Findings Of Fact William J. Francis, Respondent, is now, and was at all times alleged in the Administrative Complaint, a licensed real estate broker in the State of Florida, having license No. 0388666. Respondent, V R Business Brokers of Lakeland, Inc., is currently, and was at all times alleged in the Administrative Complaint, a real estate broker corporation, having been issued license No. 0224405. At all times alleged in the Administrative Complaint, Respondent Francis was licensed and operating as a real estate broker and sole qualifying broker and officer of Respondent, V R Business Brokers of Lakeland, Inc. Respondent, via Theresa Rosalie Francis, a broker/salesman and wife of Respondent, employed by V R Business Brokers, obtained from Joyce Houser a listing agreement (Exhibit 1) to sell a restaurant called "Bac O' The Mall at a price of $43,000. This listing agreement provided a minimum commission of $6,000 to the broker. Subsequent to obtaining the listing agreement, another employee of V R Business Brokers, James Rice, a real estate salesman, obtained a written offer to purchase "Bac O' The Mall" on January 13, 1983 (Exhibit 2). This offer was made by Robert Stevens and Richard Destin to purchase the business for $30,000, with a $500 deposit and an additional $1,500 down payment when the seller accepted the offer and the balance of $28,000 at closing. Joyce Houser was advised the offer had been received and was requested to come down to Respondent's office to have it presented. Mrs. Houser went to the office of Respondent and was quite upset with the disparity in asking price and the offer. Salesman Rice, who had obtained the offer, urged Mrs. Houser to accept the contract immediately because the business had been losing money and a better offer might not be forthcoming. Mrs. Houser refused this offer and contacted her brother, a real estate broker, who helped her prepare a counteroffer. Prior to this offer being submitted, Mrs. Houser had become unhappy with her dealings with V R Business Brokers due to salesmen bringing clients in at inopportune times to show the business and for failing to maintain secrecy with respect to her employees of the fact that the business was for sale. A prior offer had also been obtained on which Mrs. Houser felt she had been pressured by Respondent to accept; and she had directed all negotiations to be made through her brother, Charles Whitten. The buyers accepted the counteroffer (Exhibit 7) When the counteroffer was accepted, Whitten reminded Respondent that the additional $1,500 was due. When the buyers did not appear the following day with the additional deposit, Respondent, who had agreed to hold the buyers' personal check for $500 to be replaced with a cashier's check for $2,000, apparently became suspicious of the buyers' ability to pay and called the bank on which the check had been written to find out if sufficient funds were on deposit to cover the check. When advised that there were insufficient funds to cover the check, Respondent sent the check to his escrow agent to have the check sent to the bank where, in fact, it was subsequently dishonored. Respondent never advised Mrs. Houser or Charles Whitten that the $500 check bounced or that the buyers had failed to deposit the additional $1,500 required by the contract until after the scheduled date of closing. A few days before the February 15, 1983, scheduled closing date Respondent or his salesman contacted Whitten to solicit Mrs. Houser to finance part of the purchase price. She declined to do so. At the time the initial contract was submitted by Destin and Stevens, Respondent knew these buyers were unemployed engineers and soon thereafter learned they were attempting to borrow the money to finance the deal, and that the banks would not lend them the money they needed. Nevertheless, Respondent attempted to induce the seller to finance the sale of the business when he knew, or should have known, the buyers to be sufficiently poor credit risks they could not obtain financing. When February 15, 1983, passed without the scheduled closing taking place by reason of default on the port of the buyers, Mrs. Houser, on February 18, 1983, wrote to Respondent (Exhibit 5) requesting the earnest money deposit as liquidated damages and a release from the listing agreement which she had been promised. In response thereto, Respondent, by letter dated February 24, 1983 (Exhibit 6), advised Mrs. Houser that the buyers' $500 check was no good and that they had failed to put up the additional $1,500 required by the contract. He agreed to cancel the listing agreement `as soon as this matter is resolved." Mrs. Houser then reported the entire transaction to the Florida Real Estate Commission and these proceedings followed their investigation.
