The Issue The issue in this matter is whether the Florida Real Estate Commission may deny Petitioner’s application for a license as a real estate sales associate, and, if so, whether it is appropriate to do so based on the underlying facts.
Findings Of Fact The Commission is the state agency charged with licensing real estate sales associates in Florida. See § 475.161, Fla. Stat. On January 21, 2016, Petitioner applied to the Commission for a license as a real estate sales associate. In her application, Petitioner dutifully divulged that on December 12, 2002, the Commission revoked her real estate broker’s license. On August 16, 2016, the Commission issued a Notice of Intent to Deny notifying Petitioner that it denied her application for a sales associate license. The Commission denied Petitioner’s application based on its finding that Petitioner’s broker’s license was previously revoked by the Commission in 2002. At the final hearing, Petitioner explained the circumstances that led to her broker’s license revocation. In 2000, a Commission investigator audited her real estate trust account. The audit uncovered information that Petitioner failed to timely transfer a $1,000 deposit and properly reconcile her escrow account. Petitioner disclosed that a sales contract she was handling required the buyers to deposit $1,000 with her as the broker. The sale fell through, and the buyers did not close on the house. In May, 2000, the buyers demanded Petitioner transfer the deposit within 15 business days. Petitioner, however, did not forward the deposit out of her escrow account until four months later in September 2000. Based on this incident, the Commission alleged that Petitioner failed to account for delivered funds; failed to keep an accurate account of all trust fund transactions; failed to take corrective action to balance her escrow account; and filed a false report in violation of sections 475.25(1)(d)1, 475.25(1)e, 475.25(1)(l), 475.25(1)(b) and Florida Administrative Code Rule 61J2-14.012(2). Based on the charges, the Commission ordered Petitioner’s real estate broker’s license permanently revoked. Petitioner stressed that she did not steal the buyers’ money. Her mistake was in not timely transferring the deposit from her trust account. Petitioner asserted that she simply lost track of the funds. At the final hearing, Petitioner accepted full responsibility for her mismanagement. At the final hearing, Petitioner expressed that she first entered the Florida real estate industry in 1982 when she became a licensed real estate sales associate. In 1987, she obtained her broker's license. She subsequently purchased a Century 21 franchise. She conducted her real estate business until 2002 when her broker’s license was revoked. Petitioner explained that she is not seeking another broker’s license from the Commission. Instead, she is just applying for another sales associate license. Petitioner described the difference between a sales associate and a broker.5/ Petitioner stated that a sales associate works directly under, and is supervised by, a broker. The sales associate interacts with prospective buyers and sellers, negotiates sales prices, and accompanies clients to closings. Regarding financial transactions, however, the broker, not the sales associate, processes all funds related to a real estate sale. The broker, not the sales associate, transfers funds into and out of escrow accounts. In other words, the error Petitioner committed as a broker in 2000 could not happen again if she was granted a sales associate license. Petitioner further testified that during the time she worked as a sales associate, she was involved in the sale of approximately 100 houses. Petitioner represented that she never received any complaints or criticisms from any of her clients. Petitioner relayed that she became motivated to return to the real estate business following her husband’s death in 2015. Petitioner expressed that she was very good at selling houses. Real estate is her passion. She voiced that she eats, sleeps, walks, and talks real estate. Despite her misstep in 2000, Petitioner declared that she is a very honest and hardworking person. She just wants another chance to work in the profession that she loves. Currently, Petitioner works for a charitable organization. She helps administer and manage the charity’s finances. Petitioner represented that she has never failed to meet her financial responsibilities. She has always accounted for all of the funds for which she is entrusted (approximately $8 million since she began working for the charity over 20 years ago). No evidence indicates that Petitioner has committed any crimes or violated any laws since her broker’s license was revoked in 2002. At the final hearing, Petitioner presented three witnesses who testified in favor of her receiving a sales associate license. All three witnesses proclaimed that Petitioner is trustworthy, of good character, maintains high moral values, and is spiritually strong. The witnesses, who know Petitioner both personally and professionally, opined that she is honest, truthful, and has an excellent reputation for fair dealing. All three witnesses declared that the public would not be endangered if the Commission granted Petitioner’s application for licensure. Petitioner also produced six letters of support. These letters assert that Petitioner is an honorable and trustworthy person. Based on the competent substantial evidence presented at the final hearing, the preponderance of the evidence provides the Commission sufficient legal grounds to deny Petitioner’s application. Consequently, Petitioner failed to meet her burden of establishing that she is entitled to a license as a real estate sales associate. However, as discussed below, Petitioner demonstrated that she is rehabilitated from the incident which led to the revocation of her broker’s license in 2002. Therefore, the Commission may, in its discretion, grant Petitioner’s application (with restrictions) pursuant to sections 475.25(1) and 455.227(2)(f).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Florida Real Estate Commission has the legal authority to deny Petitioner’s application for licensure. However, based on the underlying facts in this matter, it is RECOMMENDED that the Florida Real Estate Commission enter a final order granting Petitioner’s application for a license as a real estate sales associate. DONE AND ENTERED this 10th day of May, 2017, in Tallahassee, Leon County, Florida. S BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2017.
