The Issue The issue for consideration was whether Respondents violated specified subsections of Section 475.25 Florida Statutes with regard to alleged misuse of escrow funds.
Findings Of Fact At all times relevant hereto Respondent Mary L. Cluett was a licensed real estate broker in the State of Florida, having been issued license number 0197523 in accordance with Chapter 475, Florida Statutes. The last license issued to Mary L. Cluett was as a broker, c/o Cluett Realty, Inc., 4720 Palm Beach Boulevard, Fort Myers, Florida 33905. (pre-hearing stipulation, Paragraph 2). Respondent Cluett Realty, Inc. is now, and was at all times relevant, licensed as a real estate broker in the state of Florida, having been issued license number 0021798 in accordance with Chapter 475, Florida Statutes. The last license issued to Cluett Realty, Inc. was at the address of 4720 Palm Beach Boulevard, Ft. Myers, Florida 33905. (pre-hearing stipulation, paragraph 2). The qualifying broker for Cluett Realty, Inc. is Ernest H. Cluett, husband of Mary L. Cluett. Mary Cluett is the vice-president of the corporation. On October 17, 1984, Charles and Pamela Darr signed a multiple listing agreement with Cluett Realty, Inc. to sell their home at 598 New York Drive, Ft. Myers. (Petitioner's Exhibit #2). On February 4 and 5, 1985, the Darrs and Irving and Beverly Lockner signed a contract for sale and purchase of the New York Drive house. The terms provided for purchase price of $44,000.00; a $500.00 deposit in the form of a promissory note to be redeemed by February 26, 1985; the assumption of an existing mortgage; a second mortgage in the amount of $3,000.00 and a balance to close in the amount of $2500.00. The closing date was set for "March 14, 1985, or as soon as possible". (Petitioner's Exhibit #5). The Darrs and Lockners were told on March 14, 1985 that the paperwork was not ready for closing. The Darrs had already moved out of the house and into a leased apartment and the Lockners had travelled from their home in Baltimore with furnishings to move in. Reluctantly, Pamela Darr agreed to let the Lockners move in that day and pay rent for the rest of the month. It was understood by Ms. Darr that the closing would be on April 1st. (tr. 27,28,29) On March 14, 1985, Mrs. Lockner gave Cluett Realty $1500.00. The receipt signed by Helen Weise, an employee of Cluett Realty, is marked "escrow deposit on property, 398 New York Avenue". (Petitioner's Exhibit #1). On March 22, 1985, Beverly Lockner gave Cluett Realty $500.00; the receipt signed by Mary L. Cluett is marked "Escrow, Darr/Lockner". (Petitioner's Exhibit #3) On April 15, 1985, the Lockners gave Mary Cluett another $500.00 in the form of two checks: one for $362.64 from MSC, Inc. to Irving Lockner ( a paycheck), and a personal check to Cluett Realty from Beverly Lockner in the amount of $137.36 (tr. 17,18, Petitioner's Exhibit #4, Beverly Lockner testimony p. 17) The $2500.00 was placed in the Cluett Realty, Inc. escrow account. (tr-19) The Lockner/Darr transaction closed on June 10, 1985, (Prehearing Stipulation, Paragraph 2) In the meantime, on March 26, 1985 and April 25, 1985 Mary Cluett paid the Darr's mortgage payments for April and May with checks drawn on the Cluett Realty, Inc. escrow account in the amount of $425.38 each, payable to United Mortgage Company. (Prehearing Stipulation, paragraph 2) Beverly Lockner did not give Mary Cluett permission to use the escrow money for the Darr's mortgage. She did not know the money was being taken out until she found Mary Cluett's handwritten note left on her door which indicated that closing would be on May 6, 1985 and showed that two payments totalling $850.76 had been deducted from the $2500.00 escrow account. She called Ms. Cluett and had a confrontation about the deductions. Beverly Lockner intended that the $2500.00 be used for the closing balance. When the transaction finally closed on June 10, she had insufficient funds to close so she gave Cluett Realty a third mortgage and borrowed $500.00 from Pamela Darr. (Beverly Lockner testimony, pp. 6,7,9,16 23-26) The Darrs did not give Mary Cluett permission to use the escrow money to pay the mortgage, although Ms. Darr was concerned that the mortgage be paid. On March 14th, Pamela Darr was aware that the April mortgage payment would be taken out of the escrow account when she picked up a form, alleged signed by the Lockners, with a notation at the bottom about the payment. Pamela Darr went to Mary Cluett's office at 5:30 on that day to pick up the form. (tr. 25, 118, 119, 122, Respondent's Exhibit #1) The form in question provides as follows: [Cluett Realty, Inc. letterhead] March 14, 1985 To Whom It May Concern: We Irving N. and Beverly T. Lockner buyers, of property situated 598 New York Dr., Ft. Myers, Fl. inspected the above property on March 14, 1985 (date) and have found the property to be to our satisfaction and accept property "as is" and taking possession as Owners today. Sellers are not responsible for any maintenance on the house of any kind. (SIGNED) [Beverly Lockner Signature] (Buyer) [Irving Lockner Signature] (Buyer) WITNESS: [Mary Cluett Signature] DATE: [dated 3-14-85] NOTE: OUT OF THE ONE THOUSAND FIVE HUNDRED ($1,500,00) DOLLARS deposited with CLUETT REALTY ESCROW ACCOUNT THE FIRST MONTH'S PAYMENT OF $425.38 shall be made. (Respondent's Exhibit #1) The testimony of Mary Cluett and that of her employee, Helen Weise, differ substantially from Beverly Lockner's testimony regarding Respondent's Exhibit #1. Mary Cluett claims that the form was completed and signed by the Lockners in her office on March 14, 1985, and that after a phone call from Pamela Darr the note at the bottom was added before the Lockners signed. (tr- 68) She claims that by agreeing to the notation, the Lockners's clearly knew about the intended use of the escrow money for the mortgage. Beverly Lockner distinctly remembers the form. She claims that when Mary Cluett came to the house on New York Drive on March 14th, she took the blank form from her case and told the Lockners they needed to sign it that day in order to take over the house. Mrs. Lockner signed her husband's name as he had gone out to the yard. The blanks on the form were not typed in, nor was the note on the bottom. This was one of several blank forms in Mrs. Cluett's case. (testimony of Beverly Lockner, p. 6, 11-13) Helen Weise claims she typed the entire form, all but the letterhead, in the office while the Lockners were there. (tr-88) This testimony is inconsistent with the appearance of the exhibit. Mary Cluett's testimony about this form and about the purpose of the escrow money from Beverly Lockner is not plausible. For example, she claims that when the Lockners came in with the $1500.00 on March 14th the purpose was to pay the note for $500.00 referenced on the Contract for Purchase and Sale and to provide money for the mortgage payments. However, on the 14th of March, while no one knew for certain when the closing would be, it was anticipated that it would take place on April 1st. In that case only one mortgage payment would have been necessary. The amounts and timing of Mrs. Lockner's payments into the escrow account are consistent with her testimony that she was putting aside the funds necessary for closing. Assuming, for argument's sake that Mrs. Lockner did know about and approve the first payment, there is no evidence that she knew about or acceded to the second payment prior to its deduction from the escrow account. Respondent's Exhibits #2, 3, and 4 are dated May 28, 1985, May 6, 1985, and May 11, 1985, respectively. Each are notations on Cluett Realty, Inc. stationery showing the April and May deductions from the escrow account, the account number of the mortgage to be assumed, the balance required for closing and other information related to closing. Mary Cluett testified that these were delivered to Mrs. Lockner's house and copies were sent to the Darrs at the New York Avenue address as she did not know the Darr's apartment address. Pamela Darr denies receiving any of these notices. Beverly Lockner said she received only the one dated May 6th. (testimony of Beverly Lockner, P. 9) Ernest Cluett testified that the notice dated May 6, 1985 was delivered on that same date.