Findings Of Fact At all times here involved Respondent was registered as a real estate broker with the FREC and was an active firm member of Realcor, Inc., a registered corporate broker. During the latter part of 1975 Realcor was the sales agent for a condominium development at Fort Lauderdale, Florida. In October 1975 Edward J. Briglia visited the condominium preparatory to buying a unit and talked to and was shown around the condominium by Nicholas Polizzi, a broker-salesman for Realcor. Upon leaving, Briglia advised Polizzi that he was returning to his home in the northern United States and if he decided to buy would call Polizzi. Shortly thereafter, Briglia telephoned the real estate office and talked to Constant Cholvin, a salesman, who advised Briglia that Polizzi was no longer associated with Realcor and, when Briglia said he was ready to buy, offered to send him a contract. Cholvin wrote one or two letters, drafted the contract to purchase and talked to Briglia by phone two or three times. He did not appear at the closing and never had personal contact with Briglia. Before Briglia closed his purchase the sale of the condominium was turned over to another broker and most of Briglia's contacts after first signing the contract were with the other firm. The contract was changed to another unit before the contract was finally closed and Briglia obtained occupancy. When the commission earned by Realcor on the sale was paid, Respondent was aware of the participation by Cholvin and Polizzi in the sale to Briglia, and when Cholvin demanded payment of the entire salesman's commission, Respondent told him to get together with Polizzi and agree to a settlement of the commission (Exhibits 6 and 8). Thereafter the communications between Polizzi, Cholvin and Respondent deteriorated due to the latter being out of state a great deal plus some difficulty in Respondent receiving mail that was supposedly forwarded to Respondent from Florida. Respondent acknowledged that he received information from Polizzi that he had agreed to a 50-50 commission split with Cholvin but never received Cholvin's acquiescence to such division of the commission. Cholvin averred that he responded to Exhibit 8 agreeing to accept the division of the commission with Polizzi but never heard further from Respondent until the week of the hearing. After the hearing had been scheduled, Respondent, presently residing in North Carolina, forwarded the commission to his son in Delray Beach to divide between Polizzi and Cholvin and obtain their releases. This was accomplished immediately prior to the commencement of this hearing. During all time here involved the commission due the salesman on the sale to Briglia remained in escrow.
Findings Of Fact Florida Real Estate Commission is a licensing and regulatory agency charged with the duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, and Chapters 120, 455 and 475, Florida Statutes, and their implementing rules. Respondent Louis Diabo is now and was at all times material hereto a licensed real estate broker holding license number 0146400. The last license issued was as a broker in limbo with a home address of Post Office Box 2386, Marathon, Florida 33050. On or about July 13, 1988, Ms. Diabo solicited and obtained a one (1) year exclusive right to sell agreement from Anthony and Milagros P. Bonachea, as owners, to sell vacant land located in the Florida Keys, further described as Lot 11, Block 16, Coco Plum Beach Subdivision. On or about March 13, 1989, Ms. Diabo solicited and obtained a contract for sale and purchase of Lot 11, Block 16, Coco Plum Beach Subdivision, between Duane W. Lewis and Helen F. Lewis, as buyers, and Anthony and Milagros P. Bonachea, as sellers, for a total price of $34,900. Ms. Diabo drafted the contract for sale and purchase. In its paragraph VII, "Restrictions, Easements, Limitations," the buyer accepted title subject to zoning, restrictions, prohibitions and other requirements imposed by governmental authority, but Ms. Diabo added that nothing would prevent use of the property for the purpose of "single family" housing. As a real estate professional and as the listing agent Ms. Diabo was aware that she was under a duty and an obligation to know the correct zoning, restrictions, prohibitions and other requirements imposed by governmental authorities on the property she listed for sale. She also knew that there was uncertainty about whether county development regulations under consideration might require the buyer to obtain transferrable development rights from other property owners in the Keys to build on the vacant lot being sold to Dwayne and Helen Lewis. Ms. Diabo owed Mr. and Mrs. Lewis a duty and they reasonably expected Ms. Diabo to inform them about governmental restrictions that might limit the use of the real property as a single family homesite. The transaction closed on or about April 7, 1989. Subsequent to closing, Mr. & Mrs. Lewis learned that they would have to purchase from $9,000 to $18,000 worth of transferable development rights (TDRs) in order to build on the vacant lot they bought through Ms. Diabo. Ms. Diabo had not explained to Mr. and Mrs. Lewis that they might be required to buy transferable development rights from another landowner to build on their lot, but there is no proof that such restrictions were effective at the time she dealt with the Lewises. There is no evidence in the record showing when the requirement to obtain transferrable development rights went into effect. As a consequence, it is not possible to determine whether