99-000408
Florida Real Estate Commission vs.
Yvonne Joiner Mediate And Royal Realty And Management, Inc.
Status: Closed
Recommended Order on Monday, June 28, 1999.
Recommended Order on Monday, June 28, 1999.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION, )
16DIVISION OF REAL ESTATE, )
21)
22Petitioner, )
24)
25vs. ) Case No. 99-0408
30)
31YVONNE JOINER MEDIATE and )
36ROYAL REALTY & MANAGEMENT, )
41INC., )
43)
44Respondents. )
46_________________________________)
47RECOMMENDED ORDER
49Pursuant to notice, a formal hearing was held in this case
60before Larry J. Sartin, a duly designated Administrative Law
69Judge of the Division of Administrative Hearings, on May 5, 1999,
80in Tallahassee, Florida.
83APPEARANCES
84For Petitioner: Daniel Villazon, Chief Attorney
90Division of Real Estate
94Department of Business and Professional
99Regulation
100Hurston North Tower, Suite N308
105400 West Robinson Street
109Orlando, Florida 3280 1-1772
113For Respondents: No Appearance
117STATEMENT OF THE ISSUE
121The issue in this case is whether Respondents, Yvonne Joiner
131Mediate and Royal Realty Management, Inc., committed the offenses
140alleged in an Administrative Complaint issued against Respondents
148on or about November 18, 1998.
154PRELIMINARY STATEMENT
156On November 18, 1998, the Department of Business and
165Professional Regulation, issued an Administrative Complaint
171alleging that Respondents, Yvonne Joiner Mediate and Royal Realty
180Management, Inc., violated Section 475.25(1)(e), Florida Statutes
187(by failing to institute one of the procedures specified in
197Section 475.25(1)(d)1, Florida Statutes, in violation of Rule
20561J2-10.032(1), Florida Administrative Code), and 475.25(1)(k),
211Florida Statutes. By letter dated January 10, 1999, Ms. Joiner
221disputed the allegations of fact of the Administrative Complaint
230and suggested that the allegations be dropped.
237Although Ms. Joiner did not request a formal administrative
246hearing to contest the allegations of the Administrative
254Complaint, copies of the complaint and the letter were filed with
265the Division of Administrative Hearings on January 28, 1999, by
275Petitioner requesting assignment of the matter to an
283Administrative Law Judge. The matter was assigned to the
292undersigned.
293An Initial Order was entered and mailed to Petitioner and
303Respondents requesting information concerning the scheduling of
310the formal hearing. The Initial Order was mailed to Respondents
320at the address used by Ms. Joiner in her letter of January 10,
3331999. Petitioner responded to the Order. Respondent filed no
342response.
343On March 14, 1999, a Notice of Hearing was entered
353scheduling the hearing to commence at 1:00 p.m. on May 5, 1999.
365The Notice was also sent to Respondents at the address used by
377Ms. Joiner in her letter of January 10, 1999.
386On the date scheduled for the hearing counsel for Petitioner
396appeared. Respondent, however, failed to appear. After waiting
404fifteen minutes for Respondent, the hearing proceeded. At no
413time during or after the hearing did Respondent make an
423appearance or inform the undersigned of any reason for her
433failure to appear.
436Petitioner presented the testimony of Clifford Brown and
444Sidney B. Miller. Petitioner's Exhibits 1 through 4 were
453accepted into evidence.
456A Transcript of the hearing was filed on May 5, 1999.
467Proposed orders were, therefore, due on or before June 1, 1999.
478Petitioner filed a proposed order on June 2, 1999. The proposed
489order has been fully considered in entering this Recommended
498Order.
499FINDINGS OF FACT
5021. Petitioner, the Department of Business and Professional
510Regulation, Division of Real Estate (hereinafter referred to as
519the "Division"), is an agency of the State of Florida. The
531Division is charged with the responsibility for, among other
540things, regulating the practice of persons holding real estate
549brokers' and real estate sales persons' licenses in Florida.
558Section 20.165, and Chapters 455 and 475, Florida Statutes.
5672. Respondent, Yvonne Joiner Mediate, is now, and at all
577times relevant to this matter was, licensed as a real estate
588broker in Florida.