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, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Paul F. Savich is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0077390 in accordance with Chapter 475, Florida Statutes. Respondent, Ernest M. Haefele, is a licensed real estate broker, having been issued license number 0517821 in accordance with Chapter 475, Florida Statutes. On October 1, 1984, the Respondents, purchasers in their individual capacities, entered into a contract for deed to a tract at the Tropical Acres Subdivision, with Tropical Sites, Inc., and Angie S. Crosby and Eugene T. Crosby, at a sales price of $9,046.50. Said amount to be paid at the rate of $90 per month until paid. Pursuant to the agreement, the Respondents agreed not to assign the agreement without the permission of Tropical Sites, Inc. A closing was held on May 8, 1990, and the Respondents transferred possession of the tract by assignment of contract to Leroy H. and Charlotte Beard. A mobile home on the real property was part of the purchase price for a total sales price of $39,000.00 The agreement called for a down payment of $2,000 to the Respondent Savich. The Beards also signed a mortgage note in favor of the Respondents Savich and Haffele, for $37,000. The note was payable at the rate of $373.15 per month. Upon payment in full, Respondents were obligated to deliver a good and sufficient deed to the property to the purchasers. At the closing, Respondent Haefele was not present. The Beards received two documents at closing, a contract for sale and one other document, but did not receive a copy of the original agreement for deed, a disclosure statement, or a title to the trailer on the tract. In addition, Respondent Savich did not seek permission of Tropical Sites, Inc., prior to the closing. Prior to the closing, the Beards moved onto the property, and subsequently began making monthly payments of $373.15 to Respondent Savich. The Beards had purchased two or three pieces of property in the past, but had always gone through a bank. In relation to this agreement, they understood the nature of the transaction at the time of the closing. In early 1991, Mr. Beard made a telephone inquiry to the County property appraiser's office as to the status of the property for homestead exemption purposes. He was advised that Tropical Sites, Inc. was the current owner of the tract, and that he was not eligible for homestead exemption. The Beards did not apply for homestead exemption at the appraiser's office. In August 1991, the Beards stopped making payments to the Respondents on the advice of their attorney, but continued to reside on the premises until December 1991. In November 1991, an attorney acting on behalf of the Beards made a demand upon Respondent Paul F. Savich for the return of the $2,000.00 deposit. The Respondents did not return the $2,000.00 deposit or otherwise pay the money claimed by the Beards. In his dealings with the Beards, Respondent Savich did not withhold information, lie or mislead the purchasers. They simply were unhappy with the agreement, and decided to get out of it when they recognized that they would not receive title to the mobile home and property until the note was paid in full. In early 1992, the Beards quitclaimed their interest to the property to Respondent Savich's former wife, and they were released from their obligations under the note.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Counts I and II of the Administrative Complaint filed against Respondents Paul F. Savich and Earnest M. Haefele be DISMISSED. DONE AND ENTERED this 30th day of November, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Adopted in substance: paragraphs 1,2,3,4,5,6,7(in part),8,9(in part)10,11,12,13 Rejected as against the greater weight of evidence: paragraphs 7(in part: the $2,000 was a down payment, not an earnest money deposit), 9(in part: the Beards moved on to the property prior to closing. Respondent's proposed findings of fact: Respondent submitted a proposed order with unnumbered paragraphs which partially recounted the testimony of several of the witnesses and combined facts and conclusions of law. Therefore, a separate ruling on Respondent's proposals are not possible. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR - Division of Real Estate 400 W. Robinson Street #N-308 Orlando, FL 32801-1772 J. Stanford Lifsey, Esquire 101 E. Kennedy Blvd., Ste. 1465 Tampa, Florida 33602 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at the "formal hearing," and the record as a whole, the following findings of fact are made: Respondent is now, and has been since October of 2000, a licensed real estate sales associate in the State of Florida, holding license number 695252. He is currently associated with AAA Realty, Inc., a broker corporation doing business in Broward County, Florida. From March 1, 2001, through June 26, 2001, Respondent was an active real estate sales associate with Allen Real Estate, Inc. (Allen), a broker corporation doing business in St. Lucie County, Florida. From June 27, 2001, through August 13, 2001, Respondent was an active real estate sales associate with Realty Unlimited, Inc. (Unlimited), a broker corporation (affiliated with GMAC Real Estate) with offices in Port St. Lucie and Stuart, Florida. Unlimited is now, and has been at all times material to the instant case, owned by Kevin Schevers, a Florida-licensed real estate broker. Gary Sprauer is a Florida-licensed real estate sales associate. He is currently associated