(tr- 101) By then the second payment from the escrow account had already been made. From the testimony and evidence it is apparent that considerable confusion existed regarding the Darr/Lockner transaction. Both buyer and seller thought the deal would close on March 14th. They learned that day that it would not close and hasty arrangements were made for the Lockners to occupy the house since they had moved their belongings from Baltimore. No firm financial arrangements were made, other than an oral agreement for the Lockners to pay a pro-rated rent for the remainder of March. The closing did not take place on April 1st or the several subsequent dates that it was set, until June 10th. Meanwhile, the mortgage payments were due and no arrangements had been made for their payment. Mary Cluett prepared the March 14th form to satisfy Pamela Darr that the payments would be made, but neglected to clear the arrangement with Beverly Lockner. Mrs. Lockner figured the payments were not her responsibility because the house was not hers; the failure to close as scheduled on March 14th was not her fault. She blamed Mary Cluett for not notifying the parties sooner since she would not have left Baltimore. (testimony of Beverly Lockner, pp. 18-22)
Findings Of Fact At all times material to this case, Respondent, Antonio Prado, has been a licensed real estate broker in the State of Florida, license no. 0138312. Respondent, Antonio Prado, is the President and qualifying broker for a real estate company called Bayside International Realty, Inc. Respondent, Bayside International Realty, Inc., has been issued real estate license no. 1001760. The Department is the state agency charged with the responsibility of regulating real estate licensees. On January 13, 1995, an investigator employed by the Department conducted an office inspection and audit of the Respondents' place of business. During the course of the audit, the investigator discovered that the escrow account for the business contained $1,000.00. None of the $1,000.00 was, in fact, "trust funds" owed or belonging to a third party as Respondents have not held "trust funds" since August, 1990. The investigator advised Respondent that he was not allowed to hold personal funds in excess of $200.00 in the company escrow account. Based upon that information, Respondent immediately, on January 13, 1995, removed $800.00 from the escrow account leaving a balance of $200.00. The purpose of holding $1,000.00 in the account related to a Barnett Bank policy which required the minimum balance of $1,000.00 to avoid service charges on the account. Respondent, Antonio Prado, has not been active in the real estate practice for several years and was unaware of changes to the escrow policy dating back to December, 1991, which prohibit more than $200.00 of personal funds in an escrow account. Respondent, Antonio Prado, has been licensed for 19 years and has never been disciplined for any violations of the real estate law.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Real Estate Commission enter a final order determining the Respondent, Antonio Prado, committed only a minor technical violation of Section 425.25(1)(e), Florida Statutes, and, in recognition of Respondent's exemplary record as a broker, which, along with his willing, immediate action to correct the error, demonstrates sound judgment, issue a letter of reprimand and guidance regarding escrow account rules and regulations. All other allegations against these Respondents should be dismissed. DONE AND ENTERED this 15th day of May, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 15th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0038 Rulings on the proposed findings of fact submitted by Petitioner: None submitted. Rulings on the proposed findings of fact submitted by Respondent: Paragraphs 1 and 2 are rejected as statements of fact as they are restatement of argument or comment made at the hearing. Paragraphs 3 through 6 are accepted. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Theodore R. Gay Senior Attorney Department of Business and Professional Regulation Division of Real Estate Rhode Building Phase II 401 Northwest Second Avenue N607 Miami, Florida 33128 Antonio Prado, pro se and as President of Bayside International Realty, Inc. 1390 Brickell Avenue, Suite 230 Miami, Florida 33131
The Issue Whether Michael Jacob Piwko (Respondent), committed the violations alleged in the Administrative Complaint dated December 15, 2009, and, if so, what penalties should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida created by Section 20.165, Florida Statutes. Petitioner is charged with the responsibility of regulating the real estate industry in Florida pursuant to Chapters 455 and 475, Florida Statutes. As such, Petitioner is fully authorized to prosecute disciplinary cases against real estate licensees. Respondent was at the times material to this matter, the holder of a Florida real estate associate license, license number 707518, issued by Petitioner. As last known, Respondent was an active sales associate with All Star Investment Realty, Inc., 9425 Sunset Drive #180, Miami, Florida 33173. From January 2008 through May 2008, Respondent was employed as a sales associate with Enrique Piwko, the qualifying broker for All Star Investment Realty, Inc. In January of 2008, Joaquin Inigo, a buyer, sought to purchase a condominium in Tampa, Florida. He gave Respondent a deposit for the purchase, but was later advised the deal had “fallen through.” On or about May 17, 2008, Mr. Inigo executed a contract for purchase and sale seeking to acquire a second condominium, unit number 208, at 310 Crestwood Circle, Royal Palm Beach, Florida 33411. As part of the transactions with Respondent, Mr. Inigo tendered approximately $77,000.00 to Respondent to be applied to the purchase price of unit 208. Monies were tendered to Respondent directly because Mr. Inigo expected Respondent to get an employee discount related to the sale and pass that on to him. The closing date in July passed without unit 208 being conveyed to Mr. Inigo. Efforts to achieve a refund of the deposit monies were fruitless. Upon investigation of the matter, Petitioner discovered that Respondent never deposited Mr. Inigo’s funds in escrow with his broker. Petitioner did not negotiate the purchase of unit 208. Petitioner did not refund the deposit monies. All monies provided by Mr. Inigo to Respondent were for the purchase of unit 208 and were not a personal loan to Respondent. Respondent asserted in pleadings that the monies from Mr. Inigo were a personal loan. Respondent did not, however, present written evidence of the alleged