Findings Of Fact Respondent, Curcio Realty, Inc., is a registered corporate real estate broker holding license number 0019070. Respondent, Alan E. Bucchino, is a registered real estate broker holding license number 0011003, and he is an active officer of Curcio Realty, whose business address is 4951 North East 6th Avenue, Miami, Florida. William F. Johnson became an employee of Curcio Realty on April 15, 1974, as a real estate salesman, licensed by the State. In accordance with the custom of the office, Mr. Johnson signed the company's Policy Book which contained specific office policies adopted by Curcio Realty governing the conduct of its business. In May of 1979, Mr. Johnson took his son to see property located at 14430 North East 14th Avenue in Miami for possible purchase. Mr. Johnson's son and his business partner decided to make an offer to purchase, and they nominated an attorney in Miami to act as trustee for them in the transaction. A contract was prepared, and signed by this trustee on May 10, 1979, offering to pay $30,000 for the subject property, for which the seller was asking $36,000. The transaction was conditioned upon the purchaser obtaining financing for 25 years on a minimum of $24,000. Other conditions are not relevant. This offer, together with a $1,000 deposit, was submitted to the seller by Mr. Bucchino, along with another contract for purchase which had been negotiated by another broker. The seller accepted the other contract, instead of the one submitted on behalf of Mr. Johnson's son and his partner, because it was a cash transaction not subject to financing. The $1,000 deposit was returned to the trustee acting for Mr. Johnson's son. However, the parties did not close on the all-cash contract. Thereafter, on June 19, 1979, Mr. Johnson transferred his real estate license from the office of Curcio Realty to another broker's office, and was no longer employed by or associated with Curcio Realty. Between this date and June 29, 1979, Mr. Bucchino attempted to reactivate the May 10 contract. On June 29 he inquired of Mr. Johnson whether his son would still be interested in purchasing the subject property. This was satisfactory. Mr. Bucchino suggested that the parties execute a new offer, but Mr. Johnson preferred to have the May 10 contract updated. The changed contract, now dated June 30, 1979, together with another $1,000 deposit, was resubmitted to the seller. This offer was accepted by the seller on July 19, 1979. The sale was closed on or about October 4, 1979. No real estate commission was paid to Mr. Johnson. This precipitated the complaint which culminated in this proceeding. Although Mr. Johnson's son and his partner both assert that they were acquainted with the subject property by Mr. Johnson, and that it was Mr. Johnson's efforts that resulted in their purchase of this property, these facts are not determinative in the total circumstances surrounding this case. The relationship between the real estate salesman, Mr. Johnson, and the brokers, Mr. Bucchino and Curcio Realty, is governed by the Policy Book referred to above. The Petitioner contends that paragraph 7 on page 5 is applicable, because the subject transaction was a "deal in progress at the time the salesman leaves" the employ of Curcio, requiring division of the commission between the salesman and the broker. However, the May 10 offer, which was submitted while Mr. Johnson was employed by Curcio Realty, did not become a contract by acceptance. Thus, when Mr. Johnson left Curcio Realty on June 19, 1979, there was no transaction pending, no "deal in progress". Paragraph 8 on page 5 of the Policy Book governs this transaction. It provides "Any deals. . .revived through efforts of this organization's salesmen with office prospects, after a salesman has left this office, are to be considered new deals. The departing salesman will have no interest in them. . .". A broker has not earned a real estate commission until both the buyer and the seller have agreed to a transaction. The May 10 contract did not result in any commission payable to anyone. The June 30 contract resulted in an earned commission on July 19 when it was accepted by the seller. After June 19 Mr. Johnson was not employed by Curcio Realty. Accordingly, the terms of the Policy Manual to which Mr. Johnson agreed, particularly paragraph 8 on page 5, bar any obligation to him.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed in this case be dismissed. THIS RECOMMENDED ORDER entered on this 6 day of April, 1981. William B. Thomas Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1981. COPIES FURNISHED: Salvatore A. Carpino, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Tallahassee, Florida 32301 Richard W. Wasserman, Esquire 420 Lincoln Road Suite 324 Miami Beach, Florida 33139
The Issue Whether the application of the Respondent, Robert A. Whittemore, III, for registration should have been denied.
Findings Of Fact The Respondent, Robert A. Whittemore, III, filed an application for registration as a real estate salesman with the Petitioner Commission on April 18, 1978. The application was denied, and Respondent by letter requested an administrative hearing to "prove that I do meet with the qualifications" for licensure. Respondent was sent notice of hearing on two (2) occasions by mail, and the notices were not returned. He did not appear to testify and sent no representative to testify in his behalf. Respondent had been licensed as a real estate broker in New York, New York, which license expired on October 31, 1973. The application submitted by Repondent showed that he was convicted of conspiracy in the third degree by the Supreme Court in the State of New York on August 19, 1976, and of falsely reporting an incident in the third degree on December 5, 1976, and sentenced on June 16, 1976. Thereafter a certificate of relief from disabilities on his real estate license was issued by a justice of the Supreme Court, State of New York, on October 20, 1977. Said certificate was submitted by Respondent at the time of his application for registration. No memorandum of law was submitted by either party involved in this administrative hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Respondent's application for registration be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of August, 1979. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1979. COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Robert A. Whittemore, III 5501 North Ocean Boulevard Ocean Ridge Palm Beach, Florida 33435
