The Issue Whether Respondent's real estate broker's license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Fred J. Will was a licensed real estate broker in the state of Florida having been issued license number 0142418, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida 32014. At all times material to this proceeding, Richard P. Pollock was a licensed real estate salesman in the state of Florida having been issued license number 0139861, c/o Fred J. Will, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida, with a last listed home address of Post Office Box 2085, Flagler Beach, Florida 32036. Either in late December 1987 or early January 1988, Pollock approached Will with the idea of opening a real estate office using Will's real estate broker's license wherein Pollock would run the office since Will was currently employed managing the self storage facility of Regency Health Care Centers, Inc. In late January 1988, Will filed a Request For License or Change of Status Form using license number 0142418 wherein he advised the Petitioner that he would be operating under Will Realty located at 326 1/2 South Beach Street, Daytona Beach, Florida. Upon opening the offices at 326 1/2 South Beach Street, Will opened an operating or business bank account and an escrow bank account for the Will Realty at the Commercial National Bank (Commercial) Only Will was authorized to write checks on the excrow account. There was insufficient evidence to show whether any funds were ever deposited in the business or escrow account at Commercial. Once the office and bank accounts were opened, Will left the daily operation of the office to Pollock and was at the office only a couple of times between the time it was opened in late January 1988 and when it was closed around April 23, 1988. The "agreement", as such, between Will and Pollock was a 50/50 "split" once the business "got going". Will did not receive any compensation from Pollock for the "use of his license". Will did not receive any money from Pollock in regard to Will Realty, personally or for deposit in either bank account at Commercial. The "agreement" was that Will would allow Pollock to "work under" his real estate broker's license. Will did not have any knowledge of the advertising being used by Pollock for Will Realty such as newspaper ads or business cards until just before the office closed in April 1988. Will did not have any knowledge of the forms being used by Pollock for Will Realty such as contracts or agreements for advance fee arrangements or receipts evidencing payment of such fee until just before the office closed in April 1988. Additionally, Will did not have any knowledge of the advance fee arrangement which Pollock may have had with prospective tenants as payment for securing rentals until just before the office closed in April 1988. Will did not have any knowledge of Pollock opening the bank accounts at Coast Federal Savings and Loan Association (Coast) in the name of Will Realty until just before the office closed in April 1988. None of the funds received by Pollock from prospective tenants while with Will Realty were deposited in the accounts at Commercial. Nor did any of the funds collected by Pollock from prospective tenants while he was with Will Realty go to Will personally. During the latter part of March 1988, Donna Elliott approached Pollock through Will Realty for the purpose of finding a home to rent. Pollock arranged for Edward R. Brown to show Elliott a home he had for rent. Elliott eventually rented this home and gave Pollock a check in the amount of $100.00 dated March 26, 1988 as a deposit on the home. On March 31, 1988 Elliott mailed Pollock another check in the amount of $1,000.00 as rent for the Brown home. The funds from these two checks were deposited in the account at Coast. Brown experienced some difficulty in getting Pollock to pay the deposit and rent collected from Elliott. However, once Will became aware of the situation he demanded that Pollock pay over the deposit and rent and, as a result of Will's effort Brown received $575.00 from Pollock. After paying Brown the $575.00 Pollock disappeared and Brown demanded the balance from Will since Pollock was working under Will's real estate broker's license. At first, Will agreed but later on advice of counsel declined to pay on the basis that it was not his responsibility. Brown filed suit and was awarded a judgment for the balance which Will paid. Around the middle of April 1988 Diane Smith approached Pollock for the purposes of renting a home. Smith paid Pollock an advance fee of $75.00 for service to be rendered by Pollock in securing her a rental home. However, before Pollock found a rental home for Smith he disappeared without returning Smith's fee. Within a short period after Smith paid the advance fee she went to the office of Will Realty only to find it closed and Pollock gone. There was no evidence that Smith made a demand on Will for the return of the advance fee paid to Pollock. After Will became aware of the situation he called Petitioner's Orlando office and was informed by Judy Smith that he should close the office immediately. Will followed this advice and closed the office sometime around April 23, 1988. As soon as Will began to receive complaints from Pollock's clients he got involved with Pollock and attempted to correct the problems but Pollock disappeared before Will could correct the situation. There was insufficient evidence to show that while Pollock was at Will Realty, any of his prospective tenants, other than Smith, specifically Catherine Vick, failed to receive reimbursement for any advance fee paid to Pollock where rentals were not obtained for the prospective tenant. Will was not directly involved with any of the transactions between Pollock and the prospective tenants and did not have any knowledge of these transactions until shortly before Pollock disappeared and Will Realty was closed.