with Unlimited. Like Respondent, Mr. Sprauer began his association with Unlimited on June 27, 2001, immediately after having worked for Allen. Respondent and Mr. Sprauer worked as "partners" at both Allen and Unlimited. They had an understanding that the commissions they each earned would be "split 50-50" between them. On February 7, 2001, Allen, through the efforts of Respondent and Mr. Sprauer, obtained an exclusive listing contract (Listing Contract) giving it, for the period of a year, the "exclusive right to sell," in a representative capacity, commercial property located at 3800 South Federal Highway that was owned by Vincent and Renee Piazza (Piazza Property). Paragraphs 6 and 7 of the Listing Contract addressed the subjects of "compensation," "cooperation with other brokers," and "dispute resolution," respectively, and provided, in pertinent part as follows as follows: COMPENSATION: Seller will compensate Broker as specified below for procuring a buyer who is ready, willing, and able to purchase the Property or any interest in the Property on the terms of this Agreement or on any other terms acceptable to Seller. Seller will pay Broker as follows (plus applicable sales tax): 8% of the total purchase price or $15,000 maximum, no later than the date of closing specified in the sales contract. However closing is not a prerequisite for Broker's fee being earned. * * * (d) Broker's fee is due in the following circumstances: (1) If any interest in the Property is transferred . . . , regardless of whether the buyer is secured by Broker, Seller or any other person. * * * COOPERATION WITH OTHER BROKERS: Broker's office policy is to cooperate with all other brokers except when not in the Seller's best interest, and to offer compensation to: Buyer's agents, who represent the interest of the buyer and not the interest of Seller in a transaction, even if compensated by Seller or Broker Nonrepresentatives Transaction brokers. None of the above (if this box is checked, the Property cannot be placed in the MLS). * * * 10. DISPUTE RESOLUTION: This Agreement will be construed under Florida law. All controversies, claim and other matters in question between the parties arising out of or relating to this Agreement or the breach thereof will be settled by first attempting mediation under the rules of the American Arbitration Association or other mediator agreed upon by the parties. . . . Shortly after they left the employ of Allen and began working for Unlimited, Respondent and Mr. Sprauer showed Nicholas Damiano the Piazza Property. Mr. Damiano thereafter made a written offer to purchase the Piazza Property, which the Piazzas accepted, in writing, on July 4, 2001. The sales price was $165,000.00. Mr. Damiano put down a $10,000.00 deposit, which, in accordance with paragraph 2(a) of the contract between Mr. Damiano and the Piazzas (Sales Contract), was "held in escrow by [Unlimited]." The obligations of Unlimited, as escrow agent, were described in paragraph 6 of the Sales Contract, which provided as follows: ESCROW. Buyer and Seller authorize GMAC, Realty Unlimited Telephone: . . . Facsimile: . . . Address: . . . to receive funds and other items and, subject to clearance, disburse them in accordance with the terms of this Contract. Escrow Agent will deposit all funds received in a non- interest bearing account. If Escrow Agent receives conflicting demands or has a good faith doubt as to Escrow Agent's duties or liabilities under this Contract, he/she may hold the subject matter of the escrow until the parties mutually agree to its disbursement or until issuance of a court order or decision of arbitrator determining the parties' rights regarding the escrow or deposit the subject matter of the escrow with the clerk of the circuit court having jurisdiction over the dispute. Upon notifying the parties of such action, Escrow Agent will be released from all liability except for the duty to account for items previously delivered out of escrow. If a licensed real estate broker, Escrow Agent will comply with applicable provisions of Chapter 475, Florida Statutes. In any suit or arbitration in which Escrow Agent is made a party because of acting as agent hereunder or interpleads the subject matter of the escrow, Escrow Agent will recover reasonable attorneys' fees and costs at all levels, with such fees and costs to be paid from the escrowed funds or equivalent and charged and awarded as court or other costs in favor of the prevailing party. The parties agree that Escrow Agent will not be liable to any person for misdelivery to Buyer or Seller of escrowed items, unless the misdelivery is due to Escrow Agent's willful breach of this Contract or gross negligence. Paragraph 12 of the Sales Contract addressed the subject of "brokers" and provided as follows: BROKERS. Neither Buyer nor Seller has utilized the services of, or for any other reason owes compensation to, a licensed real estate broker other than: Listing Broker: Allen Real Estate, Inc. who is a transaction broker and who will be compensated by x Seller _ Buyer _ both parties pursuant to x a listing agreement _ other (specify) Cooperating Broker: GMAC Realty Unlimited who is a transaction broker who will compensated by _ Buyer x Seller _ both parties pursuant to _ an MLS or other offer of compensation to a cooperating broker _ other (specify) (collectively referred to as "Broker") in connection with any act relating to the Property, included but not limited to, inquiries, introductions, consultations and negotiations resulting in this transaction. Seller and Buyer agree to indemnify and hold Broker harmless from and against losses, damages, costs and expenses of any kind, including reasonable attorneys' fees at all levels, and from liability to any person, arising from (1) compensation claimed which is inconsistent with the representation in this Paragraph, (2) enforcement action to collect a brokerage fee pursuant to Paragraph 10, (3) any duty accepted by Broker at the request of Buyer or Seller, which duty is beyond the scope of