Johnson, Norma L. Johnson, and Mary E. Landes. Additionally, Petitioner's Exhibits numbered 1 through 4 were admitted in evidence.
Mary E. Landes testified on behalf of the Respondents and presented the testimony of Karl Raymond Landes. Additionally, Respondents' Exhibit numbered 1 was admitted in evidence.
Both parties requested leave to file post-hearing findings of fact in the form of a proposed recommended order, and Respondents requested leave to file a separate memorandum of law. Although Petitioner filed a proposed recommended order containing findings of fact, Respondents failed to file either findings of fact or the requested memorandum. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as
not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
In 1974 and up through the present time, Respondent has been a licensed real estate broker. During 1974, she operated under the name "World Wide Real Estate Center." Realty, Inc., is a corporate real estate broker licensed by the State of Florida, and Respondent is presently employed by Realty, Inc.
On or about May 1, 1974, Respondent, while registered and operating as a real estate broker in the name of World Wide Real Estate Center presented a seminar in St. Petersburg, at which time she lectured and discussed real estate matters, specifically the purchase of real property located in Costa Rica. At that seminar, Respondent introduced Otho "Skip" Thomas as her associate and, together with him, made the presentation concerning Costa Rica and the availability of real property for purchase in Costa Rica. William E. Hoyer, Janice Hoyer, and Norma L. Johnson attended the seminar, since they had travel arrangements made for a vacation in Costa Rica in June.
The Hoyers and the Johnsons knew Thomas as a former travel agent who had arranged several vacation trips for a travel group of which the Hoyers and the Johnsons were members. They knew that Thomas had sold his travel agency prior to the time they attended the seminar conducted by Respondent and Thomas. Since Thomas was describing real property and the prices of available property in Costa Rica and answering questions from the audience at the seminar, the Hoyers and the Johnsons assumed he had become a licensed real estate salesman after giving up the travel agency business. At all times, Respondent knew that Thomas was not a licensed real estate broker or a licensed real estate salesman.
Since the Hoyers and the Johnsons were interested in purchasing real property in Costa Rica, between the time of the seminar and their departure for Costa Rica, they went to the office of World Wide Real Estate Center. Thomas met with them and discussed in more detail both property descriptions and sale prices of property available in Costa Rica. He gave them a business card from World Wide Real Estate Center containing both Respondent's name and Thomas's name. He arranged to meet them in Costa Rica. Respondent was not present at this meeting at World Wide Real Estate Center.
After the Hoyers and the Johnsons arrived in Costa Rica for their vacation, they met with Respondent and Thomas in a hotel room to further discuss available real estate. Thomas ran the meeting and went through a file box he had, reciting specific pieces of property available and their purchase prices. Thomas then returned to St. Petersburg, Florida, and Respondent, together with a Costa Rican, Carlos Salizar, began showing property to the Hoyers and to the Johnsons. As a result, the Hoyers selected a piece of property to purchase, but the Johnsons found two pieces of property they were interested in purchasing, although they could only purchase one of those two properties.
Respondent took the Hoyers and the Johnsons to an attorney's office in Costa Rica. Both the Hoyers and the Johnsons signed documents, probably powers of attorney whereby the lawyer would negotiate and purchase the property the Hoyers wanted and also whichever parcel the Johnsons decided they wanted.
Since the Hoyers had made their decision, they gave to the lawyer a check for $4,000 to be used by him as a down payment. After they left the lawyer's office, Respondent told them to stop payment on that check and to instead wait until they had returned to St. Petersburg and then give a check for
$4,000 made payable to World Wide Real Estate Center to Thomas. She also told the Johnsons to give Thomas a check for $4,000 made payable to World Wide Real Estate Center after they had returned to St. Petersburg and decided which parcel they wished to purchase.
Respondent told the Hoyers and the Johnsons to deal with Thomas because he was handling the business affairs in St. Petersburg for her while she was in Costa Rica. She did not tell them to make the check payable only to the escrow account of World Wide Real Estate Center, nor did she tell them that Thomas was an authorized signature on the general account of World Wide Real Estate Center, but not on the escrow account of World Wide Real Estate Center.
