Findings Of Fact At all times pertinent hereto Respondent O'Connor was a licensed real estate broker in the State of Florida having been issued license lumber 0065137. Respondent Berg was a licensed real estate salesman having been issued license number 0391098. At all pertinent times alleged in the Administrative Complaint Respondent Berg was licensed and operated as a real estate salesman in the employ of broker Respondent Edward M. O Connor. On or about February 15, 1953, Respondent Berg entered into a contract as purchaser seeking to purchase certain real property in Charlotte County, Florida, described as: Lot 26, Block 1, Charlotte Harbour Subdivision, also known as 201 Cortex Street, Charlotte County, Florida. The property was owned by Louis J. Knetter. Mr. Knetter, as seller, was represented by Emanuel Consalvo, a licensed real estate salesman or broker. This proposed contract, contrary to the allegations of Petitioner, made no mention in its terms of any $500 binder or earnest money deposit. Rather, the contract, instead of mentioning a cash deposit, had the words "commission" clearly written on the top, being Berg's pledge to pay $300 of the real estate commission he would be entitled to on the transaction to the buyer at closing. The proposed contract was tendered to Emanuel Consalvo , the seller's agent, who examined it thoroughly with his client Louis Knetter. Mr. Knetter subsequently refused to enter into that proposed contract. Respondent Berg then made a second offer to purchase the same property which was accepted by the seller. This offer was made on April 18, 1983. The contract regarding the second offer was prepared from a rough draft which Respondent Berg had handwritten. He handwrote the word "commission" precisely as on the original offer of February 15, 1983. On the final typed copy of the contract the abbreviated word "comm.," was typed into the contract to indicate (and it was Respondent Berg's intent) that the commission to be earned by Berg would be used as a down payment at closing rather than any proposal by Berg (or O'Connor) to post $500 or other amount of cash earnest money deposit upon the offering of the contract. Respondent Berg genuinely believed that anything of value could be inserted into a contract to provide consideration and could serve as sufficient consideration therefor including his offer to pay to the buyer a part of the real estate commission he would be entitled to with regard to that transaction Neither Respondents Berg nor O'Connor made any representations or statements, verbally or written, to Louis Knetter or Emanuel Consalvo to the effect that there ever was an earnest money deposit in any amount posted by the purchaser Berg, or on account at O'Connor Realty. Kevin O'Connor, the son of Respondent O'Connor, is also a licensed real estate broker who holds a degree in the field of real estate. He established that the textbook practice and indeed, the general real estate industry custom or practice in the Charlotte County area allows for anything of value to be used as consideration for a real estate contract and that a cash earnest money deposit is not necessary. He established the industry practice with regard to the posting of earnest money deposits for real estate sales contracts and demonstrated that unless a contract, by its terms, clearly indicates that an earnest money deposit has been posted, there is no basis for a seller or his agent to assume that to be the case. Kevin O'Connor, a witness for the Respondents, had personal contact with the seller's agent, Emanuel Consalvo, regarding the transaction and established that the Respondent Edward M. O'Connor was not even in his office or in the area during the time of the contract proposal or offer. Kevin O'Connor was operating the office in the Respondent Edward O'Connor's absence. Kevin 0'Connor established that the question of an earnest money deposit was never discussed with Consalvo and that neither Consalvo nor Knetter ever raised a question during the pendency of the transaction concerning the existence of an earnest money deposit. Kevin O'Connor never told Consalvo that any money was in escrow nor did Respondent Berg or Edward O'Connor. No representation was ever made to Consalvo or Knetter, singly or jointly, to the effect that any money had been placed on deposit or in escrow with regard to either of the two offers. Indeed, Mr. Consalvo acknowledged that no one at 0'Connor Realty ever told him of any money being placed in an escrow account. The transaction ultimately failed to close because the seller failed to include all the furniture with the home as required by the contract. At that juncture, the seller demanded the supposed $500 earnest money deposit to be paid him as a forfeiture on the mistaken belief that an earnest money deposit had been posted with regard to the transaction. Such was not the case however, nor was it ever represented to be the case.