services regulated by Chapter 475, F.S., as amended, or (4) recommendations of or services provided and expenses incurred by any third party whom Broker refers, recommends or retains for or on behalf of Buyer or Seller. The Damiano/Piazza transaction was originally scheduled to close on July 25, 2001. At the request of the Piazzas, the closing was rescheduled for August 7, 2001. A few days before August 7, 2001, Mr. Sprauer asked Respondent "where the closing was going to take place" and "what title company" would be handling the matter. Respondent replied that the closing was "going to be delayed again because Mr. Damiano . . . was going to have to have some type of cancer surgery." It turned out that the closing was not "delayed again." It took place on August 7, 2001. At the closing were Mr. Damiano, the Piazzas, Respondent, and the closing agent from the title company, First American Title Insurance Company (First American).3 Neither Mr. Schevers, nor Mr. Sprauer, was in attendance. Mr. Sprauer did not even know that the closing was taking place. He was under the impression, based on what Respondent had told him, that the closing had been postponed. Had he not been misinformed, he would have attended the closing. Respondent did not contact Mr. Sprauer following the closing to let him know that, in fact, the closing had occurred. Mr. Schevers, on the other hand, was made aware that closing would be held on August 7, 2001. He was unable to attend because he had "prior commitments." It was Respondent who informed Mr. Schevers of the August 7, 2001, closing date. The morning of August 7, 2001, Respondent went to Unlimited's Stuart office and asked Mr. Schevers for the $10,000.00 Unlimited was holding in escrow in connection with the Damiano/Piazza transaction, explaining that he needed it for the closing that was going to be held later that day. Before complying with Respondent's request, Mr. Schevers contacted First American and asked that he be faxed a copy of the United States Department of Housing and Urban Development Settlement Statement (HUD Statement) that First American had prepared for the closing. As requested, First American faxed a copy of the HUD Statement to Mr. Schevers. Upon reviewing the document, Mr. Schevers "immediately noticed that [it indicated that] the entire commission [of $7,000.00] was going to Allen." Mr. Schevers "then proceeded to call First American" and asked why Unlimited was not "reflected on this settlement statement." Mr. Schevers was told that a First American representative "would get right on it and get back to [him]." Mr. Schevers did not wait to hear back from First American before handing an "escrow check" in the amount of $10,000.00 to Respondent. He instructed Respondent, however, to "not give anybody this check unless that statement [the HUD Statement] [was] changed and reflect[ed] [Unlimited's]" share of the commission earned from the sale of the Piazza Property. He further directed Respondent to telephone him if this change was not made. Respondent did not follow the instructions Mr. Schevers had given him. He delivered the $10,000.00 "escrow check" to the closing agent at the closing, even though the HUD Statement had not been changed to reflect Unlimited's sharing of the commission. At no time during the closing did Mr. Schevers receive a telephone call from Respondent. According to the HUD Statement that Mr. Damiano, the Piazzas, and the closing agent signed at the closing, Allen received a commission of $7,000.00 "from seller's funds at settlement." The document makes no mention of any other commission having been paid as part of the closing. On or about August 9, 2001, Respondent received a "commission check" from Allen. The check was made payable to Respondent and was in the amount of $3,000.00. Under the "DOLLARS" line on the check, the following was typed: 4200 Total Comm[4] 1200 ADVANCE[5] Typed next to "MEMO" on the bottom left hand corner of the check was "DAMIANO-PIAZZA 165,000 S&L." It has not been shown that the "commission check" Respondent received from Allen was for anything other than the commission Allen owed Respondent for services performed when Respondent was still employed by Allen. Mr. Schevers' consent to Respondent's receiving this $3,000.00 "commission check" was neither sought nor given. Less than a week after the closing, having spotted Mr. Damiano mowing grass on a vacant lot that Mr. Damiano owned, Mr. Sprauer walked up to him and asked "how his surgery [had gone]." Mr. Damiano "acted very surprised [like] he didn't know what [Mr. Sprauer] was talking about." Mr. Damiano's reaction to his inquiry led Mr. Sprauer to believe "that the closing had probably taken place." He "immediately contacted [Mr. Schevers] and asked him to check into it." Mr. Schevers subsequently learned from First American that Allen "had gotten all of the [commission] check" at the closing. Mr. Schevers then telephoned Respondent. This was the first communication he had had with Respondent since before the closing. Respondent told Mr. Schevers that "he got the check" and "he would be right over with it." Respondent, however, did not keep his promise. After his telephone conversation with Respondent, Mr. Schevers discovered that Allen "had cut [Respondent] a check and [Respondent] had gone immediately and deposited it." This discovery prompted Mr. Schevers to place another telephone call to Respondent. This telephone conversation ended with Mr. Schevers telling Respondent "he was terminated." Mr. Schevers thereafter notified Petitioner in writing that Respondent was no longer associated with Unlimited. He also filed with Petitioner a complaint against Respondent alleging that Respondent had "acted inappropriately" in connection with the Damiano/Piazza transaction. Mr. Schevers had expected Unlimited to receive, for the role it played in the Damiano/Piazza transaction, "50 percent of the total commission," or $3,500.00, in accordance with the provisions of the "multiple listing service for St. Lucie County."6 He holds Respondent responsible, at least in part, for Unlimited's not receiving these monies.7 At the time of the Damiano/Piazza transaction, Unlimited had contracts with its sales associates which provided that the associates would receive "70 percent of the net" of any commission Unlimited earned as a result of the associates' efforts. Had Unlimited received a commission as a result of the Damiano/Piazza transaction, it would have "split" it with Respondent and Mr. Sprauer as required by the contracts it had with them.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order dismissing the Administrative Complaint issued against Respondent in the instant case in its entirety. DONE AND ENTERED this 7th day of July, 2004, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 7th day of July, 2004.