Findings Of Fact At all times relevant hereto, respondent, Elliot Rosen Realty, Inc. was a licensed corporate real estate broker having been issued license number 0218821 by petitioner, Department of Professional Regulation Division of Real Estate. Respondent Elliot Rosen held real estate broker's license number 0075258 issued by petitioner and was the qualifying officer of Elliot Rosen Realty, Inc. Respondents Stanleigh M. Franklin and Maria C. Franklin were licensed real estate salesmen in Rosen's office having been issued license numbers 0318042 and 0370308, respectively. The firm is located at 8120 Coral Way, Miami, Florida 33155. On an undisclosed date Robert W. and Carol A. Bush listed for sale with Elliot Rosen Realty, Inc., a residential property located at 8295 Southwest 153rd Street, Miami. The initial asking price was $119,000, but this was later reduced to $112,000. In April 1984, Joseph and Maria Yanes were in the process of selling their home and were consequently seeking to purchase a new residence. Both are educated persons, and Mr. Yanes has a college degree. Mr. Yanes read a real estate advertisement which advertised the Bush's property. They contacted Rosen Realty, Inc. and spoke with Maria Franklin. After inspecting the house with Maria, the Franklins met with the Yanes on April 15, 1985, for the purpose of preparing and executing an offer to purchase the house. Joseph Yanes made clear to Stanleigh Franklin that his primary concern was obtaining a mortgage with monthly payments that did not exceed $1000 per month. Otherwise, he would not be able to purchase the property. Stanleigh was familiar with a new mortgage loan program offered by a local lender (American International Mortgage Company) known as the "7.5 magnet mortgage" which offered a monthly payment for the first three years at a 7.5 percent interest rate. Stanleigh computed the principal and interest payments under this plan to be $711.55 per month. When estimated taxes and insurance were added in the total payment came to approximately $850 per month. He also advised that a mortgage insurance premium would be charged each month, which he estimated to be $50 to $60 per month. This still totaled less than the $960 or $970 which the Yanes stated their existing mortgage to be. The Yanes were told that because of the low interest rate (7.5 percent) during the first 36 months, there would be negative amortization during that period of time. In other words, the principal amount owed would actually increase rather than decrease during the first three years since interest on the note was accruing at a higher rate (13 percent). Finally, Franklin advised the Yanes that a 5 percent down payment was required with this type of mortgage and that their deposit should equal this amount to qualify for the loan. The Yanes did not indicate any dissatisfaction with this type of financing, or that they did not understand how the plan worked, particularly with respect to the negative amortization. They agreed to make an offer of $107,000 on the property, to give a $500 deposit that day, and an additional $4850 later on which equated to 5 percent of the purchase price. The contract itself made no reference to the 7.5 percent financing, but provided only that the buyers would obtain a new first mortgage for the balance owed on the $107,000 purchase price. Throughout these negotiations, there was no misrepresentation of facts by Franklin concerning the mortgage or amount of deposit required. The Yanes' offer was quickly presented by the Franklins to the sellers who accepted the offer within the next few days. The Yanes then gave an additional $4850 deposit around May 1 which was deposited in Rosen's escrow account. On May 7, they filed a loan application with American International Mortgage Company and gave a check in the amount of $185 to have an appraisal made and a credit report prepared. At that time, the loan officer explained to Joseph Yanes in detail how the magnet mortgage program worked and that there would be negative amortization under this plan. The meeting lasted for an hour and a half and Yanes did not express surprise at how the mortgage worked, or that he did not understand its concept. An appraisal was then made, and a credit check run on Mr. Yanes. However, the lender was unable to confirm any credit information on Mrs. Yanes because her employer refused to return the employment verification form. On June 20, 1984, the lender sent a denial notice to the Yanes because of its inability to obtain information regarding Mrs. Yanes. The Yanes made no other efforts to obtain financing on the property. After they executed the contract to purchase, the Yanes engaged counsel in early May to represent them at closing. Their attorney (Lisa Wilson) called all pertinent parties, including the Franklins and Rosen to learn the details of the mortgage. After having the details explained to them again, the Yanes advised counsel that they wished to cancel the contract. On May 23, 1984, Wilson sent a certified letter to Stanleigh Franklin advising that because the financing arrangements had been misrepresented to her clients they were cancelling the contract. She also demanded a return of their deposit plus interest. Just prior to the receipt of the certified letter, Joseph Yanes also telephoned Stanleigh Franklin and demanded a return of his deposit. This was the first time Franklin suspected the deal had gone awry. Shortly after this, the Yanes contacted petitioner to file a complaint against respondents. When Mr. Bush learned that the Yanes were not honoring the contract, upon advice of counsel, Bush made a claim on the $5,350 deposit for breach of contract. Faced with conflicting demands for the deposit, Rosen contacted petitioner to determine how the deposit should be disbursed. The matter was eventually referred by petitioner to its local office in Miami for investigation in October 1984. On November 27, 1984, counsel for petitioner advised Rosen that because of the pending complaint of the Yanes, petitioner could not issue an escrow disbursement order. However, he was told of the remaining two alternatives for resolving the dispute prescribed in Subsection 475.25(1)(d), Florida Statutes. A complaint for interpleader was later filed in circuit court by agreement of counsel for the Yanes, Bush, and Rosen. That complaint is still pending. Rosen, as broker, was never personally involved in the transaction until a complaint with petitioner was filed. He stood to gain no commission on the sale since the Franklins were working on a "100 percent basis" and were to receive the entire commission. Rosen has been licensed for some thirty-one years and has had no prior disciplinary action in all that time.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be DISMISSED with prejudice. DONE and ORDERED this 5th day of June, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 5th day of June, 1985.