loan or its terms and declined to respond to the investigatory efforts made by Petitioner. Petitioner did not present evidence regarding the cost of investigating this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Respondent in violation of the provisions of law set forth in the Administrative Complaint as alleged by Petitioner, imposing an administrative fine in the amount of $2,000.00, and imposing a suspension of Respondent’s real estate license for a period of five years. DONE AND ENTERED this 18th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 18th day of June, 2010. COPIES FURNISHED: Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Heather A. Rutecki, Esquire Rutecki & Associates, P.A. Bank of America Tower 100 Southeast Second Street, Suite 4600 Miami, Florida 33131 Roger P. Enzor, Chair Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, N801 Orlando, Florida 32801 Thomas W. O’Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, N801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact In November, 1972 Coastal Warehouse, a partnership, entered into a lease with Ray Industries for the rental of their property by Ray Industries. The lease provided that rental payments be made through Peerless Realty Company and also provided for renewal from year to year. The renewal clause was exercise by the lessee. By verbal agreement the lessor agreed to pay Peerless 10 percent of the lease for managing the property, supervising repairs, collecting rent, etc. Peerless' check for December, 1973 rent was forwarded to lessor on January 16, 1974 with a note on the letter (Exhibit 5) indicating payment was delayed due to late receipt of payment from lessee. Peerless' letter of February 26, 1974 (Exhibit 6) forwarded rent payment for January. Therein it was noted that on 4-24-74 lessor received a check for February and March rent and on 6-18-74 it received a check for April and May rent. This was the last rent check lessor received from Respondent. Upon inquiry to Respondent Sakson the lessor was advised that lessees were having problems meeting their rental payments. Upon inquiring of the tenants the lessor was advised that they had always made payments to Peerless when due. When no further payments were received through September, lessor instituted civil action against Respondents herein for the rental payments not received. On January 3, 1975 a final judgment was entered against Respondents in the amount of $3816.86 plus costs of $31.00 (Exhibit 8). To date judgment has not been satisfied. Exhibits 9 through 13, copies of checks payable to Peerless, show that lessee made timely rental payments in June, July, August, September, and October, 1974. None of these payments were forwarded to the lessor and the judgment represents four of these monthly payments. On December 14, 1973, a contract for the sale of property was negotiated by a salesperson in Peerless' office and a $2000 earnest money deposit was received and deposited in Peerless Escrow Account. Due to default on the part of the buyer the transaction never closed and the buyer forfeited his deposit. By letter dated July 1, 1974 (Exhibit 16) Respondents notified the saleswoman Ms. Holly,nee Caspers, that the sale may not close, and if not, she would be entitled to $500 commission. Enclosed with letter dated 7-16-75 (Exhibit 17) Ms. Caspers received a check from Respondents on the Merritt Island Bank in the amount of $500 which she deposited at her bank in Hallandale. The check was returned by her bank steeped "Account Closed" (Exhibit 18) and her account was debited the amount of the check (Exhibit 19). In December, 1974 property listed with Peerless was sold by another realty office. The purchaser desired a survey on the property at no expense to her. The salesman (Sutton) who negotiated the contract discussed the survey with Sakson and as a result understood that the cost of the survey would be split between the seller and the two real estate firms involved. The survey was commissioned by Sutton for $100. Upon receipt of the bill he forwarded the bill with his check in the amount of $25 to Peerless. He subsequently learned from the seller that the latter never agreed to pay part of the cost of the survey. Sutton was later told by Sakson that the cost of the survey had been paid. When the surveyor demanded payment from Sakson the latter said he would mail the check but never did so and discouraged the surveyer from coming by the office to pick up the check when he volunteered to do so. Merritt Island Development Corporation, a Miami based company owned rental property on Merritt Island for which Peerless was engaged to act as rental agent, collect rent, and generally supervise property. There were two tenants of the building viz. Foam King and Atlantic Screen, each of whom made the rental payments promptly during the months of January, February and March, 1974. These checks were deposited in Peerless Realty Escrow Account. In May, 1974 Respondent forwarded to lessor a check in the amount of $1876.90 representing these three months rent from the two tenants. When this check was presented for payment it was dishonored. The check was thereafter twice redeposited upon the advice of Sakson that it would clear and each time it was dishonored. Sakson advised lessor several times that he would make the check good, but did not do so. On October 11, 1974 Merritt Island Development Corporation obtained a judgment against Peerless (Exhibit 32) in the amount of the check plus cost. This judgment was subsequently satisfied. In the interim the lessor contacted the tenant and requested payment be made direct to the Miami office which request was honored and lessor no longer engaged Peerless as rental agent. In contract dated April 2, 1974, Jean Berkowitz presented a $10,000 check payable to Peerless Realty Company Escrow Account as an earnest money deposit on the property subject to the contract. The contract provided closing within 30 days of acceptance. The listing broker on this contract was Anderson Realty and the selling broker was Peerless. At the request of the buyer the closing date was extended one or two times. By letter of September 12, 1974 the attorney for seller advised buyer that on September 20, 1974 the buyer would tender deed and expected purchaser to be at the closing with sufficient funds to meet the obligations of the contract. At this closing neither the buyer nor Sakson appeared. By letter dated September 20, 1974 (Exhibit 39) the attorney for seller advised the attorney for buyer that an extension of the contract would be granted until October 7, 1974 on the basis of the buyer making an additional deposit of $2,500 with the entire deposit of $12,500 paid to seller and non- refundable if contract did not close for any reason other than the fault of the seller. Peerless issued check dated 9-20-74 in the amount of $2,500 to seller. When presented for collection this check was dishonored. Subsequent thereto Sakson presented a cashier's check and another check totaling $2,500 to seller which were honored. When the October 16, 1974 closing date arrived the buyer did not appear. By letter of October 24, 1974 the attorney for buyer advised Respondent that the contract had been terminated by reason of failure of the buyer to carry out the terms of the contract and demanded payment of the seller's share of the $10,000 deposit, $4,687.50. This sum was never disbursed by Respondent to the seller.