The Issue In this disciplinary proceeding, the issues are: (1) whether Respondents, who are licensed real estate brokers, failed within a reasonable time to satisfy a civil judgment relating to a real estate commission; (2) whether Respondents failed to maintain trust funds in an escrow account as required; and (3) whether disciplinary penalties should be imposed on Respondents, or either of them, if Petitioner proves one or more of the violations charged in its Administrative Complaint.
Findings Of Fact The Parties Respondent Marlene Montenegro Toirac ("Toirac") is a licensed real estate broker subject to the regulatory jurisdiction of the Florida Real Estate Commission ("Commission"). Respondent Home Center International Corp. ("HCIC") is and was at all times material hereto a corporation registered as a Florida real estate broker subject to the regulatory jurisdiction of the Commission. Toirac is an officer and principal of HCIC, and at all times relevant to this case she had substantial, if not exclusive, control of the corporation. Indeed, the evidence does not establish that HCIC engaged in any conduct distinct from Toirac's in connection with the transactions at issue. Therefore, Respondents will generally be referred to collectively as "Toirac" except when a need to distinguish between them arises. Petitioner Department of Business and Professional Regulation, Division of Real Estate, has jurisdiction over disciplinary proceedings for the Commission. At the Commission's direction, Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. The Veloso Judgment Toirac and Elena Veloso ("Veloso") did business together and wound up as opponents in court. Veloso got the better of Toirac, obtaining, on June 5, 2001, a judgment in the amount of $4,437.60 against her and HCIC from the Dade County Court. The judgment liquidated a real estate commission that Veloso claimed the defendants owed her. On June 12, 2001, Toirac filed a Motion to Set Aside Final Judgment, wherein she asked the county court to (a) vacate its judgment in favor of Veloso, on the ground that the defendants had not been served with process and (b) consolidate Veloso's county-court proceeding with an action then pending in circuit court, which Toirac had brought against Veloso.1 As of the final hearing in this case, Toirac's motion, after four years, had not been heard or decided. As of the final hearing in this case, Toirac had not satisfied the judgment in favor of Veloso. The Escrow Account Shortfall On January 24, 2002, Tibizay Morales, who was then employed by Petitioner as an investigator, conducted an audit of Toirac's records. (The impetus for this audit was Petitioner's receipt, on or about June 20, 2001, of a complaint from Veloso.) Pursuant to the audit, Ms. Morales determined that the balance in Toirac's escrow account was $4,961.05. Ms. Morales determined further that Toirac's trust liability, i.e. the total amount of money that she should have been holding in escrow on her clients' behalf, was $12,242.00. Thus, there existed a shortfall of $7,280.95 in Toirac's escrow account. Toirac was not able, at the time of the audit, to explain the shortfall. A few weeks later, however, by letter dated February 13, 2002, Toirac informed Ms. Morales that the shortfall had been caused by the issuance, "in error," of a check in the amount of $7,345.00, which was drawn on HCIC's escrow account and payable (evidently) to HCIC; HCIC had deposited the funds into its operating account, thereby creating, according to Toirac, an "overage" of $7,345.00 in the latter. To correct the problem, Toirac had arranged for the transfer of $7,345.00 from HCIC's operating account to its escrow account, which was accomplished on or about February 1, 2002. The Charges In counts I and IV, Petitioner charges Respondents with failing to account for and deliver trust funds, in violation of Section 475.25(1)(d)1., Florida Statutes.2 Petitioner's position is that Respondents failed within a reasonable time to satisfy the county-court judgment in favor of Veloso. In counts III and V, Petitioner accuses Respondents of having failed to maintain trust funds in the real estate brokerage escrow account until disbursement was properly authorized, in violation of Section 475.25(1)(k), Florida Statutes. Petitioner's position is that the escrow account shortfall identified on January 24, 2002, is proof that funds held in escrow had been disbursed without proper authorization. Ultimate Factual Determinations There is no dispute (for Toirac admitted at final hearing) that the judgment debt owed by Respondents to Veloso relates to a real estate commission. It is also undisputed that, as of the final hearing, the county-court judgment had not been satisfied. The undersigned determines that Respondents have failed to satisfy the civil judgment in Veloso's favor within a reasonable time.3 Therefore, the undersigned finds Respondents guilty of violating Section 475.25(1)(d)1., Florida Statutes.4 It is determined that the erroneous transfer, via check, of funds from HCIC's escrow account to its operating account constituted an unauthorized disbursement of funds entrusted to Toirac by others who had dealt with her as a broker. While this might have resulted from the