Recommendation Having considered the foregoing Findings of Fact and 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 complaint filed by Petitioner against Respondents William Berg and Edward M. 0'Connor t/a O'Connor Realty, be DISMISSED in its entirety. DONE and ENTERED this 5th day of February, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-0180 PETITIONER'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Rejected as not comporting with the competent, substantial, credible evidence presented. Accepted, but not in itself dispositive of the material issues presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Accepted, but not dispositive of the material issues presented in itself. Accepted, but not dispositive of the material issues presented. Accepted, but not dispositive of the material issues presented. RESPONDENT EDWARD O'CONNOR'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as constituting a conclusion of law. Accepted. Rejected as constituting a conclusion of law. Accepted. Accepted. Accepted. Accepted. RESPONDENT WILLIAM BERG'S PROPOSED FINDINGS OF FACT: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Elwood P. Safron, Esquire SAFRON, RODNEY & DZUPAK 306 E. Olympia Punta Gorda, Florida 33950 Jesus Hevia, Esquire WOTITZKY, WOTITZKY, WILKINS, FROHLICH & JONES 201 West Marion Avenue Punta Gorda, Florida 33950 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent Pinkerton has been a registered real estate broker since May 19, 1976, before which he was a real estate salesman registered with Strout Realty, Inc. On October 29, 1975, respondent entered into an agreement with Transamerica Homes Company (Transamerica) to sell at auction five mobile homes belonging to Transamerica. On November 15, 1975, respondent acted as auctioneer at an auction at which all five mobile homes were sold. After receiving some of the proceeds of the sale, Transamerica's agents asked respondent to remit an additional seven thousand six hundred eighty dollars ($7,680.00). Respondent told Robert P. Wold, Transamerica's authorized representative in Florida, that he did not have that much money because he had borne expenses in connection with the auction that Transamerica should have paid. After telling Transamerica's agents that he did not have sufficient funds to cover such a check, respondent nonetheless drew and mailed a check in the amount of seven thousand six hundred eighty dollars ($7,680.00), in the belief that Mr. Wold wanted him to write the check even though the funds to cover it were not on deposit. When the check was presented to the American Bank of Lakeland, on which it was drawn, petitioner had four thousand nine hundred fifty-three dollars and fifty-three cents ($4,953.53) on deposit, and the bank dishonored the check. After the check was returned for insufficient funds, Mr. William S. Hagar telephoned respondent on behalf of Transamerica to discuss the matter. Respondent said he would send another check in the amount of two thousand five hundred dollars ($2,500.00) within a week, which he did. Another week passed; another telephone call transpired between Mr. Hagar and respondent; and respondent sent a second check in the amount of two thousand five hundred dollars ($2,500.00). Both of the checks respondent had drawn for two thousand five hundred dollars ($2,500.00) were paid upon presentment. On March 13, 1976, respondent wrote Mr. Hagar a letter in which he stated: At this point, due to the many problems involved in the Auction of the Mobile Homes on the 15th of November, 1975 at Skyview Waters in Lakeland, I feel I am entitled to additional compensation. First of all, it is almost unheard of in an auction of this kind for less than 20 percent commission. I was assured [sic] by Mr. Robert Wold of his assistance in preparing the sale. He and Mr. Paul Harris were supposed to provide the arrangements for financing. They did absolutely nothing. They were supposed to assist prospects in locating lots and people to handle moving, setups, driveways and other improvements. By our agreement my only obligation was to be to supervise and provide auctioneer voice. I think you are quite aware that the entire operation was left for me to do at about 1/4 the commission I should have been paid plus the fact that I was forced to split the meager commission I earned with two other people. So, I ended up with less than $1000 gross commission on a sale that should have netted me at least $10,000. On March 16, 1976, Mr. Hagar replied, sending a copy of his letter to the Florida Real Estate Commission: This letter acknowledges receipt of your truly [sic] amazing letter of March 12, 1976. I have reviewed the Auction Agreement which you executed, a copy attached for your information and edification. The language is clear, unambiguous and the obligations of both parties are stated plainly. We have honored our obligations completely and we expect you to honor yours. Paragraph 2) stated you will be ". . . solely responsible in setting up and conducting the auction sale without interference from anyone. . ." Paragraph 3) states you ". . . shall retain Four percent of the bid price received, as commission . . ." for your services. Lastly, Paragraph 6) states there are ". . . no oral representations, agreements or understandings between either of the parties. . . ". * * * We have been patient and forbearing in allowing you the opportunity to make restitution without resorting to the full remedies available under the law to us . . . I assure you that unless we receive your certified check in the amount of $2,680 by March 24, 1976, we shall exercise each and every remedy so available. On March 26, 1976, Mr. Hagar, not having heard from respondent, engaged Florida counsel who eventually succeeded in obtaining a default judgment against respondent in the amount of two thousand six hundred eighty dollars ($2,680.00) plus costs. This judgment had not been satisfied at the time of the hearing in the present proceeding. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 24th day of April, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not establish when respondent became associated with Strout Realty, Inc. Respondent's letter of March 12, 1976, to Mr. Hagar was written on Strout Realty, Inc. stationery, however. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the check was for only a part of Transamerica's claimed share of the sale proceeds. Respondent did in fact know that he had insufficient funds to cover the check, a fact of which he made no secret. Paragraph three of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. COPIES FURNISHED: Kenneth M. Meer, Esquire 400 West Robinson Avenue Orlando, Florida 32801 Mr. George W. Pinkerton 2833 East Highway 92 Lakeland, Florida 33801 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 77-2292 GEORGE W. PINKERTON, Respondent. /
