Fleischman v. Dept. of Professional Reg.Fleischman v. Dept. of Professional Reg.
Manuel E. Oliver, Hialeah, for appellant.
Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
SCHWARTZ, Chief Judge.
The Florida Real Estate Commission suspended the appellant Fleischman‘s salesman‘s license for 18 months solely because he did not return a deposit he received on a real estate transaction undertaken entirely on his own account. Upon the holding that
The operative facts, as found by the hearing examiner and adopted by the commission, are starkly simple and essentially uncontroverted. Fleischman advertised to lease a parcel of real property which he personally owned. In the course of the negotiations which resulted, Oscar Rodriguez wrote Fleischman a $2,500 check as a part of a projected $5,000 total deposit. There was no specific agreement as to whether the sum was refundable; Fleischman did not affirmatively inform Rodriguez that it was not and continued to seek a lessee subsequent to receiving the check. After neither the proposed lease nor an outright purchase of the property, which was also discussed, went through, Rodriguez demanded the return of the $2,500. Fleischman, claiming he was entitled to retain the sum, refused, and the present proceeding was thereupon commenced against him.
The commission neither alleged, proved nor found — as it manifestly could not under these facts — that Fleischman was guilty of fraud, dishonest dealing or the like under
[h]as failed to account or deliver to any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value, including a share of a real estate commission, or any secret or illegal profit, or any divisible share or portion thereof, which has come into his hands and which is not his property or which he is not in law or equity entitled to retain under the circumstances. However, if the licensee, in good faith, entertains doubt as to what person is entitled to the accounting and delivery of the escrowed property, or if conflicting demands have been made upon him for the escrowed property, which property he still maintains in his escrow or trust account, the licensee shall promptly notify the commission of such doubts or conflicting demands and shall promptly:
- Request that the commission issue an escrow disbursement order determining who is entitled to the escrowed property;
- With the consent of all parties, submit the matter to arbitration; or
- By interpleader or otherwise, seek adjudication of the matter by a court. If the licensee promptly employs one of the escape procedures contained herein, and if he abides by the order or judgment resulting therefrom, no administrative complaint may be filed against the licensee for failure to account for, deliver, or maintain the escrowed property.
It seems clear to us that this statute does not apply to a situation, like this, in which there is no more than a simple dispute — ordinarily resolvable in civil proceedings — over who is entitled to a given sum of money.
It is well-settled, on the one hand, that, absent clear legislative authorization to the contrary, violations of mere contractual rights are concerns only of the courts, and may not be enforced by disciplinary
The $2,500 given Fleischman as a deposit or earnest money in a proposed deal which involved his own property was in no sense “escrowed property.” That term by definition refers to property placed with a stakeholder or third party not involved in the transaction itself. Smith v. Macbeth, 119 Fla. 796, 161 So. 721 (1935); Cowman v. Allen Monuments, Inc., 500 S.W.2d 223 (Tex.Civ.App. 1973); see generally, 22 Fla. Jur.2d Escrow § 3 (1980). Whether Fleischman would have been civilly required to return the deposit as an unauthorized penalty, instead of retaining it as legitimate liquidated damages, 17 Fla.Jur.2d Damages § 98 et seq. (1980),1 his failure to do so cannot be made accountable to the commission‘s regulatory authority.2 This conclusion is made clear by Hogg v. Real Estate Commissioner, 54 Cal. App.2d 712, 129 P.2d 709 (1942), which involved a virtually identical situation. In reversing the discipline imposed upon a broker because he failed to return a down payment on his own property, notwithstanding a finding that this conduct was “dishonest,”3 the court held
in the absence of any evidence showing bad faith, it is our conclusion that the finding that [the broker] was, in this transaction, dishonest, cannot be sustained. Stated another way, it cannot be held that appellant is guilty of ‘dishonesty’ for refusing to pay back a sum of money which in good faith he claims he is entitled to retain. Whether or not the legal objections raised by appellant against refunding the down payment are well taken must be determined, of course, in an action which may be brought to recover that sum. They are not issues which may be here decided... .
The appellee‘s heavy reliance for affirmance on Sellars v. Florida Real Estate Commission, 380 So.2d 1052 (Fla. 1st DCA 1979), rev. denied, 389 So.2d 1114 (Fla. 1980) is totally misplaced. Sellars indeed holds that a broker may be disciplined for improprieties in conducting his own personal real estate transactions. But this conclusion was based upon a violation of what is now
fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction... .
380 So.2d at 1053. To repeat, Fleischman was not even accused of any such misconduct. As its counsel acknowledged at oral argument, the literal interpretation of
For these reasons, the order under review is reversed and the cause remanded with directions to dismiss the complaint.