simple mistake of an incompetent bookkeeper, as Toirac maintains, nevertheless the disbursement was unauthorized and substantial——amounting to approximately 60 percent of Toirac's total trust liability. Therefore, the undersigned finds Respondents guilty of violating Section 475.25(1)(k), Florida Statutes. In view of the foregoing, Petitioner has established the charges set forth in counts I, III, IV, and V of its Administrative Complaint, by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order that: (a) finds Respondents guilty as charged in counts I, III, IV, and V of the Administrative Complaint; (b) suspends Respondents' respective real estate licenses for 90 days; and (c) imposes an administrative fine of $2,500 against Respondents, jointly and severally; and (d) places Respondents on probation for a period of at least 3 years, subject to such lawful conditions as the Commission may specify. DONE AND ENTERED this 14th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 September, 2005.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. David B.C. Yeomans, Jr., is now and was at all times material hereto a licensed real estate broker having been issued license number 0163386. During times material, Respondent was the qualifying broker for G & A Realty and Investments, Inc., a corporation licensed as a real estate broker in the State of Florida. 1/ From approximately April 1985 to December 1985, Respondent Yeomans was the president and qualifying broker for G & A. Wilfredo Gonzalez, a licensed real estate salesman and Alberto Aranda were each 50 percent shareholders of G & A. Wilfredo Gonzalez, while licensed as a real estate salesman in the employ of G & A, solicited and obtained a client, Alfredo Susi, who made an offer to purchase a commercial property in Dade County, Florida. In connection with the offer, Alfredo Susi entrusted a $10,000 earnest money deposit with Wilfredo Gonzalez to be held in trust in G & A's escrow account. The seller rejected Susi's offer to purchase whereupon Alfredo Susi made demands upon Gonzalez for return of the earnest money deposit. Wilfredo Gonzalez attempted to return the earnest money deposit entrusted by Susi via check dated November 18, 1985 drawn on G & A's escrow account. Upon presentation of the subject check by Susi, it was returned unpaid due to non-sufficient funds. Alfredo Susi has been unable to obtain a refund of the deposit submitted to Gonzalez. Wilfredo Gonzalez used the deposit presented by Susi and did not apprise Respondent Yeomans of what or how he intended to dispose of Susi's deposit. Alfredo Susi had no dealing with Respondent Yeomans and in fact testified and it is found herein, that Susi's dealings in this transaction, were exclusively with Wilfredo Gonzalez. Tony Figueredo, a former salesman with G & A, is familiar with the brokerage acts and services performed by Respondent Yeomans and Wilfredo Gonzalez. During his employment with G & A, Figueredo had no dealing with Respondent Yeonans and in fact gave all escrow monies to Wilfredo Gonzalez. Carolyn Miller, the president and broker for Rite Way, Realtors, an area brokerage entity, is familiar with the customs and practices in the Dade County area brokerage operations. Ms. Miller considered it a broker's responsibility to supervise all salesman and to review escrow deposits and corresponding accounts approximately bimonthly. Theodore J. Pappas, Board Chairman for Keyes Realtors, a major real estate brokerage entity in Dade County, also considered it the broker's responsibility to place escrow accounts into the care and custody of a secretary and not the salesman. Mr. Pappas considered that in order to insure that funds were not misappropriated, checks and balances and intensive training programs would have to be installed to minimize the risk of misappropriation of escrow deposits. Mr. Pappas conceded however that it was difficult to protect against dishonest salesman. Respondent Yeomans has been a salesman for approximately eleven years and during that time, he has been a broker for ten of those eleven years. During approximately mid 1984, Respondent Yeomans entered into a six (6) month agreement with G & A to be the qualifying broker and to attempt to sell a large tract of land listed by Context Realty in Marion County (Ocala). When Respondent agreed to become the qualifying broker for G & A Respondent was a signator to the escrow account for G & A Realty. Sometime subsequent to Respondent qualifying as broker for G & A, Wilfredo Gonzalez changed the escrow account and Respondent Yeomans was unfamiliar with that fact. Respondent Yeomans first became aware of Susi's complaint during late 1985 or early 1986. Respondent Yeomans was not a signator on the escrow account where Wilfredo Gonzalez placed the escrow deposit entrusted by Alfredo Susi. (Petitioner's Exhibit 9) During approximately November, 1986, Respondent Yeomans made it known to the officers at G & A that he was withdrawing his license from G & A and attempted to get G & A's officers to effect the change. When this did not occur by December, 1986, Respondent Yeomans effectuated the change himself and terminated his affiliation with G & A. During the time when Respondent was the qualifying agent for G & A, there were approximately four employees and little activity to review in the way of overseeing real estate salespersons. During this period, Respondent Yeomans reviewed the escrow account for G & A that he was aware of. During the time that Respondent Yeomans was qualifying broker for G & A, he was primarily involved in the undeveloped acreage owned by Context Realty and other REO listed property of G & A. During the period when Respondent Yeomans was qualifying agent for G & A, Wilfredo Gonzalez spent approximately 95 percent of his time managing rental property that he (Gonzalez) owned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of June, 1987 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1987.