5913. Respondent, Royal Realty & Management, Inc. (hereinafter
599referred to as "Royal Realty"), is now, and at all times relevant
612to this matter was, a corporation registered as a real estate
623broker in Florida. Royal Realty's license number is 0255570.
632Royal Realty's last reported address is 1885 U.S. 19, Post Office
643Box 788, Monticello, Florida 32344.
6484. Until December 31, 1998, Ms. Mediate was the active,
658qualifying broker for, and an officer of, Royal Realty. Since
668December 31, 1998, Ms. Mediate has been an inactive broker.
6785. On or about May 15, 1994, Clifford Brown entered into a
690Contract for Sale and Purchase (hereinafter referred to as the
"700Purchase Contract"), with Ralph and Dawn Chapman, agreeing to
710purchase certain real property from the Chapmans.
7176. Consistent with the Purchase Contract, Mr. Brown
725remitted a $1,000.00 deposit with Ms. Mediate and Royal Realty.
7367. The Purchase Contract was contingent upon Mr. Brown's
745obtaining financing for the balance of the purchase price through
755a third-party loan.
7588. Closing on the Purchase Contract was originally
766scheduled for June 15, 1994. The date for closing was
776subsequently extended to June 30, 1994.
7829. Mr. Brown ultimately failed to obtain the required
791third-party loan. As a consequence, closing on the Purchase
800Contract did not take place.
80510. Even though Mr. Brown had defaulted on the Purchase
815Contract, neither party took any action to cancel the Purchase
825Contract immediately.
82711. In October 1994 Mr. Brown had still not obtained
837financing. Therefore, Respondents, without Mr. Brown's consent,
844disbursed part of the $1,000.00 deposit to the Chapman's and part
856to a title insurance company.
86112. When Mr. Brown requested the return of his deposit,
871Ms. Mediate informed him that he had forfeited the deposit
881because he had failed to obtain a third-party loan.
89013. On or about January 28, 1998, more than three years
901after disbursing the deposit, Ms. Mediate notified the Division
910that there was a dispute over whom Mr. Brown's deposit should be
922disbursed to.
92414. On or about November 18, 1998, an Administrative
933Complaint was issued against Respondents. Respondents were both
941charged with violating Sections 475.25(1)(e) (by failing to
949institute one of the procedures specified in Section
957475.25(1)(d)1, Florida Statutes in violation of Rule 61J2-
96510.032(1), Florida Administrative Code), and (k), Florida
972Statutes.
973CONCLUSIONS OF LAW
97615. The Division of Administrative Hearings has
983jurisdiction of the parties to, and the subject matter of, this
994proceeding. Section 120.57, Florida Statutes (1997).
100016. The burden of proof in this proceeding was on the
1011Division, the party asserting the affirmative of the issue: that
1021Respondents committed violations of Section 475.25(1), Florida
1028Statutes. See Florida Department of Transportation v. J.W.C.
1036Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.
1048Department of Health and Rehabilitative Services , 348 So. 2d 349
1058(Fla. 1st DCA 1977). The Division was required to meet its
1069burden by clear and convincing evidence. Ferris v. Turlington ,
1078510 So. 2d 292 (Fla. 1987).
108417. Section 475.25, Florida Statutes (1997), authorizes the
1092Florida Real Estate Commission to take disciplinary action
1100against the license of any real estate broker or real estate
1111salesperson if the licensee commits certain specified acts. Of
1120the specified acts of Section 475.23, Florida Statutes,
1128Respondents were charged with violating the following:
1135. . . .
1139(e) Has violated any of the provisions of this
1148chapter or any lawful order or rule made or
1157issued, under the provisions of this chapter or
1165chapter 455.
1167. . . .
1171(k) Has failed, if a broker, to immediately
1179place, upon receipt, any money, fund, deposit,
1186check, or draft entrusted to her or him by any
1196person dealing with her or him as a broker in
1206escrow with a title company, banking institution,
1213credit union, or savings and loan association
1220located and doing business in this state, or to
1229deposit such funds in a trust or escrow account
1238maintained by her or him with some bank, credit
1247union, or savings and loan association located
1254and doing business in this state, wherein the
1262funds shall be kept until disbursement thereof is
1270properly authorized . . . . The commission shall
1279establish rules to provide for records to be
1287maintained by the broker and the manner in which
1296such deposits shall be made.