Findings Of Fact Respondent Nelly Dijkman is now and was during the year 1977 registered with the Florida Real Estate Commission as a broker/salesman employed by Cousins Associates, Inc., 5830 Southwest 73rd Street, South Miami, Florida. (Stipulation) On January 14, 1977, Brian M. Foley and his wife, Leslie W. Foley, executed a listing agreement with Cousins Associates, Inc., South Miami, Florida, for the sale of their residence located at 7740 Southwest 143rd Street, Miami, Florida. The exclusive listing agreement was executed by Respondent on behalf of Cousins Associates, Inc., and provided for a three month period in which that firm would have the exclusive right to sell the property for a price of $87,500.00 at a commission of 6 percent of the selling price. It also provided that the realtor would have the property placed in multiple listing with the Kendall-Perrine Real Estate Computer Service, Inc., and that any sales derived from co-brokerage would be subject to an equal division of the real estate commission. Respondent had shown rental property to the Foleys prior to their purchase of the property which was the subject of the listing agreement. She also showed them prospective properties for purchase for some time prior to January 1977 and continued to do so during succeeding months. The listing agreement was renewed on May 10, 1977, for another three months with a selling price of $84,500.00. On that date, the parties also executed an agreement to place the property in the multiple listing service of the Coral Gables Board of Realtors. (Testimony of B. Foley, Petitioner's Exhibit 2.) During the period January-June 1977, Respondent showed the Foleys approximately 20 houses that were for sale in the area. On June 26, 1977, they made a written offer on property located at 6450 SW 92nd Street, Miami, Florida, and placed $500.00 in escrow with Respondent as a deposit. On the same date, Rosalie Kotok, a broker with Sunniland Realty, and Howard Richards, made an offer to purchase the Foley property for $77,000.00. The selling price of the property had been lowered by the Foleys to $79,900.00 on June 19th. The offer was made on behalf of Kotok and Richards through an associate with Sunniland Realty, Ruth Hanrahan. Mr. Foley advised Respondent that he would not sell the house for less than $79,000.00 and asked her to transmit the counteroffer to the prospective purchasers. On June 27 Respondent transmitted Foley's counteroffer of $79,000.00 and Kotok increased the offer to $78,000.00. Respondent told Mr. Foley of this offer by telephone that afternoon and he declined to reduce his asking price of $79,000.00. Respondent then obtained authorization from her broker, Jane C. Cousins, to reduce their share of the real estate commission $1,000.00 in order to effect the sale, based on the Foleys' "cooperation to work with us to purchase another home." Mr. Foley accepted this arrangement for the sale of the house on June 27. The sales purchase agreement with Kotok and Richards reflected execution by the Foleys on June 28, 1977. They executed an agreement, dated June 29, 1977, to purchase the house on which they had made the June 26 offer. (Testimony of Respondent, Cousins, B. Foley, Petitioner's Exhibit 2, Respondent's Exhibits 2-4.) On the morning of June 27, John P. Marangos, a broker/salesman registered with South Dade Realty, Inc., called Respondent at her home and told her he had a "hot prospect" to show the Foley house. Respondent told him that there was a contract being negotiated at that time on the property, but that he could certainly show the house because of the property, but that he could certainly show the house because of the possibility that the pending deal might not materialize. She left the key to the Foley house in her mail box for Marangos to pick up. About twenty minutes later, Marangos came back and was not responsive when Respondent asked him how his clients had liked the house. Respondent then told him that she had several other properties that they might be interested in and he said that he would consider showing them on another day. (Testimony of Respondent.) About a week after he had sold his home, Mr. Foley received a telephone call from an unknown person from South Dade Realty, Inc., who told him that Marangos had wanted to buy his house and had made an offer of purchase. Foley called Marangos who allegedly told him that he had informed Respondent that he had a written contract for $78,900.00 on the Foley house, but that Respondent had told him that the house was sold. Foley testified that he then asked Respondent about the offer and she told him that it was not her duty to inform him of any other contract. He further testified that about a week after his initial conversation with her, Respondent told him that she did, in fact, have an offer from Marangos but did not want to present it because he had a very bad reputation for making offers on houses and not following through. He also testified that in his conversations with Respondent, she told him that she was aware of the amount of the offer made by John Marangos but that she did not pay any attention to it because he had a bad reputation. In contrast to Foley's testimony, Marangos testified that he and his wife had looked at the Foley house on June 27 after obtaining the key from Respondent. They decided to make the purchase in their own behalf and he therefore returned to his office, wrote a contract by hand, plus a check for $5,000.00 as a deposit on his bank account. He then called Respondent to tell her that he would like to present a contract on the house and she told him that a contract was being negotiated on the property at the time. She also allegedly told him that the sellers had until six o'clock that evening to respond to the pending offer and that she did not want to confuse the issue by having all kinds of contracts coming in. He testified that he called her that evening and she told him that the house was sold. Although Marangos' testimony confirmed Foley's version that his offer was for $78,900.00, he denied telling Respondent the amount of his offer or that it was in his own behalf. He further testified that one-half of the real estate commission would go to his firm if his offer had been accepted. He denied talking to Respondent when he returned the Foley key and said that he had merely put it in her mail box. Marangos testified that after Respondent told him the house had been sold, he threw away the contract and check. Although he was not sure whether there was $5,000.00 in his checking account on June 27, he testified that the check would have been good because he had often transferred money from his savings account to cover the amount of the check. He did not enter the $5,000.00 on his check stubs because he customarily carried several checks around while his wife retained the check book for entry therein at a later time. Respondent, on the other hand, testified that after she heard from Foley as to the Marangos offer, she talked to Marangos and told him that she understood he had presented a contract on the house to Mr. Foley. Marangos responded that Foley had been calling him. Respondent then asked him how he was doing with his hot prospect and he said, "Well, Nelly, those hot prospects were myself and my wife." In view of the contradictory nature of the foregoing testimony and the lack of documentary evidence, it is found that Petitioner failed to establish the fact that an offer to purchase the Foley property was communicated to Respondent by Marangos on June 27, 1975, or at any other time. (Testimony of Respondent, Foley, Deposition of Marangos, Petitioner's Exhibit 1.)