Findings Of Fact Respondent is now and was at all times material to this action a licensed real estate broker in the State of Florida, holding license number 0064475. Respondent operated his own real estate brokerage firm under his license. The firm was located in Niceville, Florida. In addition to his real estate brokerage business Respondent maintained and managed his personal real estate investments. Several of these personal investments included rental property which Respondent would later sell. One such piece of property was located at 104 Perdido Circle, Niceville, Florida, and is the property involved in this action. Prior to July 6, 1985, the Respondent, as seller and not as a broker, advertised for sale the Perdido property. Sometime around July 6, 1985, Robert L. Mitchell and June F. Mitchell looked at the Perdido property. Frank Ray, a salesman for John Brooks Realty, an unrelated real estate firm showed the property to the Mitchells. They liked the property and wanted to buy it. Frank Ray made arrangements for himself and the Mitchells to meet with Respondent in order to discuss the terms of the potential purchase contract. They met on July 6, 1985. The meeting lasted approximately an hour to an hour and a half. During the lengthy meeting Respondent went over the purchase terms contained in the contract of sale. The Mitchells main concern was to have immediate occupancy of the house. Special terms were developed for renting the property. At some point during the meeting the down payment came under discussion. Originally, the Mitchells had planned on a $1500 down payment which was acceptable to Respondent. However, as the meeting progressed the Mitchells decided they would like to reduce the amount of the down payment. Respondent informed the Mitchells that the only way he could decrease the $1500 down payment was to make the money a non-refundable option payment. Respondent then marked out the $1500 down payment figure contained in the purchase contract and inserted a $1200 figure. Respondent concurrently added the language "option payment" next to the $1200 figure. The remainder of the contract was discussed and the Mitchells signed the amended document. The Mitchells then wrote a check to Respondent, personally, in the amount of $1200. The note section of the check the Mitchells wrote contained the language "house down payment." The exact discussion on the down payment/option is not clear. What is clear from the evidence is that neither party had a meeting of the minds over what the $1200 check was. The Mitchells being very inexperienced in real estate thought it was a down payment. Although it is doubtful the Mitchells understood the legal meaning of the term "down payment." Respondent thought it was a non- refundable option payment. Absolutely no evidence of fraud or misrepresentation on the part of Respondent was demonstrated. Likewise, there was no evidence that Respondent in any way used his knowledge or expertise in the real estate market improperly. The final result of the negotiations was that the Mitchells had entered into what on its face purports to be a rental contract with an option to buy. However, since there was no meeting of the minds over the option, the option was eventually unenforceable. Since there was no meeting of the minds regarding the $1200 the money was not properly escrowable property. In essence the $1200 was neither a down payment nor an option payment. This lack of escrowability is borne out by the sales contract which calls for another escrow agent. 1/ The Mitchells took possession of the property for approximately three months. The Mitchells failed to obtain financing. The contract was conditioned upon the Mitchells obtaining financing, and the transaction failed to close. A dispute arose between the parties concerning the down payment/option money. When the dispute could not be resolved by the parties, the Mitchells filed a lawsuit against Nevin H. Nordal demanding a refund of the $1200 "house down payment." As a result of the Mitchell's lawsuit the County Court, in Okaloosa County, Florida, Summary Claims Division, by Amended Final Judgment dated January 20, 1987, awarded the sum of $1,028,87. The judgment figure is the balance of the $1200 after deduction of a counterclaim of $171.13 for cleaning the house after the Mitchells evacuated the property. Additionally, the Respondent was required to pay costs in the sum of $57 for a total of $1,087.87 due the Mitchells. The judgment amount is bearing interest at a rate of 12 percent per annum. The County Court judgment contains no findings of fact as to the Judge's reasoning on the judgment award. The Mitchells have repeatedly demanded of the Respondent that he pay the judgment. He has repeatedly refused to pay the judgment. Respondent did account to the Mitchells for the money when he told them he had deposited the check and had spent the funds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the Administrative Complaint failed against Respondent, Nevin H. Nordal, be dismissed. DONE and ENTERED this 4th day of March, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 4th day of March, 1989.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate sales person under license number 0466167. Respondent's real estate license was invalid during the dates at issue in this proceeding. The license expired on September 30, 1993, and was activated on February 1, 1994. The last license issued to Respondent was issued as a voluntary inactive sales person at 171C Springwood Boulevard, Longwood, Florida. On October 28, 1993, Mr. Frank Canty, terminated Respondent from employment at Frank G. Canty Realty ("Canty"). Mr. Canty notified Respondent of the termination by telephone on or about the same day and immediately filed the form required to notify the Florida Real Estate Commission (the "Commission") of Respondent's change in status. 