The Issue The issues to be determined are whether Respondent violated sections 475.25(1)(e), 475.42(1)(b), and 475.42(1)(d), Florida Statutes (2011), and Florida Administrative Code Rule 61J2- 14.009, as alleged in the Administrative Complaint, and, if so, what penalty should be imposed?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of the real estate industry in the state of Florida, pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate having been issued license number 3101946. During the time relevant to this case, Respondent was a sales associate affiliated with Bahia Real Estate ("Bahia"), a brokerage company owned by Raul and Ricardo Aleman, with offices located in Miami, Orlando, and Tampa, Florida. Respondent was employed in Bahia's Miami location. In 2010, Respondent acted as a sales associate on behalf of Michael Perricone for a real estate transaction involving the purchase of a condominium in the Blue Lagoon Towers ("Blue Lagoon") in Miami which was purchased as an investment. Mr. Perricone's sister, Francesca Palmeri, and her husband, Santo Palmeri, were present at the closing where they met Respondent for the first and only time. During the closing, which lasted approximately one hour, the Palmeris indicated to Respondent that they would be interested in making a similar purchase of investment property if another comparable condominium unit became available at Blue Lagoon. The Palmeris had no further interaction with Respondent until he contacted them at their home in Pueblo, Colorado, in 2011 to advise them of the availability of a condominium for sale at Blue Lagoon. On or about October 6, 2011, Respondent faxed a partially completed Bahia form "'AS IS' Residential Contract for Sale and Purchase" to Mrs. Palmeri for the Palmeris to use in making an offer on a condominium unit located at 5077 Northwest Seventh Street, Miami, Florida. Prior to forwarding the document to Mrs. Palmeri, Respondent wrote on the form the property description, the escrow agent name and address, the initial escrow deposit amount and additional deposit, the time for acceptance, the closing date, and listed himself as the "Cooperating Sales Associate" with "Bahia Realty Group, LLC." The Palmeris decided to offer a $125,000.00 purchase price. Respondent directed Mrs. Palmeri to complete the contract and provide a ten percent escrow deposit. Mrs. Palmeri entered a purchase price of $125,000.00, initialed each page, and signed the form as "Buyer." Respondent provided Mrs. Palmeri with instructions on how to wire the funds for the escrow deposit. On October 7, 2011, Mr. Palmeri wired $12,000.00 to J.P. Morgan Chase, which was then deposited in an account for Bonaventure Enterprises, LLC ("Bonaventure").1/ The Palmeris had no knowledge of Bonaventure, but, based upon the representations of Respondent, they understood the money they were asked to wire to the J.P. Morgan Chase account of Bonaventure was an escrow deposit for the property they intended to purchase at Blue Lagoon. The Palmeris had no discussion with Respondent regarding the reason for sending the escrow deposit to Bonaventure. They assumed that Bonaventure was somehow related to the seller or its title company. The condominium unit in question was bank owned; however, the Palmeris were not informed of this. No evidence was presented that Respondent had an ownership interest in Bonaventure. However, Bonaventure is owned by Respondent's brother and sister-in-law. At all times material hereto, Respondent was the managing member of Bonaventure. Bonaventure is not a licensed real estate broker. Bahia does not maintain an escrow account, and its sales associates are authorized to use title companies of their choice for receipt of escrow deposits. Respondent was aware that he was unable to accept the escrow deposit of the Palmeris in his own name, because, as a licensed real estate sales associate, he is prohibited from receiving the money associated with a real estate transaction in the name of anyone other than his broker or employer. In fact, Respondent was disciplined in 2010 for a similar violation.2/ Respondent claims that the Palmeris entrusted him with their $12,000.00 to hold for possible investments, not necessarily related to real estate transaction, and he was doing it as a favor for them as "friends." Respondent contradicted himself by stating his intention in directing the Palmeris to deposit their money into the Bonaventure account was to help them have cash on hand in Florida in order to meet the Blue Lagoon condominium seller's requirements to make the escrow deposit with the seller's title company within 24 hours after an offer was accepted. The Palmeris had no knowledge of the seller's unique restrictions on the escrow money. Further, Respondent's asserted motive in requesting the $12,000.00 to have cash on hand in Florida is undermined by the fact that, if the Palmeris could wire $12,000.00 to Bonaventure's bank account, they could also wire the funds directly to a title company chosen by the selling bank after acceptance of their offer. Shortly after returning the contract to Respondent and sending the escrow deposit, Mrs. Palmeri discussed increasing the purchase price by $1,000.00 for a total of $126,000.00. Based upon the language of the proposed contract, the Palmeris expected a response to their offer within 24 hours. Immediately thereafter, Respondent told the Palmeris that they were "in negotiations." However, almost a month passed before they heard from Respondent regarding the status of the purchase of the condominium. On or about November 4, 2011, Respondent contacted Mrs. Palmeri and stated that he had "good news." He indicated that the seller would be willing to sell the property for a price of $129,500.00. According to Respondent, the seller requested documentation from the Palmeris' bank indicating their ability to pay. Mrs. Palmeri indicated that this was not an acceptable counter-offer. Respondent suggested that he could negotiate a sales price of $129,000.00, but he needed the Palmeris to send an additional $9,000.00 to put into escrow. Mrs. Palmeri told Respondent that she was no longer interested in the property because their maximum offer was $126,000.00. During the same conversation, Mrs. Palmeri asked for the return of her deposit. Respondent expressed agitation that she was retreating from the possible purchase because he had done "so much work." Respondent clearly anticipated he would receive a commission if the deal was consummated. The Palmeris did not get an immediate return of their escrow deposit. Mrs. Palmeri called Respondent repeatedly and received no answer. She also sent an e-mail to J.P. Morgan Chase trying to find out the status of the deposit and received no reply. Mrs. Palmeri again attempted to contact Respondent on November 18, 2011, and left him a message that he needed to call her regarding the deposit. After receiving no response, she contacted Bahia and spoke with Ricardo Aleman. Mrs. Palmeri explained to Aleman that she had signed a real estate contract with Respondent on October 6, 2011. She no longer wanted to pursue this real estate transaction and wanted the escrow deposit returned. Aleman was unaware that Respondent was negotiating a real estate transaction for the Palmeris or had accepted their deposit money. Aleman contacted Respondent who confirmed by email that the Palmeris were no longer interested in purchasing the condominium at Blue Lagoon. Respondent wrote, "After a month of hard work . . . the client decided to drop. It was a little bit problematic. I lost time and money because the offer was already accepted and she had no reason to negotiate." Respondent assured Aleman he would return the deposit to the Palmeris. In accordance with Bahia's policies and procedures, its sales associates are required to complete a deposit form at the time of receipt of funds for escrow. No such receipt was received by Bahia from Respondent with regard to the transaction involving the Palmeris. However, it was not unusual for Bahia not to receive information regarding real estate transactions conducted by their sales associates until the time of closing. After discussing the matter with Aleman, Respondent advised the Palmeris that he could return their money within ten days. Respondent advised Mrs. Palmeri that he would send her two checks for the total amount--one check which she could cash immediately and a second check which would be postdated. In order to get a return of their deposit, Mrs. Palmeri agreed. On or about November 28, 2011, the Palmeris received two checks, each in the amount of $6,000.00, including one postdated for December 16, 2011. These checks were written on the account of Bonaventure and signed by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order imposing on Alfonso Miranda an administrative fine in the amount of $6,000.00 and suspending the real estate sales associate license of Alfonso Miranda for a period of two years. DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 2nd day of April, 2014.
