young. Young, at that time, learned that Orcutt had not mentioned a possible extension of the mortgage to Hersloff. On November 11, 1974, the Parties closed the transaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the registration of Barbara Orcutt as a non- active broker be suspended for a period of two years. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttman, III, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Madison B. Graves, Esquire 612 East Carson Las Vegas, Nevada 89101