Recommendation That the Administrative Complaint against Respondent Nelly Dijkman be dismissed. DONE AND ENTERED this 21st day of December 1978 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December 1978. COPIES FURNISHED: Salvatore Carpino, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Richard M. White, Sr., Esquire Suite 100 7100 North Kendall Drive Miami, Florida 33156
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent, Judith Ann Lukacs, be DISMISSED. DONE and ENTERED this 24th day of May, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings 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 May, 1982
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint filed March 1, 1982, the Petitioner, Department of Professional Regulation, Florida Real Estate Commission, seeks to suspend, revoke or take other disciplinary action against Donna Migone and Pedro Realty, Inc., as licensed real estate salesperson/corporation, respectively, who have been issued License No. 0304648. 2/ On August 8, 1980, Mrs. Mary Perez, c/o Douglas Spring, Esquire, 15211 N.W. 60th Avenue, Miami Lakes, Florida 33014, entered into a listing agreement with Respondents Migone and Pedro Realty, Inc., for the sale of Mrs. Perez' property located at 414 West 67th Street, Hialeah, Florida. The asking purchase price of the subject property was $69,900. On August 18, 1980, Mrs. Perez was presented with a contract for the sale of her residential property by Donald E. Morton, a licensed real estate broker employed by International Realty Association and Investment Corp. and Respondent Donna Migone, the listing salesperson for Respondent, Pedro Realty, Inc. The contract/offer presented was for the sum of $66,000. Mrs. Perez reviewed the contract/offer presented by Respondent Migone and thereafter Respondent Migone filled out a form entitled "Approximate Seller Expenses" to explain to Mrs. Perez how the proceeds of the sale would be disbursed. During this explanation, Respondent Migone computed the commission due herself and Donald Morton both on the basis of a sales price of $56,000 and $66,000 pursuant to the contract/offer presented. In this regard, Mrs. Perez agreed to hold a $10,000 second mortgage to assist the purchasers in securing the financing to purchase the property. During that time, August 18, 1980, the purchasers gave Donald E. Morton a $4,000 purchase-money deposit for the subject property to be held in escrow until closing. On December 5, 1980, the closing occurred in a typical manner whereby the seller and the buyer separately delivered their respective documents and monies to the Amerifirst Federal Savings & Loan, 900 N.E. 125th Street, Suite 200, North Miami, Florida. There was no formal gathering of the parties and Respondent Migone and Donald E. Morton were notified on or about December 10, 1980, by Mrs. Perez' attorney, Douglas Spring, that the closing had occurred. Respondent Migone and Donald E. Morton computed the commission on the basis of six percent (6 percent) of the full purchase price of $66,000. This amounted to $3,960 as computed by Respondent Migone on one of the two net sheets presented to Mrs. Perez. On December 18, 1980, Respondent Migone and Donald E. Morton were paid $1,980 each from the escrow fund, and Donald E. Morton sent Mrs. Perez a check for $40.00 representing the balance due her from the escrow deposit fund. Petitioner contends that the commission should have been computed by Respondents Migone and Pedro Realty, Inc., on the basis of six percent (6 percent) of the amount of $56,000 or $3,360 as reflected on one of the net sheets presented to Mrs. Perez by Respondent Migone. On this point of dispute, evidence reveals that when the contract/offer was presented to Mrs. Perez, Mrs. Perez reviewed the offer and at that time was presented with two forms filled out by Respondent Migone entitled "Approximate Seller Expenses" to reflect how the proceeds of sale would be disbursed. During this discussion, Mrs. Perez agreed to the $66,000 offer and agreed to hold a $10,000 second mortgage to assist the purchasers in completing the real estate transaction. The testimony reflects that Mrs. Perez was interested in receiving a monthly income check and the income from the $10,000 mortgage was a means whereby this could be achieved. During the course of these discussions, one of the forms computed by Respondent Migone for the commissions reflected that commissions would be computed based on $56,000 whereas another form was computed reflecting the total purchase of $66,000. A careful reading of the testimony of Mrs. Perez reflects that she understood that she would be paying the commission based on the total purchase price of $66,000 and not based on the $56,00 as the Petitioner contends. Mrs. Perez indicated that she knew that she was selling the property for $66,000 and the six percent (6 percent) commission (on that basis) was no surprise to her. (TR 33, 40, 41, 57, 65, 72, and Respondent's Composite Exhibit B). Further, Respondent Migone credibly testified that there was a great deal of discussion of the $56,000 versus the $66,000 and the manner in which the $10,000 second mortgage would be written up; however, there was no evidence presented to reflect that no commission would be paid on the $10,000 second mortgage as contended by the Petitioner other than the "net sheet" computed by Migone reflecting the commission computed on six percent (6 percent) of $56,000. Further, Respondent Migone testified that Mrs. Perez never discussed paying a commission only on $56,000 versus the $66,000 as was computed and deducted by the Respondents. A review of the documentary evidence indicates that there are no variations of the six percent (6 percent) commission of the total sales price. (TR 66)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint against the Respondents, Pedro Realty, Inc., and Donna Migone, be DISMISSED in its entirety. RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983.
The Issue Whether petitioner's application for registration as a real estate salesman, pursuant to Chapter 475, Florida Statutes, should be approved.