Findings Of Fact The Respondent, David William Houser, at times pertinent hereto, was a licensed real estate salesman registered in the employ of Alfred H. Trafford, Trafford Realty Company, a licensed real estate broker. The Petitioner is an agency of the State of Florida charged with licensing, regulating the licensure status of realtors and enforcing the disciplinary provisions of Chapter 475, Florida Statutes. The Respondent has been a licensed real estate salesman since 1975, and he has been registered with the above-named broker for seven years prior to June, 1983. In February, 1983, the Respondent, on behalf of a client, Mr. Robert Carroll, began attempting to locate commercial property in the Cocoa, Florida area for purchase by Mr. Carroll. Through contacts with the Respondent at his place of business at Trafford Company, and through information received in conversations with the Respondent, Mr. Carroll became immediately aware that the Respondent was an employee of Trafford Realty Company. Mr. Trafford, the broker, knew that the Respondent was attempting to locate commercial property for Mr. Carroll and Mr. Trafford assisted, advised and discussed the search for property with the Respondent, conferring with the Respondent as to available commercial properties that might be suitable for Mr. Carroll's purposes. Respondent located a parcel of property on Clearlake Road in Cocoa which was initially acceptable to Mr. Carroll. The property was not listed at the time with Trafford Realty Company. The Respondent prepared a contract (offer to purchase) which was executed by Mr. Carroll as buyer. At the time Carroll executed the offer to purchase, he gave the Respondent an earnest money deposit check in the amount of $1,000 payable to Trafford Realty Company, at the Respondent's behest. At all times relevant to this administrative complaint, Trafford Realty Company had a policy id procedure for processing of real estate sales contracts which provided that earnest money was to be deposited in the company's escrow account. The procedure required that the earnest money check and a copy of the contract be delivered by the employee who obtained the contract and check to Trafford Realty Company's general sales manager. The general sales manager was responsible for preparation of an escrow file card and for deposition of the check into the company's escrow account. After obtaining the contract for the Clearlake Road property signed by Mr. Carroll, the Respondent submitted the deposit check and a copy of the contract to the sales manager, in accordance with the company's established policy. The owner of the Clearlake Road property thereafter rejected the contract and the Respondent thereupon continued his search for commercial property satisfactory to Mr. Carroll. Shortly thereafter, the Respondent located another piece of commercial property on Fiske Boulevard in Cocoa, Florida. This property was the subject of an "open listing" of Trafford Realty Company at the time. The Respondent contacted a fellow salesman of his company, Eileen Bleyer, who held the actual listing on the Fiske Boulevard property. The Respondent told that salesman that he had a potential buyer for the property and asked her to arrange for an appointment with the owner to inspect it. This salesman, Mrs. Bleyer, knew that the Respondent was at the time employed by Trafford Realty Company just as she was, and she called the owner and scheduled an appointment for a Sunday afternoon in February, 1983. The Respondent and Mr. Carroll inspected the property that afternoon in the presence of the owner, Linda Cooper, and her agent, Tom Loomis. The Respondent informed Mr. Loomis that he was a salesman for Trafford Realty Company. The Respondent also gave Mr. Loomis his business card with the name Trafford Realty depicted thereon. The Respondent ultimately negotiated a contract price for the property, on behalf of Mr. Carroll, with Mr. Loomis. Since the owner did not want to pay a real estate sales commission, the contract did not provide for the commission to be paid by the seller. Instead, Mr. Carroll, the buyer, agreed to pay a commission of $2,500. The contract provided that the $1,000 earnest money check from Mr. Carroll would be delivered to a title company which would handle the transaction. Trafford Realty Company had no requirement that its salesmen have contracts reviewed by the broker before, during or after they were negotiated and executed. Neither did Trafford Realty Company have any procedures for its salesmen to report contracts to the broker which did not contain a provision for depositing earnest money in the Trafford Realty Company escrow account. In any event, at a regularly scheduled, weekly commercial sales meeting of Trafford Realty Company employees, the Respondent informed Mr. Trafford, his broker, that the Fiske Boulevard property had been sold. Further, on at least two occasions, Mr. Carroll's son left messages with Trafford Realty's receptionist when he or his father attempted to contact the Respondent concerning the status of the contract. Thus, they clearly knew that the Respondent was representing them under the auspices of Trafford Realty Company, rather than on his own. Additionally, after the contract was signed, the Respondent contacted the city of Cocoa to determine the type of zoning applicable to the property and, at his behest, the City Zoning Department personnel responded in writing to the Respondent in care of Trafford Realty Company. In any event, at the closing of the transaction, Mr. Carroll refused to pay the full commission of $2,500 and indeed, never has paid any of the commission, such that the Respondent could remit all or any portion of it over to his broker or Trafford Realty Company. The Respondent intended to remit to Trafford Realty Company the entire real estate sales commission after he received it from Mr. Carroll at the closing or thereafter. Mr. Carroll simply never paid any of the commission he was obligated to pay. Further, on instructions from Mr. Carroll, a mortgagor who owed Mr. Carroll a mortgage payment regarding certain property he was purchasing, delivered a $2,000 check payable to Mr. Carroll to the Respondent. The Respondent, however, delivered that check, unnegotiated to Mr. Carroll's attorney and obtained a receipt for it. Later that same day, Mr. Carroll's attorney called the Respondent and informed him that he could expect to receive his real estate commission the following week. During that conversation, the Respondent informed Mr. Carroll's attorney that any monies he received were to be turned over to Trafford Realty Company and he wrote a contemporaneous memorandum reiterating that statement. Since Mr. Carroll has not yet paid the real estate sales commission or any part of it, there have never been any monies due Trafford Realty Company which the Respondent had in his possession or control, such that he could misappropriate them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the administrative complaint be DISMISSED in its entirety. DONE and ENTERED this 24th day of October, 1984, in