2/ Mr. Robert Sirianni and Respondent are long time friends. Mr. Sirianni is the broker and owner for Bay Hill Realty, Inc ("Bay Hill"). Mr. Sirianni hired Respondent as a real estate sales person for Bay Hill on November 22, 1993. Mr. Sirianni signed the completed form required to notify the Commission that Respondent had placed his license with Bay Hill. Mr. Sirianni gave the completed form to Respondent to hand deliver to the Commission. However, Respondent failed to deliver the form to the Commission. On November 22, 1993, Respondent showed a condominium to prospective buyers. Respondent represented that he was an employee of Canty. Respondent delivered a written offer of $36,000 to Watson Realty Corporation ("Watson"), the listing office. Respondent used his Canty business card in the transaction. A representative of Watson contacted Mr. Canty to discuss some problems in the transaction. Mr. Canty informed the representative that Respondent was terminated from Canty on October 28, 1993. Watson caused a new contract to be executed between the buyers and sellers showing Watson Realty as the listing and selling office. The transaction closed on the new contract. On December 13, 1993, Mr. Sirianni faxed a memorandum to Watson claiming the sales commission purportedly earned by Respondent. Mr. Sirianni withdrew the demand after learning of the facts and circumstances surrounding the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order: finding Respondent guilty of violating Sections 475.25(1)(b), 475.25(1)(e), and 475.42(1)(b); authorizing the issuance of a written reprimand; placing Respondent on probation for one year; and imposing a fine of $1,000 to be paid in accordance with this Recommended Order. RECOMMENDED this 9th day of May, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May 1995.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility for regulating the real estate profession in the State of Florida. At all times pertinent to this proceeding, the Respondent was a licensed real estate salesperson in the State of Florida, having been issued license number 0189734 in accordance with Chapter 475, Florida Statutes. On July 16, 1991, Petitioner filed an administrative complaint against Respondent which contained certain factual allegations and which charged Respondent with violating certain statutory provisions and rules regulating licensed real estate professionals in the State of Florida. The matter was assigned Case No. 9181335 by Petitioner. Thereafter, the matter was referred to the Florida Division of Administrative Hearing (DOAH) for formal proceedings pursuant to Chapter 120, Florida Statutes. Upon being referred to DOAH, the matter was assigned DOAH Case No. 91-4852. On October 31, 1991, a formal hearing was conducted by a DOAH Hearing Officer. The Respondent was represented by counsel at that formal hearing. Following the formal hearing, a Recommended Order was duly entered by the Hearing Officer which contained findings of fact, conclusions of law, and a recommended disposition of the proceeding. The Hearing Officer found that Petitioner had proved the violations alleged against Respondent by clear and convincing evidence and recommended that Petitioner impose an administrative fine against Respondent in the amount of $1,000. On April 3, 1992, Petitioner entered a Final Order that adopted the findings of fact, conclusions of law, and recommended disposition submitted by the Hearing Officer in DOAH Case 91-4852. The Final Order imposed an administrative fine against Respondent in the amount of $1,000. Respondent thereafter appealed the Final Order to the Third District Court of Appeal of Florida where it was assigned Case No. 92-01033. On June 3, 1992, Petitioner entered an "Order Granting Stay" which stayed the Final Order pending the appeal. On September 21, 1992, Respondent's appeal was dismissed by order of the Third District Court of Appeal. The Final Order entered by Petitioner on April 3, 1992, was lawfully imposed, is final, and is binding on Respondent. At the time of the formal hearing conducted in this proceeding, Respondent had not paid the $1,000 administrative fine that was imposed upon her by the Final Order entered in Case No. 9181335 (DOAH Case No. 91-4852) on April 3, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent violated the provisions of Section 475.25(1)(e) and of Section 475.42(1)(e), Florida Statutes, and which suspends Respondent's license as a real estate salesperson for ten years. It is further recommended that the final order provide that the suspension of Respondent's license be terminated upon her paying the $1,000.00 administrative fine that was imposed upon her by the Final Order entered in Case No. 9181335 (DOAH Case No. 91-4852). DONE AND ORDERED this 13th day of October, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 13th day of October, 1993. COPIES FURNISHED: Theodore R. Gary, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, Suite N-607 Miami, Florida 33128 Cecelia M. Smile 810 Rutland Drive, Apartment 726 Lincoln, Nebraska 68512 Darlene F. Keller, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, John J. Piccione, is an instructor at Gold Coast School of Real Estate, Inc., holding instructor's permit number ZH 31158. He has been a licensed instructor for approximately fifteen years. Piccione used to be the permit holder for Gold Coast School of Realty, Inc., but as of January 3, 1984, the school permit was issued to Mary Piccione. Additionally, Mary Piccione is the chief administrator of Gold Coast School of Realty, Inc. John J. Piccione's license as a real estate broker was suspended for one year, from November 3, 1983 to November 2, 1984.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges contained in the Administrative Complaint be DISMISSED. DONE and ORDERED this 21st day of September, 1984, in Tallahassee, Florida. DIANE K. KIESLING 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 21st day of September, 1984. COPIES FURNISHED: Fred Langford Staff Attorney Department of Professional Regulation Real Estate P. O. Box 1900 Orlando, Florida 32802 John J. Piccione 1515 E. Silver Springs Boulevard Suite 105-WG Ocala, Florida 32670 Harold R. Huff, Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