Findings Of Fact Petitioner field applications for registration as a real estate salesman with respondent on October 10, 1977. Question 16 of the application reads as follows: 16. Have you, in this state, operated, attempted to operate, or held yourself out as being entitled to operate, as a real estate salesman or broker, within one year next prior to the filing of this application without then being the holder of a valid current registration certificate authorizing you to do so? The petitioner answered "no" to Question 16. On December 8, 1977, respondent Florida Real Estate Commission issued an order denying the application based on its determination that the applicant had operated, attempted to operate or held himself out as a real estate broker or salesman within the one year period prior to filing his application. Petitioner thereafter requested a hearing in the matter. (Exhibit 1) Petitioner is the president of Marketing Institute Corporation of the Americas, Ltd. of San Jose, Costa Rica. (MICA) The firm operates as a real estate sales organization under the laws of Costa Rica, and is owned by Insco S.A., a Costa Rican holding company. (Testmony of McIntire, Figueredo) In 1975, petitioner became associated with William W. Landa, president of Costa del Sol, a condominium project in Miami, Florida. His function was to produce sales of condominium units as a result of sales efforts in Latin America. Part of the informal arrangement was the petitioner occupied a rental villa at the condominium project. His success in producing sales was limited and, as a result, the association was terminated sometime in 1976. In a letter to Lands, dated January 21, 1977, petitioner sought an accounting of expenses incurred in the operation and stated that he had produced three purchasers for which commissions were payable at the rate of "10% for foreign sales and 5% on domestic sales." Although no explanation of the terms "foreign sales" and "domestic sales" was presented, Landa testified at the hearing that petitioner did not sell in Florida for Costa del Sol. (Testimony of Landa, Figueredo, Exhibits 2-3) On December 1. 1976, the receiver in bankruptcy of the estates of Grandlich Development Corporation and Fisher Development Corporation, Fred Stanton Smith, president of the Keyes Company, Miami, Florida, Wrote petitioner and offered to pay his firm a 10% commission on "all sales closed by you of all Commodore Club Condominiums sold to your prospects." The commission was to be payable to MICA through its agent in the United States, Transcontinental Properties, Inc. of Miami, Florida, a corporate broker, The Commodore Club is a condominium project located at Key Biscayn, Florida. Hemisphere Equity Investors, Inc. was the registered broker for the sales of the condominiums and kept sales agents on the premises. Smith instructed Hemisphere to cooperate with foreign brokers in the sales of the properties. Petitioner proceeded under this arrangement to obtain and refer prospective foreign purchasers to Transcontinental who arranged to show the condominium units to the clients and consummate any resulting sales. Although petitioner had desk space in the Transcontinental office from September, 1976, to August, 1977, he was not supposed to show properties to clients or be involve in any real estate sales functions. In September, 1976, the president of Transcontinental placed a telephone call to respondent's legal office at Winter Park, Florida and ascertained that commissions could be paid to a foreign broker. However, he was informed by the Commission representative that it was a "gray" area and, although the foreign representative could serve as an interpreter for foreign clients during transactions in the United States, he could not perform any of the sales functions himself in Florida. Sales were made in this manner and commission checks were paid to petitioner's firm during the period January - September, 1977. (Testimony of Smith, McIntire, Figueredo, Exhibits 4, 5, 12, 13, 15) On July 1, 1976, Alexander Sandru purchased a condominium at the Commordore Club through the Keyes Company as broker. He was a friend of petitioner's from Caracas, Venezuela, and the latter had recommended his purchase of the condominium. However, petitioner was not in the United States at the time Sandru viewed the property and purchased it. Petitioner claimed a commission on the sale and it was paid to his firm through Transcontinental's predecessor company. A dispute arose over the payment of the commission because a saleswoman of Hemisphere Equity Investors, Inc. had shown the property to Sandru and assumed that she would earn the commission on any resulting sale. (Testimony of Lundberg, Nelson, Murragy, Exhibits 8-11) On several occasions in 1976 and 1977, petitioner accompanied Latin American individuals to the Commodore Club where a representative of Hemisphere showed them various condominium units. During this time, petitioner would inquire concerning maintenance charges and the like and transmit such information to the individuals in Spanish. Several of these persons were connected with petitioner's foreign firm and were not prospective purchasers. (Testimony of Lundberg, Figueredo, Exhibit 7) On January 30, 1977, Insco S.A. entered into a purchase agreement for a Commodore Club condominium unit. Petitioner signed the agreement on behalf of his firm MICA as broker for the transaction. However, the deal was never consummated. (Testimony of Figeredo, Exhibit 14)
Recommendation That Petitioner's application for registration as a real estate salesman under Chapter 475, Florida Statutes, be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of March, 1978. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Richard J. Mandell, Esquire 748 Seybold Building Miami, Florida 33132
The Issue The issue posed for decision herein is whether or not James T. Speaks, Respondent, engaged in conduct amounting to a failure to maintain in an escrow bank account deposits he received as a selling broker which were entrusted to him in the course of his brokerage activities until a proper or authorized disbursement of such monies was made. Based on its Administrative Complaint filed on May 17, 1978, the Florida Real Estate Commission, Petitioner, seeks to revoke, annul, suspend or otherwise discipline licensee James T. Speaks, who holds Florida Real Estate License No. 0083459, based on conduct which will be set forth herein in detail.