The Issue The issues for determination are whether Respondents violated subsections 475.25(1)(b), Florida Statutes by neglecting to inform the agent of a seller that a deposit was not cash; and whether Respondents violated subsection 475.25(1)(e), Florida Statutes, Section 475.22, Florida Statutes and Rule 21V- 10.022, by failing to maintain an office while licensed as an active broker
Findings Of Fact At all times pertinent to the charges, John A. Sirianni was a licensed real estate broker in the State of Florida, having been issued license number 0132568 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, c/o Sirianni Investments, Inc., with a home address of 300 Valley Drive, Longwood, Florida, 32779. Respondent, Sirianni Investments, Inc. was at all times pertinent to the charges a corporation registered as a real estate broker in the State of Florida, having been issued license number 0207206 in accordance with Chapter 475, Florida Statutes. For some undetermined period the corporation license was inactive. At various times, the addresses for the corporation on file at the Division of Real Estate were: 213 West Park Avenue, Winter Park, Florida; 301 Montgomery Road, Suite 301, Altamonte Springs, Florida; and most recently, 147 W. Lyman Avenue, Winter Park, Florida. At all times pertinent to the charges, Respondent John A. Sirianni was licensed and operating as qualifying broker and officer for Respondent Sirianni Investments, Inc. In October, 1986, Ruth Pelegatto, a real estate broker salesman employed by W. W. and Company, had a listing to sell a parcel owned by Xebec, Inc. and located in Apopka, Florida. On October 12, 1986, Respondents submitted to Ruth Pelegatto a written offer to buy from U.S. EquiGrowth Corporation. The offer, reflected on a form contract for sale and purchase, stated a purchase price of $100,000.00; a $1,000.00 deposit to be held in escrow by Sirianni Investments, Inc. "on acceptance"; a $75,000.00 purchase money mortgage; and $24,000.00 balance to close. The offer also included a contingency clause, giving the buyer 60 days from final acceptance to determine the feasibility of developing the site. If the buyer claimed the site conditions were unacceptable, the contract would be null and void. (Petitioner's Exhibit #2) The time for acceptance was October 15, 1986, reflected in paragraph III of the contract. The seller signed the contract on September 22, 1986, after making several changes in its terms. The purchase money mortgage figure was struck through and initialled and the balance to close was changed from $24,000.00 to $99,000.00, and was initialled. The seller, according to Ms. Pelegatto, did not want to "hold any paper." By the time the contract came back, Sirianni had learned that the property was not appropriate for the development. He claims that Ms. Pelegatto knew that, as he had spoken with her prior to her trying to reach him about the counteroffer. Ms. Pelegatto claims that the refusal of the counteroffer was never communicated to her. She does not claim that acceptance was made, and no evidence of such is apparent on the face of the two copies of the contract in the record, one photocopy and one carbon copy. There are initials by the changes, and a date, 9/24/8- (the second digit does not appear on either copy). The initials and date were not explained. The sale to EquiGrowth was not made. Ms. Pelegatto tried unsuccessfully to reach Sirianni on several occasions. He felt she was trying to salvage the deal and did not respond. Sometime in April, 1987, Xebec asked Ruth Pelegatto for the $1,000.00 deposit. She was still unable to reach Sirianni. The deposit, either a check or promissory note according to Sirianni, had previously been returned by him to the prospective buyer. John Sirianni admitted at the hearing and to DPR investigator, Chris Olsen, that the deposit was never placed in trust as the contract was never accepted. Chris Olsen interviewed Sirianni on June 22, 1987, when Sirianni voluntarily responded to his call and came in to the agency office. Sirianni told him he had closed his brokerage office and was working out of his home. The office closed approximately 30 days before Sirianni talked with Olsen.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the administrative complaint against both Respondents be dismissed. Respectfully submitted and entered this 9th day of November, 1988, in Tallahassee, Florida. MARY CLARK 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 9th day of November, 1988. COPIES FURNISHED: Steven W. Johnson, Esquire Darlene F. Keller DPR, Division of Real Estate Executive Director Post Office Box 1900 DPR, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 400 West Robinson Street Orlando, Florida 32801 John A. Sirianni 1740 Carlton Street Bruce D. Lamb, Esquire Longwood, Florida 32779 Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues for determination in this proceeding are whether Respondent violated Sections 475.25(1)(b), (d), and (e), Florida Statutes, 1/ through culpable negligence or breach of trust in a business transaction; by failing to account or deliver trust funds; and by failing to timely notify the Florida Real Estate Commission of a deposit dispute or to implement remedial action; and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate broker under license number 0037920. The last license issued to Respondent was issued as a broker at Heath Realty, 4864 S. Orange Avenue, Orlando, Florida. On May 18, 1993, Mr. Anthony Rodgers and Ms. Jill Rodgers (the "buyers") entered into a contract to purchase real property from Ms. Norma A. Cash (the "seller"). The buyers entrusted Respondent with a total earnest money deposit of $1,000. The transaction failed to close. On July 8, 1993, Respondent timely notified Petitioner in writing that there were conflicting demands for the earnest money deposit and a good faith doubt regarding the deposit. However, Respondent failed to institute one of the settlement procedures described in Section 475.25(1)(d)1. until legal proceedings between the buyer and seller were amicably settled approximately seven months later. Respondent failed to institute a prescribed settlement procedure in a timely manner even though Petitioner advised Respondent in letters dated July 26, 1993, and September 9, 1993, of the action Respondent should take. On February 9, 1994, Respondent finally requested an escrow disbursement order in accordance with Section 475.25(10(d)1. The escrow deposit was paid to the seller pursuant to the agreement of the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 475.25(1)(b), 475.25(1)(d)1., but guilty of violating Section 475.42(1)(e) and Florida Administrative Code Rule 61J2-10.032. It is further recommended that the Final Order place Respondent on probation for a period of one year and, during the period of probation, require