The Hoyers returned to St. Petersburg and stopped payment on the check for $4,000 which they had left with the attorney selected by Respondent. On July 22, 1974, the Hoyers gave Thomas a cashier's check in the amount of $4,000 payable to World Wide Real Estate. Thomas deposited that check into the general operating account of World Wide Real Estate Center. The Hoyers delivered the funds to Thomas pursuant to the express instructions of Respondent given to the Hoyers while they were still in Costa Rica.
After the Johnsons returned to St. Petersburg, Thomas began contacting them to obtain their decision as to which piece of property they wished to purchase. When they decided, Thomas met with Norma Johnson on July 24, 1974. Mrs. Johnson gave him two checks in the total amount of $4,000 payable to World Wide Realty and obtained from Thomas a receipt for the funds. Thomas deposited the checks into the general operating account of World Wide Real Estate Center. The Johnsons delivered the funds to Thomas pursuant to the express instructions of Respondent given to the Johnsons while they were still in Costa Rica.
Since the Johnsons and the Hoyers heard nothing regarding the status of the purchase of the property on their behalf, they began contacting Thomas in St. Petersburg and Respondent in Costa Rica. They were advised that the property was being surveyed or that real estate transactions in Costa Rica were normally slow.
In September, Respondent returned from Costa Rica. She discovered that Thomas had left town after withdrawing the funds in the general operating account of World Wide Real Estate Center. The funds withdrawn by Thomas included the Johnsons' $4,000 and the Hoyers' $4,000.
Respondent did not notify either the Hoyers or the Johnsons that their funds had been stolen by Thomas until December, 1974, when she met with them at the Johnsons' home. She then advised them that the police were unable to locate Thomas and that, if necessary, she would use her own funds to purchase the property for them. Both the Johnsons and the Hoyers told her they wanted the property or their money back.
Hearing nothing further from Respondent, the Hoyers and the Johnsons retained an attorney, who wrote to Respondent on March 20, 1975, demanding immediate return of his clients' moneys.
Hearing nothing further from Respondent, in May, 1975, the Johnsons and the Hoyers each filed a civil action against Respondent demanding return of their money. Both lawsuits were consolidated for trial. On December 18, 1975, a final judgment was entered against Respondent, doing business as World Wide Real Estate Center, and in favor of the Johnsons in the amount of $4,000 plus interest. On December 23, 1975, final judgment was entered against Respondent, doing business as World Wide Real Estate Center, and in favor of the Hoyers in the amount of $4,000 plus interest.
Respondent failed to pay either final judgment. She was deposed in aid of execution in order to locate assets to collect on the final judgments.
On February 1, 1978, Respondent filed for bankruptcy in order to discharge the judgments of the Hoyers and the Johnsons. Respondent admitted that was the only reason she went through bankruptcy. The Discharge of Bankrupt was entered on May 4, 1978. Respondent has never returned to the Hoyers or the Johnsons their moneys, despite the demand therefor made on her by them at the December, 1974, meeting at the Johnsons' home; despite the demand made on her by their attorney on March 20, 1975; despite the demand made on her by the filing of the civil actions in May, 1975; despite the demand made on her by the entry of the final judgments in December, 1975; and despite the demand made on her by the taking of her deposition in aid of execution.
In spite of her knowledge that Thomas was not a licensed real estate salesman or broker, Respondent represented Thomas to be her agent and a licensed real estate salesperson.
By the time of the formal hearing in this cause, Respondent's husband, Karl Landes, had become a licensed real estate broker. He and Respondent are employed by corporate broker Landes Realty, Inc. The sole stockholders of Realty, Inc., are Respondent and her husband.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes.
Count One of the Amended Administrative Complaint charges Respondent with violations of several statutory prohibitions arising out of her transactions with the Hoyers. Petitioner has met its burden of proving that Respondent violated Section 475.42(1)(c), Florida Statutes (1973), and, therefore, Section 475.25(1)(d), Florida Statutes (1973), in that while a broker, she employed or continued in employment or held out as an employee Otho "Skip" Thomas as a real estate salesman when, in fact, he was not a holder of a valid and current license as a salesman; that Respondent has violated the provisions of Section 475.25(4)(d) , Florida Statutes [carried forward from Section 475.25(1)(c), Florida Statutes (1973)], in that she failed to account or deliver to the Hoyers the $4,000 belonging to the Hoyers upon demand by them; that Respondent violated the provisions of Section 475.25(1)(b) Florida Statutes [carried forward from Section 475.25(1)(a), Florida Statutes (1973)], in that she is guilty of misrepresentation, false pretenses, culpable negligence and breach of trust in the business transactions with the Hoyers and has further violated her duty to the Hoyers in that transaction; that Respondent has violated Section 475.25(1)(k), Florida Statutes [carried forward from Section 475.25(1)(i), Florida Statutes (1973)], in that as a broker, she failed to immediately place or cause to be placed by her agent, upon receipt, the $4,000 deposit of the Hoyers entrusted to her in escrow with a title company or banking
institution located and doing business in Florida, or in a trust or escrow bank account maintained by her with some bank located and doing business in Florida until disbursement was properly authorized.