Findings Of Fact Based on the testimony presented during the course of the hearing, the following relevant facts are found: During October of 1976, Donna W. Ross was a listing broker to sell the property of Katherine Scanlon. During mid-October, 1976, Respondent Speaks located purchasers for the Scanlon property and submitted an offer to the listing broker, which offer was accepted by the seller. Respondent Speaks deposited a $1,000.00 binder deposit in his escrow account. (See FREC Composite Exhibit No. 7.) The closing of the real estate transaction in the Scanlon property took place in Attorney David Booher's office who, based on evidence received during the course of the closing, questioned Respondent Speaks as to the negotiability of a $1,000.00 check Respondent Speaks presented as a refund of the escrow deposit he had tendered to secure the deposit receipt contract for the Scanlon property. Virginia RawIs, who was formerly employed by Booher and Crabtree, Realtors, called the Barnett Bank of Regency to verify if sufficient funds were on deposit in Respondent Speaks' account and was advised that sufficient monies were not on deposit to cover the check. At that juncture, Respondent Speaks acknowledged that he had tendered a check which was drawn on an account without sufficient funds to cover it and agreed that the $1,000.00 binder deposit should be deducted from his commission monies due. This agreement was acceptable to all parties concerned at the closing and another check representing the commission monies due Respondent Speaks, less the $1,000.00 deposit, was drawn and made payable to Speaks. Donna W. Ross, the listing broker, was also present during the hearing and verified the testimony of Attorney Booher respecting the presentation by Respondent Speaks of the $1,000.00 check which was not secured by sufficient funds. As noted in the appearance section of this Recommended Order, the Respondent, James T. Speaks, did not appear during the hearing although copies of the Notice of Hearing were mailed to his last known addresses.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Registered Real Estate Broker license of Respondent, James T. Speaks, be suspended for a period of two (2) years. RECOMMENDED this 5th day of January, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The Administrative Complaint alleges that the Respondents are guilty of fraudulently withholding a commission and failing to account for said commission. The Respondents contend that there was no commission owed to the salesperson because the salesperson did not obtain the listing contract upon which the transaction closed and had been discharged for cause before a contract for purchase was obtained. The factual issues upon which the case is determined is whether the listing contract upon which the transaction closed was obtained by the salesperson who claimed the commission, and whether the contract for purchase was received before the salesperson was discharged for good cause. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact At all times relevant to the allegations of the Administrative Complaint and at the time of hearing, the Respondent, Jacqueline B. Ousley, held real estate broker's license number 0333339 and operated the Respondent corporation, Touch of Class Realty, Inc., which held corporate real estate broker's license number 0218522. Both licenses were issued by the Florida Real Estate Commission. (See Petitioner's Exhibit 1.) Diane Carroll was employed by the Respondents as a real estate salesperson from February to June l2, 1982. On June 13, 1982, Ms. Carroll was discharged for good cause by the Respondents. On May 25, 1982, Ms. Carroll obtained an open listing on the Breezeway Motel, 2001 North Dixie Highway, Lake Worth, Florida, from Carl C. Summerson. This listing was good through June 25, 1982. (See Petitioner's Exhibit 2.) Based upon this contract, the Respondents showed the property to prospective buyers, to include Anthony and Deborah Hedley, the ultimate purchasers of the property. However, after the Hedleys had become interested in the property, the Respondents became aware that Summerson was not the sole owner of the Breezeway Motel. Because of the interest of the Hedleys and the prospects of selling the property, the Respondents sought and obtained an exclusive listing agreement from both owners of the motel, Carl Summerson and Roy Chapin, which was signed on June 14, 1982. As an exclusive listing, this contract supplanted the open listing obtained by Ms. Carroll on May 25, 1982. The Respondents obtained an offer to purchase the Breezeway Motel from the Hedleys on June 16, 1982, which offer was accepted by Summerson and Chapin. This transaction closed, and the Respondents received one-half of the ten percent commission, $33,800. The custom of the profession is that salespersons earn a listing commission on a listing contract obtained by them while they were employed if a contract for the purchase of the property is obtained before the salesperson leaves the broker's employment. The Respondents tendered a "referral fee" of $845 to Ms. Carroll, as opposed to a salesperson's share of the commission which was $5,070. Ms. Carroll has a civil action pending, seeking to obtain payment of the commission.