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 mitigating circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, Fred J. Will guilty of violating Section 475.25(1) (d) and (e), Florida Statutes, and for such violation impose an administrative fine of $500.00 and issue a reprimand. In recommending the reprimand I have taken into consideration the harshness of a suspension or revocation and feel that under the circumstances of this case that a reprimand and a fine is more appropriate. See: Webb v. Florida Real Estate Commission, 351 So.2d 71 (2 DCA Fla. 1977). It is further RECOMMENDED that Counts VI, IX and XIV of the Administrative Complaint be DISMISSED. DONE AND ENTERED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 22nd day of February, 1990. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 James H. Gillis, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Robert W. Elton, Esquire 648 S. Ridgewood Avenue Daytona Beach, Florida 32014 Fred J. Will 2281 Carmen Daytona Beach, Florida 32119
Findings Of Fact Florida Development and Sales Corporation (FDS) at all times here involved was a registered real estate corporate broker. Lawrence F. Taylor, at all times here involved, was a registered real estate broker and an Active Firm Member for FDS and Universal Realmark, Inc. Michael W. Levine, at all times here involved, was a registered real estate salesman for Universal Realmark, Inc., corporate broker. Florida Development and Sales was a wholly owned subsidiary of Universal Realmark, Inc. The two corporations occupied the same offices, had the same corporate officers, and used the same telephone numbers. Correspondence went out from either corporation on FDS stationery, and all employees of both corporations were paid by check drawn on FDS account. FDS entered into a non-exclusive brokerage agreement on August 2, 1971 (Exhibit 5) with Lake Lucie Estates, Inc., the owner of unimproved land it desired to sell in 1 1/4 acre tracts. Pursuant to said agreement the broker advertised and sold, generally by agreement or contract for deed and generally to out-of-state buyers, these 1 1/4 acre tracts. In 1973 Universal Realmark, Inc. acquired all of the stock of FDS and accepted the obligations of FDS under supplemental agreement dated May 23, 1973 (Exhibit 6). The brokerage agreement above referred to was undisturbed. By order dated May 6, 1974 the Commissioner of Securities, State of Missouri ordered St. Lucie Estates, Inc., and FDS, their representatives, inter alia, to cease and desist the offer and/or sale in Missouri of any agreement for deed securities. Chapter 409, Laws of Missouri, contain the Missouri Uniform Securities Act. Therein security, in 409.401(1), is defined to mean any contract or bond for the sale of any interest in real estate on deferred payments or on installment plans when such real estate is not situated in this state Section 409.201 makes it unlawful for any person to sell or offer for sale securities in Missouri without being registered to do so and Section 409.301 makes it unlawful for any person to offer or sell any security in Missouri unless: (1) The security is registered, or (2) The security or transaction is exempted under Section 409.402. Pursuant to these and other provisions of the securities law the cease and desist order was issued and served by certified mail on Lake Lucie Estates, Inc. and FDS. Section 409.410 of the Missouri Statutes provides that any person who has been personally served with a cease and desist order and thereafter willfully violates same shall, upon conviction, be fined not more than $5,000 or imprisoned not more than three year, or both. The Act further provides for personal service upon an out-of-state violator of the act by serving the commissioner who sends notice of the service to the out-of-state violator. Here the Respondents acknowledged receipt of the cease and desist order. Subsequent to the receipt of the Missouri cease and desist order Levine negotiated agreement for deeds with three purchasers in Missouri of Lake Lucie Estates, Inc. property. On one of these the purchaser's check was made payable to Lake Lucie Estates, Inc. and the checks for the other two were made payable to FDS. During his interrogation by the investigator, Levine acknowledged that he was aware of the cease and desist order at the time he negotiated the three agreements for deed. He obtained his list of people to call from the office, i.e. FDS/Universal Realmark. At the hearing Levine did not remember whether or not he was aware of the cease and desist order at the time he negotiated the Missouri contracts. He did remember receiving a commission on each sale by check drawn by FDS although he was registered as a salesman under Universal Realmark, Inc. As noted above Lake Lucie Estates had a brokerage agreement with FDS and no such agreement was ever negotiated with Universal Realmark. Lake Lucie Estates would have no objection to Universal Realmark selling its property. Respondent Taylor was the Active Firm Member of FDS and Universal Realmark. He was serving in that capacity with Universal Realmark when FDS was acquired. At the same time he operated his own real estate broker's office on Miami Beach, spending part of his time supervising the activities of each office. Taylor's initial statements to the investigator that he learned of the Missouri cease and desist order in June 1974 upon his return to the office from a stay in the hospital was repudiated at the hearing when he stated he learned of the Missouri order only a few hours before he talked to the investigator in October, 1974. Taylor also testified that he never authorized Levine to sell under his brokerage even though Taylor was the Active Firm Member of Universal Realmark and Levine was registered under the corporate broker, Universal Realmark. Taylor's main concern appeared to be to insure that the salesmen for these out-of-state land sales adhered to the script that had been prepared for them and from time to time he monitored their conversations. When he realized that the alleged violations of the real estate license law were being investigated he resigned from FDS and Universal Realmark because "they were violating my trust". When the requests for renewal of the FDS corporate broker's registration was submitted in September, 1974, Taylor signed same a Vice President of FDS and the Active Broker of the corporation.