Count Two of the Amended Administrative Complaint charges Respondent with violations of several statutory prohibitions arising out of her transactions with the Johnsons. Petitioner has met its burden of proving that Respondent violated Section 475.42(1)(c), Florida Statutes (1973), and, therefore, Section 475.25(1)(d), Florida Statutes (1973), in that while a broker, she employed or continued in employment or held out as an employee Otho "Skip" Thomas as a real estate salesman when, in fact, he was not a holder of a valid and current license as a salesman; that Respondent has violated the provisions of Section 475.25(1)(d), Florida Statutes [carried forward from Section 475.25(1)(c), Florida Statutes (1973)], in that she failed to account or deliver to the Johnsons the $4,000 belonging to the Johnsons upon demand by them; that Respondent violated the provisions of Section 475.25(1)(b), Florida Statutes [carried forward from Section 475.25(1)(a), Florida Statutes (1973)], in that she is guilty of misrepresentation, false pretenses, culpable negligence and breach of trust in the business transactions with the Johnsons and has further violated her duty to the Johnsons in that transaction; that Respondent has violated Section 475.25(1)(k), Florida Statutes [carried forward from Section 475.25(1)(i), Florida Statutes (1973)], in that as a broker, she failed to immediately place or cause to be placed by her agent, upon receipt, the
$4,000 deposit of the Johnsons entrusted to her in escrow with a title company or banking institution located and doing business in Florida, or in a trust or escrow bank account in Florida until disbursement was properly authorized.
Count Three of the Amended Administrative Complaint alleges that subsequent to the transactions and occurrences set forth with reference to the Hoyers and the Johnsons, Respondent formed Landes Realty, Inc., which is presently in existence as a corporate real estate broker, and that Respondent is the sole active broker-member of that corporation. Count Three further alleges that if disciplinary action be taken against Respondent, then such action must also be taken against Realty, Inc., pursuant to Section 475.15, Florida Statutes. Section 475.15, Florida Statutes (1973), required that the registration of a corporation be suspended automatically during any period of time that certificates of any one or more of its members, officers, or directors be not in force. Section 475.15, Florida Statutes, in its present form states that if the license of at least one active broker-member be not in force, the registration of such corporation must be cancelled automatically during that period of time. It has been shown that both Respondent and her husband are licensed real estate brokers, officers, directors, and sole stockholders of Landes Realty, Inc., which corporate broker employs both Respondent and her husband.
Section 475.25(3), Florida Statutes (1973), provided that a license could be revoked if the licensee:
[S]hall be found guilty of a course of conduct or practices which show that [she] is so incompetent, negli- gent, dishonest or untruthful that the money, property, transactions and
rights of investors or those with whom [she] may sustain a confidential rela- tion, may not safely be entrusted to [her].
See also Section 475.25(1)(n), Florida Statutes(1981).
Petitioner has recommended that the registration of Respondent be revoked and that the registration of Realty, Inc., be cancelled during said period of revocation. Petitioner's recommendation is both warranted and justified under the facts of this case. Respondent's lack of appreciation for the seriousness of what occurred and her attempts to disclaim responsibility for her own actions despite her admission that she knew Thomas was not a licensed real estate salesman and that he had signatory authority on her general operating account, but not on her escrow account, both critical facts of which the Hoyers and Johnsons were completely ignorant, are clear indications that she lacks the requisite judgment and integrity to continue to act as a broker in this state. Respondent argues that her license cannot be revoked for nonpayment of her debts which have been discharged in bankruptcy. She is correct.