Recommendation Having found the Respondents not guilty of violating Sections 475.25(1)(b) and (d), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Florida Real Estate Commission dismiss the Administrative Complaint against the Respondents, Jacqueline B. Ousley and Toch of Class Realty, Inc. DONE and RECOMMENDED this 3rd day of October, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 3rd day of October, 1983. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Donald P. Kohl, Esquire 3003 South Congress Avenue, Suite 1A Palm Springs, Florida 33461 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Randy Schwartz, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, Florida 32801 =================================================================
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following pertinent facts are found: Respondent Charles Shane was formerly employed by IREC, Inc. (International Real Estate Consultants). His assigned duties were administrative in nature and included the performance of research and field work pertaining to appraisals. It was not one of his assigned duties to procure appraisals and his salary was not contingent upon the appraisals performed by IREC, Inc. By application dated January 22, 1973, respondent Shane applied to the Florida Real Estate Commission for registration as a real estate salesman. By certificate number 0117007, Shane was registered as a real estate salesman effective December 20, 1973. He is presently registered as a non-active salesman. By letter dated January 9, 1973, on IREC stationary, respondent Shane, signing as Vice President, wrote a letter to John R. Vereen stating that, upon acceptance by Vereen, IREC would conduct a market value appraisal of certain property for a compensation of $2,500.00. This letter bears the handwritten notation "cancelled with no liability 3/5/73." On March 5, 1973, respondent Shane, again signing as Vice President of IREC on IREC stationary, wrote a letter to Mr. Vereen stating "I will conduct a market value appraisal. . ." of the same property as that described in the January 9th letter for a compensation of $2,500.00. The checks in payment of this amount were made payable to respondent Shane individually and not to IREC, Inc. As indicated by Exhibits 6,7,10,11,12 and 13, appraisal reports were submitted to various entities on dates ranging from December 29, 1971, through March 20, 1973. The cover letters are each signed by respondent Shane as Vice- President and by one other person as "M.A.I. Consultant." These reports contain several pages concerning the qualifications of the appraiser. Respondent Shane's qualifications are included. Mr. Edward Waronker, who co-signed five of the six reports listed above, did not write or prepare the reports. It was Waronker's duty as an independent appraiser for IREC to inspect the property and review the appraisal reports prepared. A letter on IREC stationary dated July 23, 1974, from respondent Shane makes reference to a June 19, 1973, appraisal report. In such letter, Mr. Shane states "I have reviewed the referenced appraisal, which was conducted under my direction as of June 19, 1973." As noted above, respondent Shane did not appear at the hearing and therefore no evidence was offered in his behalf. A "petition for mitigation" was filed with the Real Estate Commission stating that respondent did not sign the appraisal reports with any intention of holding himself out as an appraiser or salesman. In summary, said petition states that respondent Shane signed these documents as the person of the corporation and not as a real estate appraiser or broker and that, had he been fully informed of the Florida real estate law, "he would not have continued in the manner that he did." Respondent Richard W. King has been registered with the Florida Real Estate Commission since 1957 and, prior to the instant complaint, has never been cited for a violation of the statutes, rules or regulations governing brokers or salesmen. Respondent King was employed with IREC, Inc. in June of 1973. According to the testimony, the registration of IREC and King was not approved by the Real Estate Commission until October of 1973. From the time that respondent King went to work with IREC, he had effective control and supervision of all appraisals performed by IREC. To King's knowledge, respondent Shane was never involved in the decision-making process surrounding appraisal work, and did not sign appraisal reports after June of 1973.
Recommendation Based upon the findings of fact and conclusions of law recite above, it is recommended that: the registration of respondent Charles Shane be suspended for a period of three (3) months; and the charges relating to respondent Richard King be dismissed. Respectfully submitted and entered this 10th day of September, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION THOMAS M. MURRAY, Petitioner, vs. PROGRESS DOCKET NO. 2709 DADE COUNTY CHARLES SHANE, IREC, INC., CASE NO. 76-844 and RICHARD W. KING, Respondents. /
Findings Of Fact The Defendant was at all material times registered with the Florida Real Estate Commission as a real estate broker. (See: Plaintiff's Exhibit 7). During June, July, and August, 1973, the Defendant acted as a real estate broker in negotiating a real property transaction between Michael Scott Symons and Bonnie Jo Symons as buyers, and William C. McDonald as seller. The Symons made an initial offer to purchase certain real estate owned by McDonald for $50,000. The Symons agreed to assume a first mortgage, to execute a purchase money second mortgage, and to pay $5,000 in cash. This offer was made in the form of a contract to purchase which was executed by the Symons on June 19, 1973. (See Plaintiff's Exhibit 1). At the time that this contract was executed, it was expressly understood between the Symons and the Defendant that $2,000 of the $5,000 which was to be paid by the Symons to McDonald at the time of closing would be in the form of a 1967 Pontiac automobile. The automobile would be delivered to McDonald at the time of closing along with $3,000 in cash. The day after the contract was executed, the Symons delivered the automobile to the Defendant along with the evidence of title that they had in their possession. McDonald rejected the Symons' first offer. He did not wish to take the automobile as a part of the down payment. The Defendant notified the Symons that McDonald had rejected their offer. The Defendant then informed the Symons that he would take the automobile as a part of the commission which would be due to him from McDonald, and that they should offer to purchase the property for $50,000, with the automobile serving as a part of the Defendant's commission. He advised the Symons that for tax reasons McDonald would want the purchase price to be reflected as $48,000, with the automobile not appearing as a part of the transaction even though it would be taken by the Defendant as a portion of his commission. The Symons then made a second offer to