Tallahassee, Florida. P. MICHAEL RUFF, 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 24th day of October, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Rodney L. Russell, Esquire 415 North Magnolia Avenue Post Office Box 886 Orlando, Florida 32802 Harold Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact During all times material to the Complaint Respondent Genaro O. DiDiego was licensed as a real estate broker under Chapter 475, Florida Statutes. From May 1, 1976 until February 7, 1977, Mr. DiDiego did business under the trade name "Lauderdale Realty" in the Miami Beach Area. In the spring of 1976 Ms. Arlene Channing through a salesman, Anita Kandel, employed by Lauderdale Realty met the Respondent. Ms. Channing was naive about the real estate business and any related transactions. After their initial meeting the Respondent attempted to interest Ms. Channing in a variety of business ventures. Eventually she became involved in two. One was the Choice Chemical Company loan and the other was the Qualk Building purchase. On May 10, 1976, Ms. Channing loaned Mr. DiDiego $30,000.00 for his purchase of stock in the Choice Chemical Company. This loan was to be secured by a note and mortgage from Mr. DiDiego to Ms. Channing in the principal sum of $30,000.00 with interest at 10 percent until the principal was paid. The note and mortgage were due and payable within 18 months. Specifically, the security was 50 percent of the outstanding stock of Choice Chemical Corporation and also Lauderdale Realty's lots and telephone land operation. The security was to be held in escrow by Gerald S. Berkell, who at that time was counsel to Mr. DiDiego. In fact no such security was ever delivered into escrow. From the facts and circumstances of the transactions between Ms. Channing and Mr. DiDiego, it is found that Mr. DiDiego never intended to secure the $30,000.00 loan. That security was a material inducement to Ms. Channing for the loan. The principal sum of the loan, $30,000.00, was deposited into the account of Lauderdale Realty, account number 60-943-7 at County National Bank of North Miami Beach. Subsequently on April 18, 1978, Ms. Channing filed an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, against Mr. DiDiego for the unlawful conversion of her $30,000.00. On June 19, 1978, a final judgement by default was entered against Mr. DiDiego in the amount of $30,000.00 plus legal interest. The Qualk Building purchase concerned a building represented to Ms. Channing to cost $700,000.00. Mr. DiDiego induced her to invest $150,000.00 in the purchase of the Qualk Building. To effect the purchase, Mr. DiDiego and Ms. Channing entered into a limited partnership agreement in which Mr. DiDiego would be the general partner, investing $1,000.00 and Ms. Channing would be a limited partner, investing $150,000.00. Subsequently Ms. Channing deposited $150,000.00 into the Lauderdale Realty escrow account. Her check dated June 18, 1976, in the amount of $150,000.00 was deposited in Account number 60-944-8 for Lauderdale Realty. In fact, the total purchase price for the Qualk building was $585,000.00. The building was however encumbered by first and second mortgages totaling $535,855.90. The total amount therefore required to close was less than $33,000.00. These facts were known to Respondent but were not disclosed to Ms. Channing. From the facts and circumstances of this transaction, it is found that the facts were misrepresented to Ms. Channing for the purpose of inducing her to part with her $150,000.00. Ms. Channing never received any accounting for her investment and she subsequently brought an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. On July 8, 1977, final judgment was entered against Respondent, Genaro O. DiDiego in the amount of $150,000.00 less $32,662.84, which were actually applied to the purchase price of the Qualk building, and less $9,780.00 which represents a portion of the income of the Qualk Building paid by Respondent to Ms. Channing. In entering its final judgment, the Court found that Respondent breached His fiduciary duty to Ms. Channing. This judgment has never been satisfied.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the license of Genaro O. DiDiego as a real estate broker be revoked by the Board of Real Estate, Department of Professional Regulation. DONE and RECOMMENDED this 3rd day of November, 1980, in Tallahassee, Florida. MICHAEL P. DODSON 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 3rd day of November, 1980. COPIES FURNISHED: Tina Hipple, Esquire Staff Attorney Department of Professional Regulation 2009 Apalachee parkway Tallahassee, Florida 32301 C. B. Stafford Board Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Genaro O. DiDiego 3745 N.E. 171st Street North Miami Beach, Florida 33160
Findings Of Fact The Respondent, Larry C. Griggs, is licensed as a certified general contractor, holding license number CG C001910. During the years 1979, 1980 and 1981 the Respondent was president of Kramer Homes, Inc., and in this capacity he acted as contractor for the construction of a project in Dade County known as Woods Landing. Kramer Homes, Inc., entered into subcontracts in connection with the Woods Landing project, and listed itself as contractor on these subcontracts. Kramer Homes, Inc., also caused the notice of commencement to be published, and it obtained the construction loan and paid some of the bills incurred. The Respondent, however, failed to qualify Kramer Homes, Inc., with the Construction Industry Licensing Board. The Respondent admitted the above facts, but explained that he had no intent to violate the construction industry licensing law. He asserts that he was confused as to the proper practice because he owned and operated both Kramer Homes, Inc., and his other corporation, Larry C. Griggs, Inc., which he did qualify. During the course of the Woods Landing project, funding problems developed which resulted in the failure of the Respondent to pay 16 creditors for materials furnished or services performed at Woods Landing when payment was due. Subsequently however, the Respondent has caused payment to be made, or has made arrangements for payment, to all such creditors except for five. The creditors remaining unpaid are Miami Comfort Air, Style Light, Inc., Gem Cabinet Company of Miami, Inc., World Tile Company, and Dixie Clamp and Scaffold, Inc. On approximately September 11, 1981, the Respondent issued a check on a Woods Landing account, payable to Miami Comfort Air, in the amount of $5,000. Previously, on July 31, 1981, the Respondent had acknowledged the debt due Miami Comfort Air, and had made arrangements to pay $8,000 by September 1, 1981. The check for $5,000 was in partial payment of the total debt. The check for $5,000 issued by the Respondent on September 11, 1981, to Miami Comfort Air was returned unpaid by the bank marked not sufficient funds. When the Respondent learned that this check had not been paid, he failed to make it good or to make suitable arrangements for payment of the amount due Miami Comfort Air. The Respondent contends that be believed that there were