130118. As to Section 475.25(1)(e), Florida Statutes, the
1309specific rule which Respondents were charged with having violated
1318is Rule 61J2-10.032(1), Florida Administrative Code:
1324(1)(a) A real estate broker, upon receiving
1331conflicting demands for any trust funds being
1338maintained in the broker's escrow account, must
1345provide written notification to the Commission
1351within 15 business days of the last party's
1359demand, and the broker must institute one of the
1368settlement procedures as set forth in s.
1375475.25(1)(d)1., Florida Statutes, within 30
1380business days after the last demand.
1386(b) A broker, who has good faith doubt as to
1396whom is entitled to any trust funds held in the
1406broker's escrow account, must provide written
1412notification to the Commission within 15 business
1419days after having such doubt and must institute
1427one of the settlement procedures as set forth in
1436s. 475.25(1)(d)1., Florida Statutes, within 30
1442business days after having such doubt. Based
1449upon prior decisions of the Commission, good
1456faith doubt shall be deemed to exist in the
1465following situations:
14671. the closing or consummation date of the
1475sale, lease, or other real estate transaction has
1483passed and the broker has not received
1490conflicting or identical instructions from all of
1497the parties concerning the disbursement of the
1504escrowed funds;
150619. Respondents were charged with violating the foregoing
1514rule by failing to follow one of the procedures for dealing with
1526a dispute over the disbursement of escrowed funds established in
1536Section 475.25(1)(d)1, Florida Statutes:
1540(d)1. Has failed to account or deliver to any
1549person, including a licensee under this chapter,
1556at the time which has been agreed upon or is
1566required by law or, in the absence of a fixed
1576time, upon demand of the person entitled to such
1585accounting and delivery, any personal property
1591such as money, fund, deposit, check, draft,
1598abstract of title, mortgage, conveyance, lease,
1604or other document or thing of value, including a
1613share of a real estate commission . . . .
1623However, if the licensee, in good faith,
1630entertains doubt as to what person is entitled to
1639the accounting and delivery of the escrowed
1646property, or if conflicting demands have been
1653made upon the licensee for the escrowed property,
1661which property she or he still maintains in her
1670or his escrow or trust account, the licensee
1678shall promptly notify the commission of such
1685doubts or conflicting demands and shall promptly:
1692a. Request that the commission issue an escrow
1700disbursement order determining who is entitled to
1707the escrowed property;
1710b. With the consent of the parties, submit the
1719matter to arbitration;
1722c. By interpleader or otherwise, seek
1728adjudication of the matter by a court; or
1736d. With the written consent of all parties,
1744submit the matter to mediation. . . .
1752If the licensee promptly employs one of the
1760escape procedures contained herein, and if she or
1768he abides by the order or judgment resulting
1776therefrom, no administrative compliant may be
1782filed against the licensee for failure to account
1790for, deliver, or maintain the escrowed property.
179720. Respondents had no right to disburse the deposit
1806tendered to them by Mr. Brown. The rules governing brokers are
1817clear that such funds may not be disbursed until after a
1828transaction closes without the consent of the depositor of the
1838funds. Rule 61J2-14.011, Florida Administrative Code. In this
1846case, closing never took place and Mr. Brown never gave any
1857instructions authorizing disbursement of the funds.
186321. Pursuant to Rule 62J2-10.032(1), Florida Administrative
1870Code, when the date for closing on the Purchase Contract, June
188130, 1994, passed, and Respondents received no conflicting or
1890identical instructions concerning the disbursement of Mr. Brown's
1898deposit, Respondents were deemed to have good faith doubt as to
1909how the funds should be disbursed.
191522. Despite Respondents' good faith doubt as to how Mr.
1925Brown's deposit should be disbursed, Respondents disbursed the
1933funds to the sellers and a title company. Respondent's
1942therefore, disbursed funds placed in their trust without
1950following the procedures specified in Section 475.25(1)(d)1,
1957Florida Statutes.
195923. Based upon the foregoing, Respondents did in fact
1968violate Section 475.25(1)(e), Florida Statutes, by failing to
1976following one of the specified procedures of Section
1984475.25(1)(d)1, Florida Statutes, contrary to Rule 61J2-10.032(1),
1991Florida Administrative Code, as alleged in the Administrative
1999Complaint.