purchase the property in the form of a contract to purchase. (See: Plaintiff's Exhibit 3). The purchase price was reflected as $48,000. The Symons agreed to assume an existing first mortgage, an to execute a purchase money second mortgage. Five thousand ninety dollars would be paid by the buyers to the seller at the time of closing. When they executed this agreement, the Symons delivered a $1,000 deposit to the Defendant. (See: Plaintiff's Exhibit 4). The Defendant loaned the Symons $600 in order that they could make this deposit. The Symons gave the Defendant a note for this amount. (See: Defendant's Exhibit 1). When he presented the Symons' second offer to McDonald, the Defendant did not advise McDonald that the automobile would play any part in the transaction. McDonald was not told that the automobile would serve as a portion of the Defendant's commission or that the buyers thought that they were making an offer for $50,000 which included the automobile as a part of the Defendant's commission. McDonald ultimately accepted the Symons offer as reflected in Plaintiff's Exhibit 3. Some time during August, 1973, Mr. Symons and Mr. McDonald had a conversation during which Symons learned that McDonald was not aware that the automobile was playing any part in the transaction, and McDonald learned that the automobile was st 11 a factor in the transaction. The Symons then opted to withdraw from the transaction. (See: Plaintiff's Exhibit 5, Defendant's Exhibit 3). Mr. Symons acknowledged that he was at least in part at fault for withdrawing from the contract, and he, anticipated that his $1,000 deposit would be forfeited. Prior to the time that Symons and McDonald communicated with one another about their respective understandings of the transaction, the Defendant used the Pontiac automobile as a trade-in on another automobile. The Defendant was credited $600 as a trade-in allowance. This automobile transaction was undertaken in the name of Nancy Lee Mann. Ms. Mann was dating the Defendant at that time, and acted as a straw person in the transaction in order to allow the Defendant to obtain financing of a new automobile. (See: Plaintiff's Composite Exhibit 6, and Defendant's Exhibit 2). After the transaction between the Symons and McDonald failed to close, the Defendant distributed $500 to McDonald and $700 to the Symons. (See: Defendant's Exhibits 9 and 12). He also returned the $600 note to the Symons. The automobile was no longer in the possession of the Defendant. The Symons had delivered $1,000 and the automobile to the Defendant. The Defendant had loaned them $600 in order to make the $1,000 deposit. When the transaction failed to close, the Symons received $700 and the promissory note. The Symons apparently agreed, albeit reluctantly to forfeit the $1,000 deposit. They thus received $1,300 for their automobile, which was the approximate market value of the automobile. When the transaction failed to close McDonald received $500, which represented half of the Symons' forfeited deposit. During the course of the transaction, the Defendant received $1,000 and the automobile. Six hundred dollars of the $1,000 was actually his own money. He ultimately disbursed $1,200. He was therefore out-of-pocket $800 on the transaction, but he retained the automobile for which he had already received $600 as a trade-in allowance on another automobile. During June and July, 1974, the Defendant negotiated a real estate transaction involving Richard and Ruth Ann Barnum, Calvin W. and Helen M. Bruce, and himself. The Barnums were seeking to sell their residence through another real estate broker. Their listing was placed on a Multiple Listing Service. On June 19, 1974, the Defendant located a potential purchaser of the Barnums property, Edward E. and Lisabeth L. Sharpe. The Sharpes offered to purchase the property for $25,000. The offer was made in the form of a contract to purchase which was executed on June 19, 1974. The Barnums refused the offer and informed the Defendant that they would accept $26,000. The Barnums crossed out references to $25,000 on the contract that the Sharpes had executed and wrote in $26,000. The Sharpes rejected the $26,000 offer. The Defendant then decided to purchase the property from the Barnums for $26,000. He erased the Sharpes' names from the contract and inserted his own name. (See: Defendant's Exhibit 11). The contract reflects that it was made on June 19, 1974, but it was actually executed by the Defendant on June 20, 1974. The Defendant told the Barnums that he was purchasing the home for himself, and that he might move his father into the home or rent it. The transaction between the Barnums and the Defendant closed on July 2, 1974. (See: Plaintiff's Exhibits 10, 11, 12) Prior to June 19, 1974, the Defendant had acted as a real estate broker in seeking to find a home for purchase by Calvin W. and Helen M. Bruce. He had shown the Bruces through at1east a half dozen homes, but the Bruces were not satisfied with any of them. Some time prior to June 23, 1974, the Defendant left a message for the Bruces at their motel in Fort Myers. The Bruces were not in town and received the message to see the Defendant when they returned. On June 23rd, the Bruces returned to Fort Myers, contacted the Defendant, and were shown the Barnum's home. Mr. Pepper showed them no other homes on that date. The Bruces liked the home and agreed to purchase it from the Defendant for $27,500. The Contract to Purchase was executed on June 24, 1974. The Bruces were not informed that the Defendant had agreed to purchase the home only four days previously, nor that the transaction between the Defendant and the Barnums had not yet closed. The transaction between the Defendant and the Bruces closed on July 2, 1974 only hours after the transaction between the Barnums and the Defendant closed. As a part of the purchase price that he paid the Barnums, the Defendant gave the Barnums a second mortgage in the amount of $5,000. As a part of the purchase price paid by the Bruces to the Defendant, the Bruces agreed to execute a second mortgage to the Defendant in the amount of $5,750. The Defendant at no time advised the Bruces that they were taking the property subject to his second mortgage to the Barnums. The Bruces did not learn of this second mortgage until approximately one year after the transaction closed. After the two transactions closed, the Defendant-received very little cash, but he did receive a small profit. On December 20, 1966, the Florida Real Estate Commission suspended the Defendant's registration as a real estate broker for a period of 60 days, based upon the Defendant's being found guilty of violating Florida Statutes Sections 745.25(1)(a) , (c), (See: Plaintiff's Exhibit 8). On June 3, 1974, the Florida Real Estate Commission suspended the registration of the Defendant as a real estate broker for a period of 90 days, based upon the Defendant being found guilty of a violation of Florida Statutes Section 475.25(1)(a). (See: Plaintiff's Exhibit 9).