The Issue Whether the license of Respondents should be revoked or suspended or other discipline imposed.
Findings Of Fact Upon consideration of the evidence received, the testimony elicited at the hearing, argument of counsel and memoranda submitted by the parties, I find: Respondent, Florida Coast Realty, Inc., was issued License Number 0168325 as a registered real estate broker corporation. Respondent Steven R. Myer, holds license number 0110787 as a registered real estate broker. Respondent Myer is an Active Firm Member for Respondent, Florida Coast Realty, Inc. In general, the contention of the Petitioner Commission is that the Respondents failed to pay an employee, Sam Blumner, a real estate commission due him on two occasions contrary to certain provisions in Chapter 475, Florida Statutes. The contentions of the Respondents are that the dispute was contractual and not within the jurisdiction of the Petitioner, that they tried to avoid an information being filed against them, and that the alleged offense's are insufficient to justify suspension or revocation. On November 1, 1976, Florida Coast Realty, Inc., by Steven R. Myer, entered into a contract agreement with Sam Blumner whereby Mr. Blumner was to receive a fee earned as a result of service performed by Mr. Blumner as a real estate salesman with Florida Coast Realty, Inc. Subsequently, on January 13, 1977, Sam Blumner was terminated as a salesman with Florida Coast Realty, Inc., and a notice of registrant change was nailed by the corporation to the Pompano Beach-Deerfield Beach Board of Realtors and received by the Board on January 18, 1977. A transaction pertinent to subject hearing was entered into on or about November 11, 1976 in which Walter Ross and Sam Blumner were the "listing" salesmen for property owned by Frank S. Holsclaw and Florence Holsclaw. It was ultimately purchased by Dennis F. and Dione Dicataldo, but subsequent to the termination of the employment of Blumner by Respondents. Mr. Blumner made a claim for $297.00 which represented one-half the listing, or twelve and one-half percent of the office profit. He testified that he was listed on the office "log" as co-lister. Nothing was paid to Mr. Blumner although Mr. Walter Ross, a broker formerly associated with Respondent Florida Coast Realty, Inc. and the co-lister was paid twelve and one-half percent of the office profit. Mr. Ross estimated that he received between $250.00 and $260.00 as "half" listing commission. Mr. Blumner's name did not appear on the listing contract in the transaction because he had not yet been listed as a member of the Board, and only the name of Walter Ross was listed as "salesperson". Mr. Ross testified that he and Sam Blumner were listed together on the transaction and that he himself received half of the listing commission. A registered realtor associate who worked for Respondent, Florida Coast Realty, Inc. at the time, Dorothy E. Reagan, testified that Walter Ross and Sam Blumner were the listing salesmen on the Holsclaw-Dicataldo transaction. The Respondents did not dispute the fact that Walter Ross was paid but one-half the listing commission although they pointed out his was the only name on the written contract. No evidence was entered by the Respondent showing that the remaining one-half of the listing commission was paid by Respondents to anyone. A second transaction pertinent to this hearing was entered into on December 31, 1977 with Mr. and Mrs. Haarar as sellers, and Mr. and Mrs. Grimes as buyers. The closing was several months later and after Mr. Blumner had left the employment of Florida Coast Realty, Inc. Mr. Blumner was the salesman who first showed the purchaser the home later purchased by Mr. and Mrs. Grimes, and was the "procuring cause" of the sale. He made an offer to the seller and counter offer of the seller to the buyer. He related to the Grimes the offer of $27,000, which was the final purchase price of the home and showed these purchasers other property for sale. Mr. Blumner was not paid a commission for the sale of the home. Both Mr. Ross and Mrs. Reagan testified that Mr. Blumner was the salesman on the transaction. Mr. Jerome T. Myer of the Respondent Florida Coast Realty, Inc., stated that Mr. Blumner should have been paid, but not the full commission inasmuch as he had not done the follow-up work involved after the initial procurement of a purchaser for the property. The Respondent, Steven R. Myer and his brother Jerome T. Myer did the follow-up work on the sale of the property in the Haarar-Grimes transaction. Mr. Blumner contends that he made demands for his money both as a co- lister and a salesman, but that no money was paid him. He testified that he would have foregone his commission as a co-lister in the amount of some $260.00 had he received a commission as salesman in the Haarar-Grimes transaction, a sum of some $567.00. Mr. Blumner testified that he endeavored to talk to the Respondent Steven R. Myer about the commission but was interrupted by Jerome Myer, and that he told the Respondents he would have to seek redress through the Petitioner, Florida Real Estate Commission, if he did not receive a commission. A letter was sent to the Petitioner by Respondent Myer on April 7, 1977 requesting information as to the jurisdiction of Petitioner relative to "a dispute with one of my former associates regarding commission money". The Commission acknowledged the correspondence and Respondent Myer was informed that the Commission had received a complaint against him alleging he had failed to account or deliver a commission to a salesman, and that it was being assigned for investigation. The Respondents made little or no effort to settle the dispute prior to the hearing.