sufficient funds in his account when he issued the $5,000 check to Miami Comfort Air. He explained that his bank, County National Bank of South Florida, became insecure with the financial aspects connected with the Woods Landing project, and withdrew interest from his account without advising the Respondent, at or about the time he issued the check to Miami Comfort Air. He asserts that it is his intention to pay all of the creditors of this project, and he established his payment record of the creditors who had been paid as of the date of the hearing. Miami Comfort Air has reduced its claim against the Respondent to judgment which the Respondent has not paid, but has elected to appeal, although he did not appear in court to defend the claim when suit was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Larry C. Griggs, be found guilty of violating Sections 489.129(1)(d), (g), (j) and Section 489.129(1)(c) to wit Section 455.227(1)(a), Florida Statutes, and that he be assessed an administrative fine of $250 on Count 1, $100 on Count 11 and $1,000 on Count 111, for a total fine of $1,350. THIS RECOMMENDED ORDER entered on this the 24th day of January, 1983. WILLIAM B. THOMAS, 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 24th day of January, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Blvd. Fort Lauderdale, Florida 33306 James L. Wall, Jr., Esquire 407 Lincoln Road Miami Beach, Florida 33139 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact At all times here involved Theodore R. Johnson was a registered real estate salesman and managed the UFA office at DeLand, Florida. He has been a registered real estate salesman for more than 30 years. He was authorized to sign checks on the escrow account of UFA in DeLand. At all times here involved Roy Edwin Schaefer was a registered real estate salesman and an associate of Johnson at DeLand. At all times here involved Richard W. Goddard was a registered real estate broker and officer and Active Firm Member in UFA with offices in Orlando, Florida. He was the broker under whom Johnson and Schaefer worked. He supervises some 20 UFA branch offices in Florida north of Orlando. He visits the branch offices at frequent intervals (once or twice a week) and exercises general supervision over these offices headed by a salesman. At all times here involved United Farm Agency, Inc. was a corporate registered real estate broker and maintained a district office in Orlando, Florida. The practice of UFA, which was in existence in 1971 to allow salesmen who head branch offices to disburse funds from their escrow account, has been changed. Now the signature of the broker is also required before funds can be disbursed from the escrow account. On August 15, 1970 Schaefer obtained a listing agreement for UFA on property owned by Prentice L. and Vivian Glasgow in Pierson, Florida. This listing agreement provided, inter alia, that in the event there is a forfeiture of funds deposited, 1/3 of such forfeited funds would go to the seller and the balance paid to UFA as commission. By Deposit Receipt and Agreement for Sale dated July 9, 1971 (Exhibit 7) one Margaret C. Lord offered to buy the Glasgow property at the asking price and Glasgow accepted. Schaefer procured the buyer and the contract was drawn up in the UFA branch office in DeLand, apparently by Johnson and/or his secretary of some 30 years. During Schaefer's discussion with Mrs. Lord at her motel immediately prior to the drafting of the contract he observed some $4000 in cash she was carrying in her purse. At the time Lord signed the contract she put up $1500 by check and stated she would have an additional $6000 transferred to her account by her broker and would present the additional $6000 within two or three days. No one who participated in the preparation of the sales agreement doubted her intention and ability to produce the additional earnest money deposit. The contract and the $1500 deposit check was held by Johnson for several days and when the additional deposit promised by the buyer was not forthcoming Johnson deposited the $1500 in the UFA escrow account and forwarded a report of sale to UFA (Exhibit 14). By acknowledgment of sale letter dated July 20, 1971, UFA acknowledged Johnson's report of sale and a $7500 deposit. The contract provided buyer could take possession of the property July 17, 1971 and closing was set for October 11, 1971. Neither Johnson nor Schaefer were able to again contact Mrs. Lord. Shortly after the contract was executed the Glasgows were advised that only $1500 had been deposited. After Johnson had been unable to contact Mrs. Lord he advised Goddard that only $1500 had been deposited, and by memo dated October 18, 1971 (Exhibit 19) Goddard advised UFA's home office. The Glasgows were in the process of getting a divorce and Glasgow was anxious to consummate the sale. After checking several times with Johnson about the closing, Glasgow advised Johnson he needed money to move off the property (Glasgow's testimony) or that he needed money in connection with his divorce (Johnson's testimony). Early in the morning on August 25, 1971 Glasgow made an urgent request to Johnson for funds and Johnson wrote Glasgow a check for $500 on the escrow account because he, Johnson, did not have a personal check available at the time. The same morning Johnson obtained $500 from his wife and deposited this money in the escrow account. The escrow account was credited with $500 on August 25, 1971 and debited with $500 on August 31, 1971 when the check issued to Glasgow cleared. Johnson's testimony that he considered the $500 a personal loan to Glasgow was unrebutted and is supported by his deposit of a like sum in the escrow account as soon as the bank opened. Shortly after the contract was executed, but before the $1500 check was deposited, Schaefer, without Johnson's knowledge, delivered a copy of the contract to Glasgow. The contract provided, inter alia, that if either the seller or the buyer fails to perform his part of the agreement he will forthwith pay as liquidated damages to the other party a sum equal to 10 percent of the agreed price of sale. When Johnson's efforts to locate Mrs. Lord were unsuccessful and no response received to letters of August 28 and October 4, 1971, Johnson disbursed the balance of the funds in the escrow account on October 18, 1971. One check in the amount of $250 he paid to himself as reimbursement for his expenses in attempting to locate Mrs. Lord. The remaining $750 ($500 of the $1500 had already been given to Glasgow, but how the cash deposit of $500 made August 15 was withdrawn from the escrow account was not explained) was split between Johnson and UFA. After the transaction fell through Glasgow moved back on his property. By letter dated October 20, 1972 (Exhibit 8) Glasgow filed a complaint with the Florida Real Estate Commission in which he referred to the liquidated damages provision of the contract (10 percent of purchase price) and the $7500 down payment which he alleged UFA had in escrow and had not paid to him. The investigation followed which led to the complaint filed herein.