Ms. Diabo failed to disclose to Mr. and Mrs. Lewis a zoning or use restriction in effect at the time of their purchase while she had asked Mr. Lewis to check on the zoning with the county building official, this did not relieve her of her own duty to investigate under Paragraph VII of the contract, and tell the purchasers of any limitations on building a single family home on the property. Petitioner failed to demonstrate, however, that any restrictions existed as of the time of the closing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued and filed by the Florida Real Estate dismissing the Administrative Complaint DONE and ENTERED this 4th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 4th day of February, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-6140 All but proposed paragraph 12 have been accepted and used, with appropriate editing, in this Recommended Order. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900 Louise Diabo, pro se 3015 Seville Street Apartment 14 Fort Lauderdale, FL 33304 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
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 At all times material hereto, Respondent Philip Marzo was a real estate broker licensed under the laws of the State of Florida, holding license No. 0217167; and Respondent All Cities Realty, Inc., was a real estate brokerage corporation licensed under the laws of the State of Florida, holding license No. 0217166. At all times material hereto, Respondent Marzo was the qualifying broker for Respondent All Cities Realty, Inc. On May 9, 1981, Gladstone Keith Russell entered into a Service Agreement with All Cities Realty, Inc. Pursuant to the terms of that Agreement, Russell paid $75 in cash to Respondent All Cities Realty, Inc., as an advance rental information fee in exchange for which All Cities Realty, Inc., agreed to provide Russell with listings of available rentals. On or about May 13, 1981, Respondents provided to Russell one listing, which listing was not suitable to Russell. No other listing information was ever provided by Respondents to Russell. Russell obtained his own rental within thirty days from the date of the Service Agreement. This rental was not obtained pursuant to any information supplied to him by Respondents. Within thirty days of the date that All Cities Realty, Inc., contracted to perform real estate services for Russell, Russell telephoned Respondent All Cities Realty, Inc., to demand a return of his $75 deposit. The salesman who took Russell's advance fee was no longer employed at All Cities Realty, Inc., and Russell spoke with Respondent Marzo. Although Russell demanded a refund of his money, Respondent Marzo did not make a refund to Russell. When Russell spoke with Marzo on the telephone, Marzo, instead of returning Russell's money, used delaying tactics and attempts to keep from making the refund. Since his telephone calls proved unsuccessful, Russell returned to the All Cities Realty, Inc., office to obtain a refund from Marzo. Upon arriving at the office, Russell found that All Cities Realty, Inc., had gone out of business, and he was unable to locate Respondent Marzo. Russell has never received a refund of his $75 advance fee paid to the Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Default be entered against Respondents, Philip Marzo and All Cities Realty, Inc., and that a final order be entered finding Respondents, Philip Marzo and All Cities Realty, Inc., guilty of the violations charged in the Administrative Complaints and revoking their real estate licenses. RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 August, 1982. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Philip Marzo 2920 Missionwood Avenue, West Miramar, Florida 33025 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Herman J. Vis is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0475507 in accordance with Chapter 475, Florida Statutes. The last license issued was a broker percentVestige International Services Corp., 654 Madrid Drive, Poinciana, Kissimmee, Florida 34758, a dissolved Florida corporation. On April 6, 1992, the Division of Land Sales filed a Notice to Show Cause directed to Respondent for violations of Chapter 498, Florida Statutes. Respondent admitted the violations and requested an informal hearing, pursuant to Section 120.57(2), Florida Statutes. Following an informal hearing, on July 30, 1992, the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes entered a Final Order directed to the Respondent which found Respondent had violated Sections 498.023(1) and (2), Florida Statutes and imposed a fine of $2,500 and administrative costs of $1,500 for a total of $4,000 to be paid by him within 45 days from the date of the order. Respondent failed to comply with the Final Order and the Division sought and obtained a Final Judgment in the Second Judicial Circuit of Florida. Following notice and an opportunity to be heard, the Final Judgment, dated September 28, 1993, directed Respondent to comply with the Final Order and pay an additional civil penalty of $1,000. Respondent has a duty imposed by law to pay the civil and administrative fines and costs and has failed to do so. As of the date of this Order, Respondent has paid neither the $2,500 civil penalty nor the administrative cost of $1,500. The civil judgments in favor of the Petitioner have not been satisfied. Respondent's explanation of his misunderstanding of the law and his good intentions does not relieve him of his obligation to comply with the Final Order and Final Judgment.