Respondent to complete courses in broker management not to exceed eight credit hours. RECOMMENDED this 8th day of February, 1995, in Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Clyde J. Spindler, is a licensed real estate broker having been issued license number 0185572 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). Spindler is the broker of record for a real estate firm known as Allmac Realty, 5331 Commercial Way, Spring Hill, Florida. When the events herein occurred, respondent, Robert F. McCarthy, held broker license number 0415199 issued by the Division. Respondent, Jacqulyn B. McCarthy, is a licensed real estate salesperson having been issued license number 0482611 by the Division. On January 15, 1991, the Florida Real Estate Commission (Commission) entered a final order suspending Robert F. McCarthy's broker license for three years, effective March 7, 1991. At that time, McCarthy operated a real estate firm known as Allmac Realty, Inc., t/a Allmac Realty, at 4040 Commercial Way, Spring Hill, Florida. The same order suspended the corporate broker's license for three years. At the time the order was entered, Jacqulyn McCarthy was a salesperson in her husband's firm. Although the suspension order was not served on McCarthy until February 21, 1991, he learned on January 15, 1991, that his license was going to be suspended. After McCarthy disclosed this fact to Spindler the same day, Spindler agreed to operate a real estate firm using the name of Allmac Realty. Thereafter, Spindler registered as a broker effective February 18, 1991, for a new firm known as Allmac Realty at 5331 Commercial Way, Spring Hill, Florida. Upon the advice of his attorney, on March 4, 1991, Robert McCarthy made application with the Division for registration as a broker-salesman with the new Allmac Realty. Because he believed that this action was legal, Robert McCarthy had no intent to circumvent the action taken by the Commission. Apparently unaware of the suspension order, the Division approved the registration effective March 6, 1991, or the day before the suspension of the broker's license became effective. Also, his wife, Jacqulyn McCarthy, placed her license with the new firm the same date. The broker of record of a firm is required to review, sign and date each monthly reconciliation statement of the firm. Robert McCarthy, who held a valid broker's license until March 1991, did so for the January and February 1991 statements. This responsibility was then given to Spindler for all subsequent statements. After receiving a complaint from the Hernando County Board of Realtors, a Division investigator, Marjorie F. May, visited Allmac Realty's office on October 7, 1991, to conduct a routine audit. As a result of her audit, May learned that Robert McCarthy was using his license with the firm even though it had been suspended since March 7, 1991. She also learned that Jacqulyn McCarthy, a salesperson, was the only signatory on the firm's escrow account while the broker of record (Spindler) was not. Rule 21V-14.010(1) requires that the broker of record be a signatory on the account. By failing to be a signatory on the account, Splinder contravened this rule. It should be noted that after being told of this omission, Spindler immediately corrected this deficiency. It should also be noted that Spindler was a signatory on two other firm accounts and was under the impression that he had properly signed for all necessary bank accounts. The audit further revealed that on August 30, 1991, a prospective tenant gave Jacqulyn McCarthy a $375.00 check as a security deposit on a rental house. Before McCarthy was able to deposit the check in the firm's escrow account, the tenant advised Jacqulyn that she was not going to rent the property and asked that the check be returned. McCarthy promptly returned the check to the client. However, during the time interval between receiving the check and the subsequent request for refund, McCarthy wrote herself a $200.00 check from the firm's operating account as her share of the commission for securing the rental. There is no evidence that any imbalance in the escrow account occurred as a result of this transaction. There is also no evidence that McCarthy violated any Division rule by failing to immediately deposit the check in the firm's escrow account since the check was returned to the client the same day that it was written. During her examination of the firm's monthly statements, May discovered that even though Spindler had signed the monthly statements, he had failed to date the same. This omission contravened a requirement in Rule 21V-14.012(2), Florida Administrative Code, that he "date the monthly statement- reconciliation". However, this was an oversight on Spindler's part and was not an intentional violation of the rule. There was no intent on the part of Robert McCarthy to circumvent Division rules or the prior order of suspension. Indeed, he acted on his counsel's advice and, after learning that his continued participation as a salesman was improper, immediately stopped all real estate activities. At that point in time, and after being notified by McCarthy, the Division also cancelled the previously issued broker-salesman registration. Spindler has been a real estate broker since 1977 and is now semi- retired. He visits Allmac's offices two or three times per week but does not actively solicit listings or sales. This is because of his practice not to compete with salespersons in his firm. However, he is advised of all decisions that must be made on behalf of the firm and is an active participant in those decisions. There is insufficient evidence to support a finding that Robert McCarthy was the de facto broker of the firm after Spindler registered as its broker of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered finding Clyde J. Spindler guilty as charged in Counts VIII and IX and Jacqulyn McCarthy guilty as charged in Count VI. All other counts should be dismissed. It is further recommended that the licenses of those two respondents be placed on probation for a period of one year. RECOMMENDED this 10th day of June, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1344 Petitioner: 1-4. Accepted in finding of fact 1. 5-6. Accepted in finding of fact 2. 7-8. Accepted in finding of fact 3. Accepted in findings of fact 3 and 8. Accepted in finding of fact 5. 10a. Accepted in finding of fact 5. 10b. Accepted in finding of fact 7. 10c. Accepted in finding of fact 6. Accepted in finding of fact 9. Accepted in finding of fact 3. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate P. O. Box 1900 Orlando, FL 32802-1900 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Steven W. Johnson, Esquire O. Box 1900 Orlando, FL 32802-1900 Mr. Clyde J. Spindler 12156 Fairway Avenue Brooksville, FL 34613 Mr. Robert F. McCarthy 5331 Commercial Way Spring Hill, FL 34606 Ms. Jacqulyn B. McCarthy 5331 Commercial Way Spring Hill, FL 34606