Findings Of Fact Application for registration as dealer was filed by the Financial marketing Group, Inc., in the person of M. L. Popkin, President and Milton A. Fried, Secretary for that corporation, on June 30, 1975. This information is reflected in the Petitioners' Exhibit 1, which was accepted into evidence in the course of the hearing. On that same date, Marvin Leo Popkin filed a request for registration as executive officer for the Financial Marketing Group, Inc., and this information is reflected in Petitioners' Exhibit 1(A), which was received into evidence in the course of the hearing. The matters set forth in Petitioners' Exhibits 1 and 1(A) are on file with the Respondent, Department of Banking and Finance, Division of Securities. The principal contention offered by the Respondent in refusing the application of the Financial Marketing Group, Inc., for registration as a dealer in securities, is due to the answers given by Marvin Leo Popkin in completing the Petitioners' Exhibit 1(A). Specifically the basis for denial would refer to question 12, found in Petitioners' Exhibit 1(A). That question is as follows: "12. List on a separate schedule your employment history, giving positions held, dates employed, dates terminated, and reasons for leaving each position so listed. (All times must be accounted for.) To the question 12, Marvin Leo Popkin attached an addendum to the application for registration as dealer and in that addendum question 12 was answered as follows: "12. 6/1/73 - Present - Realty Marketing Group, Inc. - President - 5040 Lakeview Drive, Miami Beach, Florida 33140 7/1/69-6/1/73 - Florida Development & Sales Corp. - President - 1666 Kennedy Causeway, Miami Beach, Florida 10/1/68 - 7/1/69 - Registered Realty Corp. - Salesman 8403 N.E. Second Avenue, Miami, Florida 1/1/68 - 10/1/68 - Miami Beach Vacations, Inc. - Salesman - 3001 Collins Avenue, Miami Beach, Florida" The Respondent felt that this answer to number 12 was insufficient, because on January 22, 1975, Marvin L. Popkin had filed an application for reregistration as a mortgage broker before the Department of Banking and Finance, Division of Finance, in which Marvin L. Popkin signed as Vice President of Financial Resources Corporation. Apparently, the Respondent felt that this affiliation referred to in the application for reregistration as a mortgage broker, which matters are found in Petitioners' Exhibit 2, admitted into evidence, was tantamount to an employment of Marvin Leo Popkin by the Financial Resources Corporation. Consequently, the failure of Marvin Leo Popkin to list this employment with the Financial Resources Corporation in response to question 12 of the request for registration as executive officer for the Financial Marketing Group, Inc., was felt to be a materially false statement. Marvin Leo Popkin, through his testimony in the hearing, indicated that the affiliation with the Financial Resources Corporation was a prospective one and not one in actuality. The background of the affiliation of Marvin Leo Popkin with Financial Resources Corporation, according to Mr. Popkin, was that he was approached in behalf of one Sidney Gilbert and Ronald Schaffer about becoming mortgage broker for Financial Resources Corporation, should a purchase of that company be consummated by Messrs. Gilbert and Schaffer. In fact the purchase was never completed because of certain problems associated with Financial Resources Corporation and Marvin Leo Popkin never became a mortgage broker for that company. Moreover, according to Mr. Popkin the basis for the application which is referred to in Petitioners' Exhibit 2, was premised upon the purchase being made by Mr. Gilbert and Mr. Schaffer and agreement for remuneration being made between Marvin Leo Popkin, and the others. The witness indicated that the purchase not being made, no salary was ever agreed upon and furthermore, the witness never did any work for Financial Resources Corporation, nor for that matter ever went to the office location of Financial Resources Corporation. The witness, Popkin, also indicated that signing the application as vice president was strictly prospective, in that he was not in fact at any time the vice president of Financial Resources Corporation. He stated that this signature was a matter of the necessity of signing as an officer, so that compliance with the Division of Finance requirements could be achieved. The title, vice president, was selected because Mr. Gilbert and Mr. Schaffer had tentatively agreed to identify themselves as the president and secretary, of Financial Resources Corporation, should the purchase be completed. Mr. Popkin indicated that a mortgage brokers license was issued by the office of the comptroller, without his knowledge. Mr. Popkin stated that he wrote a letter dated February 28, 1975, indicating to the office of the state comptroller that he was no longer affiliated with Financial Resources Corporation and therefore did not desire the issuance of a mortgage brokers license, in which a transfer of his mortgage brokers license had been made from the Florida Mortgage Group, Inc. to the Financial Resources Corporation. A copy of this correspondence is Petitioner's Exhibit 3, which was admitted into evidence. It is noted that the character of the correspondence, which is Petitioner's Exhibit 3, indicates that the witness, Marvin Leo Popkin, was at the time of the correspondence, a principal broker for the Financial Resources Corporation; however, testimony was not offered in the course of the hearing which would tend to refute the explanation of the prospective nature of Mr. Popkin's association with the Financial Resources Corporation. Consequently, the unrefuted testimony of the witness, Marvin Leo Popkin, concerning the prospective nature of the affiliation with Financial Resources Corporation stands established. On February 28, 1975, Marvin Leo Popkin also wrote a letter to Financial Resources Corporation in which he tendered his resignation as a mortgage broker with their corporation. A copy of this correspondence is Petitioner's Exhibit 4, admitted into evidence. Again the nature of the correspondence is such that it would seem that Marvin Leo Popkin was formally associated with Financial Resources Corporation and comments made about Petitioner's Exhibit 3 would seem to have application here. The witness's explanation offered in the course of the hearing stands without rebuttal and is established as a fact. Subsequent to the time of writing the letters of February 28, 1975, the witness, Marvin Leo Popkin, received a mortgage brokers license issued to Marvin L. Popkin as vice president of Financial Resources Corporation, and in response wrote a letter to the comptroller's office dated March 19, 1975, in which he enclosed the license which had been issued to him as vice president of Financial Resources Corporation. A copy of this correspondence together with the face sheet of the license referred to, is Petitioner's Exhibit 5, which was admitted into evidence. The Respondent did not offer any evidence by way of testimony or documents, in opposition to the explanation of the events, which was set forth by the witness Marvin Leo Popkin. Therefore, it is assumed that the reasons set forth for denial of the application of Financial Marketing Group, Inc., as a registered dealer in securities and for the denial of Marvin Leo Popkin as executive director of the Financial Marketing Group, Inc., stand upon the matters set forth in Petitioner's Exhibits 1 and 1A and that no other explanation for denial under F.S., Sections 517.16(1)(h), 517.30(3), 517.301(3), 517.301(4) and Florida Administrative Rule 3B-305 is forth coming. Consequently, the denial of the Financial Marketing Group, Inc., application for license as a registered dealer in the State of Florida and the denial of Marvin Leo Popkin's request to be executive officer of the Financial Marketing Group, Inc. rests upon an examination of the documents referred to in Petitioner's Exhibits 1, 1A, and 2, together with testimony offered in explanation of those documents. An examination of the Petitioner's Exhibits 1, 1A, and 2 in light of the testimony of Marvin Leo Popkin would indicate that the witness did not knowingly and willfully falsify, conceal or cover up by any trick, scheme, or device, a material fact in filling out the request for registration as executive officer for the Financial Marketing Group, Inc. as set forth in Petitioner's Exhibit 1A, all in violation of F.S., Section 517.301(3). Moreover, it does not appear that the Financial Marketing Group, Inc. through its applicant to be executive officer, Marvin Leo Popkin, has demonstrated an unworthiness to transact the business of a dealer in securities in the State of Florida.
Recommendation It is recommended that the application of the Financial Marketing Group, Inc. to become a registered dealer in securities in the State of Florida be granted and that the request for registration filed by Marvin Leo Popkin to act as executive officer of the Financial Marketing Group, Inc., an applicant for license to be a registered dealer in securities, be granted. DONE and ENTERED this 2nd day of March, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Fred O. Drake, III, Esquire Assistant General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 Paul J. Levine, Esquire Noriega and Bartel P.A. 2100 First Federal Building One Southeast Third Avenue Miami, Florida 33131