Recommendation Based on the foregoing, it is RECOMMENDED as follows: The Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b) and (e), Florida Statutes, as charged in the Administrative Complaint. The Final Order should further direct that all of Respondent's real estate licenses, registrations, certificates and permits, be suspended for a period of five (5) years or until such time as Respondent satisfies the judgments in favor of the Florida Department of Business and Professional Regulation, Division of Land Sales, whichever occurs first. Should Respondent satisfy the said judgments within the time allowed, then Respondent's real estate licenses, registrations, certificates and permits, should thereafter be placed on probation for a period of one (1) year with such terms and conditions as the Commission may deem appropriate and should include the payment of a five hundred dollars ($500) administrative fine to be paid by the Respondent within his probationary period. Should all said judgments and fines not be satisfied within the above time allowed, then all Respondent's real estate licenses, registrations, certificates and permits shall be, in accord with the Commission's penalty guidelines, permanently revoked. DONE and ENTERED this 25th day of May, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 25th day of May, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-7 Respondent's proposals. Respondent submitted, in letter form, a restatement of the testimony of witnesses or disputation of that testimony. Said comments cannot be ruled on individually, but have been reviewed and considered. COPIES FURNISHED: James H. Gillis, Esquire Florida Department of Business and Professional Regulation Division of Real Estate Legal Section - Suite N 308 Hurston Building North Tower 400 West Robinson Street Orlando, Florida 32801-1772 Herman J. Vis (pro se) 654 Madrid Drive Kissimmee, Florida 34758 Darlene F. Keller Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact The Defendants, Barry Shelomith and Isaac Shelomith, son and father, respectively, were, during times material to the allegations filed herein, registered with the Commission as real estate salesmen with Alan Leavitt, a registered real estate broker, who maintains offices at 1110 N.E. 163rd Street, Suite 345, Miami Beach, Florida 33162. Defendant Barry Shelomith sometimes identifies himself as a "Mr. Barry", also being publicly known by such pseudonym, and Defendant Isaac Shelomith sometimes identifies himself as "I.B. Shelly" and is also publicly known by that pseudonym. During the period between March 15, 1975 and November 15, 1975, the Defendants, Barry Shelomith and Isaac Shelomith, jointly and/or severally and for their own accounts or for the accounts of others, negotiated the sale of a number of platted, unimproved lots located in a subdivision near DeFuniak Springs in Walton County, Florida and identified as Country Club Heights, Northeast, in Plat book 3, Page 21, Walton County, Florida. In negotiating for the sale of the lots, the Defendants placed various ads in Florida newspapers as an inducement for sale. Typical of such ads is the following: OWNER SACRIFICE Seven Mobile and Camping lots on Spring Lake. Boating, fishing, swimming. Electricity, water available. Only $375 each lot. Cash only. Call Owner, 931-1809 after 6 PM for appointment. (See Commission's Exhibit #6). Donald Vesey and his wife Jeanette Vesey purchased two lots from the Defendants based on an inducement prompted by a newspaper ad cause to be published by the Defendants. Mr. Vesey testified that Isaac Shelomith advised him that the lots were easily accessible; that owners could drive to their lots and that the lots were platted and that electricity and water was available. The Veseys were given warranty deeds for the lots during early April, 1975, and thereafter they attempted to see the lots during a visit to Defuniak Springs. The Veseys stated that they were unable to see the lots because they are "completely surrounded by privately owned property and there is absolutely no access to this property". However, the adjoining land owner, a Mr. Strickland, showed