200024. Respondents' disbursement of Mr. Brown's deposit before
2008authorization from Mr. Brown to do so also violated Section
2018475.25(1)(k), Florida Statutes.
202125. The Division has requested that Ms. Mediate be placed
2031on probation for a period of one year from the entry of the final
2045order in this case; that she be required to successfully complete
2056a seven-hour escrow management course for real estate brokers;
2065and that she be required to pay an administrative fine of
2076$1,000.00.
207826. The Division has requested that Royal Realty &
2087Management, Inc., be issued a written reprimand.
209427. The punishment recommended by the Division is
2102consistent with Rule 61J2-24.001, Florida Administrative Code.
2109While the range of penalties provided for a violation of Section
2120475.25(1)(e), Florida Statutes, may be more severe than the
2129penalties recommended by the Division, a consideration of the
2138aggravating and mitigating circumstances supports the Division's
2145recommendation.
2146RECOMMENDATION
2147Based on the foregoing Findings of Fact and Conclusions of
2157Law, it is
2160RECOMMENDED that a final order be entered by Petitioner
2169finding that Respondents have violated Sections 475.25(1)(e) and
2177(k), Florida Statutes, as alleged in the Administrative Complaint
2186issued against Respondents. It is further
2192RECOMMENDED that Respondent Yvonne Joiner Mediate be placed
2200on probation for a period of one year from the entry of the final
2214order; that she be required to successfully complete a seven hour
2225escrow management course for real estate brokers; and that she be
2236required to pay an administrative fine of $1,000.00. It is
2247further
2248RECOMMENDED that Respondent Royal Realty & Management, Inc.,
2256be issued a written reprimand.
2261DONE AND ENTERED this 28th day of June, 1999, in
2271Tallahassee, Leon County, Florida.
2275___________________________________
2276LAR RY J. SARTIN
2280Administrative Law Judge
2283Division of Administrative Hearings
2287The DeSoto Building
22901230 Apalachee Parkway
2293Tallahassee, Florida 32399-3060
2296(850) 488-9675 SUNCOM 278-9675
2300Fax Filing (850) 921-6847
2304www.doah.state.fl.us
2305Filed with the Clerk of the
2311Division of Administrative Hearings
2315this 28th day of June, 1999.
2321COPIES FURNISHED:
2323Daniel Villazon, Chief Attorney
2327Division of Real Estate
2331Department of Business and Professional
2336Regulation
2337Hurston North Tower, Suite N308
2342400 West Robinson Street
2346Orlando, Florida 32801-1772
2349Yvonne Mediate
2351U.S. Highway 19, South
2355Post Office Box 788
2359Monticello, Florida 32344
2362Herbert S. Fecker, Division Director
2367Division of Real Estate
2371Department of Business
2374and Professional Regulation
2377400 West Robinson Street
2381Post Office Box 1900
2385Orlando, Florida 32802-1900
2388William Woodyard, General Counsel
2392Department of Business
2395and Professional Regulation
23981940 North Monroe Street
2402Northwood Centre
2404Tallahassee, Florida 32933-1920
2407NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2413All parties have the right to submit written exceptions within 15
2424days from the date of this recommended order. Any exceptions to
2435this recommended order should be filed with the agency that will
2446issue the final order in this case.
- Date
- Proceedings
- Date: 09/16/1999
- Proceedings: Final Order filed.
- Date: 06/02/1999
- Proceedings: Proposed Recommended Order (Petitioner) (filed via facsimile).
- Date: 05/20/1999
- Proceedings: Transcript filed.
- Date: 05/05/1999
- Proceedings: CASE STATUS: Hearing Held.
- Date: 03/22/1999
- Proceedings: (Petitioner) Notice of Substitute Counsel (filed via facsimile).
- Date: 03/10/1999
- Proceedings: Notice of Hearing sent out. (hearing set for 5/5/99; 1:00pm; Tallahassee)
- Date: 02/09/1999
- Proceedings: (Petitioner) Unilateral Response to Initial Order (filed via facsimile).
- Date: 02/01/1999
- Proceedings: Initial Order issued.
- Date: 01/28/1999
- Proceedings: Agency Referral Letter; Administrative Complaint; Request for Hearing (letter) rec`d