The Issue The issues are whether Respondent has violated Florida Administrative Code Rule 61J2-14.010(1) and section 475.25(1)(e) and (k), Florida Statutes, by failing to place immediately into escrow a security deposit of $5482; violated section 475.25(1)(u) by not being involved with the daily operations of Advantage International Realty, Inc. (AIR), by being hired to qualify AIR and receiving payment from AIR, and failing to direct, control or manage Jennifer Briceno, a sales associate employed by Respondent, while she provided real estate services to two individuals; and violated section 475.25(1)(d)1. by failing to refund $5308 upon demand by Mr. Mansour and Ms. Haddad on December 20, 2011. If so, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed real estate broker, holding license numbers 69234 and 3093422. He has never been disciplined. Licensed as a sales associate since 2000, Respondent served as a sales associate with three brokers. Licensed as a real estate broker in 2002, Respondent served as a broker associate with two brokers until, in August 2002, Respondent served as the broker for his first real estate brokerage. He served as a broker for two brokerages, much of the time simultaneously, from 2002-05 and 2007-09. For the last five months of 2008, Respondent worked as a broker sales associate for a third brokerage, and, from 2009-11, Respondent was registered as a sole proprietorship broker. From November 14, 2011, through January 6, 2012, Respondent served as the broker for AIR. On November 7, 2011, Respondent was listed as a director of AIR with the Department of State, Division of Corporations. AIR became licensed as a Florida real estate brokerage on November 14, 2011, holding license number 104302. Respondent was the qualifying broker of AIR from November 14, 2011, to January 6, 2012. No longer a brokerage after Respondent resigned as its qualifying broker, AIR resumed operations as a brokerage on March 1, 2012, when Jennifer Briceno served as the qualifying broker. She served in this capacity until March 4, 2013, at which point Petitioner suspended the licenses of AIR and Ms. Briceno by separate emergency orders. Ms. Briceno was first licensed as a sales associate in 2008. She served as a sales associate with an unrelated corporation in Tamarac, Florida from May 28, 2008, to October 24, 2011. Her license was inactive until November 14, 2011, on which date she became a sales associate with AIR. On February 17, 2012, she became licensed as a broker and served as a broker associate with AIR until March 1, 2012, at which time she served as its qualifying broker. As noted in paragraph four, from January 6 to March 1, 2012, AIR's brokerage license became invalid due to the lack of a qualifying broker. As noted in paragraph five, Ms. Briceno served at AIR as a sales associate from January 6, 2012, and then as a broker associate from February 17, 2012, until March 1, 2012--an eight-week period during which AIR's brokerage license was invalid due to its lack of a qualifying broker. On November 7, 2011, Respondent was listed as a director of AIR with the Department of State, Division of Corporations. At no time was Respondent ever a signatory on the operating account of AIR. Jackie and Sam Haddad and Morris Mansour are residents of Canada and friends. They decided that they wanted to enter into a lease of a residence in Fort Lauderdale for a vacation during the winter of 2011-12. They agreed that Mr. and Ms. Haddad would occupy the residence for two months, and Mr. Mansour would occupy the residence for the ensuing two months. For the sake of simplicity, they agreed that Mr. Mansour would take in his name the lease for the entire four months, which was to run from December 15, 2011, through April 15, 2012. Ms. Haddad found the subject property on the Internet and got in touch with Ms. Briceno at an unspecified point in time. At some point, Ms. Briceno sent to Mr. Mansour a blank Agreement to Enter into a Lease and asked him to complete, sign, and return the form to her with a check for the entire rent. Mr. Mansour objected to paying the entire rent and asked that he be allowed to pay half at that time and half upon occupancy. Ms. Briceno agreed. Accordingly, on November 12, 2011, Mr. Mansour wired $5500 to AIR and faxed to Ms. Briceno a completed Agreement to Enter into a Lease. AIR did not have an escrow account. Although there was a listing broker for the rental property, Ms. Briceno did not give the deposit check to her. Nor did Ms. Briceno present the funds to AIR's qualifying broker. It appears that Ms. Briceno conducted this real estate business and received the funds prior to AIR's obtaining a qualifying broker. In any event, it appears that Ms. Briceno deposited the funds in AIR's operating account. However, on November 12, 2011, Ms. Briceno faxed the signed Agreement to Enter into a Lease to a sales associate of the listing broker. The net of $5482 posted on AIR's general operating account on November 16. On the same day, AIR's bank statement shows a "counter debit" of $5010. From November 16 through the end of January 2012, this account never had sufficient funds to repay the $5500 or net $5482. After receiving the offer to lease from Ms. Briceno, the sales associate of the listing broker spoke with the owner and learned that the cost of short-term insurance precluded a lease for less than one year. By email dated December 1, the sales associate informed Ms. Briceno that the owner would not accept the offer. After not hearing from Ms. Briceno for some time, Ms. Haddad and Mr. Mansour tried to reach Ms. Briceno, but repeated calls to her business and cellphone numbers went unreturned. Mr. Mansour, who intended to occupy the subject property first, finally contacted the sales associate of the listing broker and learned that the offer had not been accepted. At some point, Darwin Briceno, Ms. Briceno's husband, became involved. By email to Ms. Mansour dated November 29, 2011, Mr. Briceno sent a release covering a refund of $5308, net wire fees and an application fee. On December 8, Ms. Haddad sent an email to someone at AIR stating that they were still waiting for their refund of $5308. Getting no response and having learned Respondent's name in the interim Ms. Haddad re- sent the December 8 email to the administrator of AIR-- attention: Respondent--and warned that they would retain counsel if they did not hear from Respondent within 24 hours. No one heard from Respondent, who cashed AIR checks on January 31 and May 1 in the amounts of $1610 and $3225, respectively. On February 24, 2012, Mr. Briceno sent Mr. Mansour an AIR check in the amount of $5308, but it bounced. The Haddads and Mr. Mansour have never recovered any of their deposit. During the investigation, Respondent admitted to Petitioner's