them approximately where their property was situated and was further able to show them that their property was "land-locked". Mr. Vesey testified that there were no access roads to the property and that the surrounding area is heavily wooded. (See Commission's Exhibits 3 & 4). Cynthia and Charles Derditsch, husband and wife, also purchased a lot from Defendant, Barry Shelomith, who advised that the property was accessible to the lake and Mr. Derditsch, based upon this representation, considered the property to be a good investment. Carl and Francis Milam also purchased property from the Defendants which was located in Walton County. Mrs. Milam testified that Isaac Shelomith told her the lot sizes were approximately 25 by 150 feet, however, she testified that she later learned that the property was smaller. Mrs. Milam's testimony in this regard is unspecific inasmuch as she could not either confirm or deny the lot sizes because she did not view the property and her husband had no recollection of the transaction involving the purchase of the property. George A. Torrence, also purchased a lot from the Defendants which he was unable to see because there was no easy access. He went to Spring Lake, the adjoining property, and the land owner, Mr. Strickland denied his access. To the best of his recollection, he testified that a Mr. Astor, who accompanied Defendant Barry Shelomith, made all the representations regarding the amenities of the property. Defendant Barry Shelomith told him that he represented Miami Sunshine, Inc., an active Florida Corporation to which he (Torrence) tendered the purchase price for the property. His testimony is that Barry Shelomith advised that his uncle, Ben Mione, was President of Miami Sunshine, Inc. (See Commission's Exhibit #12). Mr. Torrence also recalled that the property was represented to be 50 by 100 feet whereas in actuality it only measured 25 by 100 feet. Barry Shelomith testified that there were two means of access to the property in question. One mean was through the adjoining landowner's property and the other is through the use of a heavily wooded area off State Road #183. He testified that the plat map which was provided to all prospective purchasers was given them (the Defendants) by Budget Systems, Inc., the former owner and that the plat map was certified by a licensed surveyor. He denied any intent to defraud prospective purchasers by using the pseudonym "Mr. Shelly" instead of his last name which means "peace" in the Jewish community. He testified that by utilization of the word "Shalom" would possibly hinder his sales efforts outside the Jewish community. He denied any attempt to conceal his last name and admitted that he was not registered with the Commission as being employed by anyone other than his then registered broker, Alan Leavitt. He further admitted that the pseudonym "Shelly" was not registered with the Commission. While he admitted to directly selling the property of an owner while having his license registered with the Commission through broker Alan Leavitt, he saw no violation in this instance inasmuch as the property was owned by his uncle. He opined that this was permissible inasmuch as an owner was free to sell less than 49 parcels and secondly that the property owner in question here was a blood relative i.e., his uncle.
Recommendation Based on the foregoing findings and fact and conclusions of law, it is hereby, RECOMMENDED as follows: That the Defendant, Barry Shelomith, registration with the Florida Real Estate Commission as a real estate salesman be suspended for a period of two (2) years. That the Defendant, Isaac Shelomith, registration with the Florida Real Estate Commission as a real estate salesman be suspended for a period of two (2) years. That the complaint in all other respects be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of March, 1977. JAMES E. BRADWELL 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 30th day of March, 1977. COPIES FURNISHED: Richard Morgentaler, Esquire 1600 NE Miami Gardens Drive Greater Miami Beach, Florida 33179 Bruce I. Kamelhaire, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