investigator that he was not involved with the day- to-day operation of AIR, and he did not know anything about how AIR had handled the money that Mr. Mansour had sent. Respondent specifically admitted that he was a "broker for hire" at AIR, meaning that he had rented his broker's license to qualify AIR as a real estate brokerage. Respondent's lack of involvement in the business of AIR is confirmed by Karrell Brett, whom Mr. Briceno hired, on behalf of AIR, as a sales associate, as of December 9, 2011, Ms. Brett interviewed with Mr. Briceno, not Respondent. While employed by AIR, Ms. Brett did not know Respondent and believed her broker was Mr. Briceno. Although Ms. Brett decided on her own to advise her clients to deposit any escrow funds with a title company, she never received any instruction from Respondent to deposit escrow funds with a title company. Respondent never made any attempt to supervise any sales associate or other employee of AIR in the conduct of real estate business on behalf of the corporation that Respondent had qualified as a real estate brokerage. Respondent had been the qualifying broker for two days when the deposit was posted to AIR's account; he was responsible for AIR's failure to account for this money from the point of deposit forward until his resignation. Likewise, Respondent had been the qualifying broker for about six weeks when he received the latter of Ms. Haddad's emails demanding a refund of the deposit. Respondent did not ensure that AIR refunded the deposit at that time.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of Counts 2, 3, and 4, dismissing Count 1 as duplicative of Count 2, and revoking Respondent's real estate broker's license. DONE AND ENTERED this 10th day of September, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2013. COPIES FURNISHED: Nancy Pico Campiglia, Esquire Your Towne Law, P.A. 5465 Lake Jessamine Drive Orlando, Florida 32839 Daniel Brackett, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darla Furst, Chair Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, N801 Orlando, Florida 32801
Findings Of Fact The Petitioner is an agency of the State of Florida charged with the responsibility to license and regulate the licensure standards of real estate brokers and salespersons in the State of Florida and with prosecuting Administrative Complaints against the licensure status of those persons for alleged violations of the various provisions of Chapter 475, Florida Statutes (1991), and the rules promulgated thereunder. The Respondent at all times material hereto was a real estate broker- salesperson operating and licensed in the State of Florida having been issued license number 0162601. The last license issued the Respondent was effective on September 30, 1991 and accorded him the status of a "non-active broker" with an address at 5622 Thomas Drive, Panama City, Florida 32408. In 1987, Barbara Jean Parmer, also known as Barbara Jean Withers (hereafter Barbara Parmer), responded to a newspaper ad and rented a residential property from the Respondent. She gave the Respondent a damage deposit of approximately $395.00. Subsequent to renting the property, she expressed an interest in buying it from the Respondent and was advised by the Respondent that she could seek financing from his lender or she could make payments directly to the Respondent; and when he was fully paid, he would transfer the deed to her and pay off the existing first mortgage. This was the first occasion she had ever attempted to purchase a home. The Respondent told Barbara Parmer that the existing mortgage balance was $29,000.00 and that to sell her the property, he wanted a $5,000.00 down payment and $12,000.00 in "rent" for a total sales price of $46,000.00. In effect, the so-called payments would be payments toward purchase of his equity in the home. On October 9, 1987, the Respondent and Barbara Parmer executed a "Receipt for Deposit-Offer to Purchase-Contract for Sale" (contract) reflecting a $5,000.00 earnest money deposit for property located at 335 Gardenia Street, Panama City, Florida. On that day, Barbara Parmer gave the Respondent check number 108 for $5,000.00 as the down payment on the house. He cashed that check on October 12, 1987. The Respondent drafted the contract at issue and did not advise Barbara Parmer to have an attorney review the document. Barbara Parmer testified that she trusted the Respondent, in effect, because he was a real estate licensee. When she signed the contract and gave the earnest money deposit or down payment, she understood that she was contracting to purchase the property from the Respondent. Sometime after signing the contract and the tendering of the earnest money deposit, Barbara Parmer (then Withers) married David Parmer. Subsequent to the signing of the contract and the payment of the earnest money deposit, the Respondent advised the Parmers that he was getting divorced. He told them he did not want his wife to gain possession of the property and so suggested that Barbara Parmer go to Sun Bank to have the property transferred into her name, in other words, by re-financing the house with Sun Bank and thus paying off the existing first mortgage and any equity still owed the Respondent. After the Respondent told the Parmers about his impending divorce, Mr. Parmer asked the Respondent to return the $5,000.00 earnest money deposit. The Respondent advised that if he sold the house, he would return the deposit, which was being held in an account drawing interest, according to the Respondent. He also represented that he would not refund any of the money expended by them for improvements because he had not requested that any of the improvements be made. He had apparently taken the position in entering the arrangement with Barbara Parmer that it was a sale of the property under a "contract for deed" arrangement whereby title would pass only after his purchase price had been paid. In any event, Barbara Parmer went to Sun Bank and was advised by Loan Officer, Cindy McNeal, that the documents entered into between Barbara Parmer and the Respondent regarding purchase of the property were legally flawed in the opinion of Ms. McNeal and that Barbara Parmer should seek an attorney's advice. Sun Bank declined to refinance the property because Mr. Parmer was then unemployed due to an accident and was only receiving income from worker's compensation and no salary. After the conversation with the representative of Sun Bank, Barbara Parmer called Great Western, the holder of the first mortgage executed by the Respondent, to inquire as to the balance due on that first mortgage. Barbara Parmer received a document from Great Western dated November 13, 1990 indicating that the balance on the mortgage was approximately $33,000.00. In 1987, when she contracted with the Respondent to purchase the property, the Respondent had told her that the balance was approximately $29,000.00. The first mortgage was apparently an adjustable rate mortgage and either the represented $29,000.00 figure was inaccurate or the mortgage was in negative amortization or both. The Respondent never advised the Parmers of any negative amortization situation. Between October 9, 1987 and March or April of 1991, Barbara Parmer paid the Respondent between $400.00 and $500.00 per month toward purchase of the property. The checks for the monthly payments were payable to Respondent Melvin J. Powell and were negotiated by Powell. At the direction of the Respondent, the payments were made at the office of Sun Spot Realty. During this time, the Respondent's licensure was located and registered with Sun Spot Realty. The variation in the monthly payment was because the Respondent advised Barbara Parmer that the monthly payment on the first mortgage held by Great Western was $200.56 and that anything she paid over that amount would go toward the $12,000.00 equity she owed the Respondent pursuant to their agreement. Some months she paid different amounts over and above the amount represented by the monthly payment on the Great Western first mortgage. The Respondent gave Barbara Parmer a ledger sheet showing the dates she made payments on the property, the amount that went to Great Western to retire the first mortgage, and the amount that went to the Respondent toward the $12,000.00 second mortgage representing his equity, as well as the amounts contributed to interest, taxes, and insurance. During the approximately three and one-half years that she lived in the house, she made improvements to the property, including but not limited to: landscaping the front and back yards, pouring a foundation, erecting a metal shed, repairing the roof, painting the interior and exterior, replacing the walls and floor in the bathroom, wallpapering and finishing the kitchen, and installing a new dishwasher and a new hot water heater. Respondent never expended any funds for upkeep of the property during the time the Parmers occupied the house. The Parmers spent at least $5,000.00 on improvements to the property they were purchasing from the Respondent. The Respondent told them then to make whatever improvements they wished because the house was theirs. The Parmers would not have spent the money on the improvements had they not believed that they were purchasing the property. After attempting to obtain financing from Sun Bank, Barbara Parmer contacted Attorney Glenn Hess, who sent a letter to Respondent's counsel regarding Barbara Parmer's concerns. Prior to seeing Attorney Hess, the Respondent had admonished Barbara Parmer not to see an attorney, that the matter could be settled amicably between them, and he threatened to sue her if she did contact an attorney about her concerns. The Respondent told Mr. Parmer that Barbara Parmer had a legal contract to purchase the property and warned against them seeking legal advice by threatening to sue them for breach of contract if they did so. Attorney Hess advised Barbara Parmer that it would be uneconomical to file a lawsuit against the Respondent. Despite demand for return of the earnest money deposit, the Respondent never returned the deposit nor did he ever compensate the Parmers for the funds they expended on improvements to the property. They vacated the property on advice of their attorney. The Respondent never gave notice to the Parmers that he was claiming any of their funds for damage to the property or for breach of contract. When they vacated the property, there was no damage to the property other than a five-inch hole in one bedroom wall. Within two months of the Parmers moving out, the Respondent rented the property to another tenant for almost $100.00 per month more than the Parmers had been paying. On the advice of Attorney Hess, the Parmers filed a complaint against the Respondent with the Bay County Board of Realtors, Inc. Thomas S. Newbauer has been a licensed real estate broker since 1973 and serves as chairman of the Professional Standards Committee (hereafter Committee) of the Bay County Board of Realtors. The Committee hears cases and renders decisions on allegations of violations of the Board of Realtors' code of ethics. In September, 1991, Mr. Newbauer served as a member of the panel appointed by the Committee in considering the complaint filed by the Parmers against Respondent. A hearing was held by the appointed panel to consider the complaint filed by the Parmers against the Respondent. The Respondent was notified of the hearing and appeared and testified. On September 30, 1991, the ethics hearing panel of the Committee filed a decision regarding the Parmer complaint against the Respondent and determined that the Respondent had violated three articles of the realtor code of ethics and further that there might be grounds for investigation by the Florida Department of Professional Regulation. On October 1, 1991, Mr. Newbauer sent a letter to the Board of Directors of the Board of Realtors informing them of the determination of the panel of the Committee. The determination by the panel that the Respondent had violated the code of ethics was upheld by the Board. Paul R. Bratton, III has been a real estate investigator with the Department of Professional Regulation for some nine years. The Respondent told Mr. Bratton that he had kept the $5,000.00 earnest money deposit because the Parmers had breached the contract.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is RECOMMENDED that the Respondent be found guilty of having violated Section 475.25(1)(b), Florida Statutes, and that his Florida real estate license be suspended for a period of one year, that he be accorded a formal written reprimand, that he complete 60 hours of post-licensure continuing education for brokers within three years from the date of the Final Order entered in this cause, and that he pay a fine of $1,000.00 to the agency within 30 days of the filing of the Final Order in this cause. DONE AND ENTERED this 13th day of May, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3751 Petitioner's Proposed Findings of Fact 1-46. Accepted. Respondent's Proposed Findings of Fact The Respondent filed no separately-stated findings of fact but rather a one-page "Proposed Recommended Order" merely stating the conclusions that the Respondent was not guilty of the charges in Counts I and II of the Administrative Complaint and the statutes he was charged with violating. COPIES FURNISHED: Ms. Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate P.O. Box 1900 Orlando, FL 32802-1900 Jack McRay, Esq. General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Janine B. Myrick, Esq. Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900 Melvin J. Powell 2610 Dade Panama City, FL 32408 Melvin J. Powell 5622 Thomas Drive Panama City, FL 32408