Recommendation Suspend the license of the Respondents until the commission has been paid to Sam Blumner as co-lister in the Holsclaw-Dicataldo transaction and a settlement has been made in regard to the Haarar-Grimes transaction. DONE and ENTERED this 21st day of November, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 101 Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Steven L. Josias, Esquire P. 0. Box 23536 Fort Lauderdale, Florida 33308 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, an agency of the State of Florida, Petitioner, vs. CASE NO. 78-812 Progress Docket No. 3321 FLORIDA COAST REALTY, INC., and Broward County STEVEN R. MYER, Respondents. /
The Issue Whether Petitioner's application for a real estate salesman's license should be approved.
Findings Of Fact Petitioner is Victor Kevin Koellner. By application, he sought licensure as a real estate salesman. Petitioner was a unsuccessful candidate for the December 1988 real estate salesman's licensure examination. Petitioner received a score of 74. A score of 75 is required for licensure. Each correct answer has a grade value of one (1) point. Candidates are instructed to choose the most correct answer from among the multiple choice answers given. Petitioner challenges the answers selected by the Florida Real Estate Commission as correct as to questions numbered 15 and 52, on the test administered on December 5, 1988. Question 15 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1. The commission holds that the correct answer to question 15 is D. (Do any of the above). The Petitioner alleges that the better answer is A. (Request an Escrow disbursement order from the Florida Real Estate Commission). Section 475.25(1)(d), Florida Statutes, supports the Respondent's conclusion. Seventy-three (73%) percent of the candidates taking the examination on December 5, 1988 answered the question correctly. Question 52 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1 (page 2). The commission holds that the correct answer is C. (Pay it at the closing). The Petitioner alleges that the correct answer is D. (Not pay it). The question asked what should the seller do concerning the sales commission at the closing. Based on the facts given in the Florida Real Estate Handbook, 1987 Edition, page 272, the seller would have no option but to pay the commission at closing. Sixty and 3/10 (60.3%) percent of the candidates taking the examination on December 5, 1988 answered question 52 correctly.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 28th day of September, 1989, in Tallahassee, Leon County, 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 28th day of September, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Respondent's Proposed Findings: 1-8. Adopted in substance. Petitioner's Proposed Findings: Paragraphs 1,2,3,4,5 (in substance), 7, and 10 are accepted. Paragraphs 6,8 and 9 are rejected as not relevant. COPIES FURNISHED: Victor Kevin Koellner, pro se 1385 Taurus Court, Merritt Island, Florida 32953 E. Harper Field, Esquire Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Real Estate Legal Services 400 West Robinson Street Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether J.C. Hoffman violated the provisions of Section 475.25(1)(a) and Section 475.25(2), Florida Statutes.
Findings Of Fact J. C. Hoffman also known as Jean Hoffman was a registered real estate salesman whose certificate expired September 30, 1974. On March 31, 1975, Hoffman reapplied and was recertified by the Florida Real Estate Commission. During the intervening period, Hoffman continued to be registered by the Commission. In late 1974, Jean Hoffman showed David W. Jarrett two lots which Jarrett subsequently offered to purchase. Jarrett gave Hoffman $1,500 as a deposit receipt on this transaction in two checks, one for $300 and the other for $1,200. These checks were received into evidence as Exhibit 2. The contract entered into by Jarrett was received into evidence as Exhibit 1. Because Hoffman was not present at the hearing, Jarrett identified a picture of Hoffman taken from the files of the Florida Real Estate Commission as the individual who he had known as Hoffman. This picture was received into evidence as Exhibit 4. After entering into this transaction, Jarrett waited some time and when a closing did not take place, attempted to contact Hoffman. He was unable to contact Hoffman and unable to obtain the return of his $1,500. Jarrett also identified a letter from Barbara E. Green, the owner of the property, which he had received in reply to a letter to her concerning this transaction. This letter was received as Exhibit 3, and indicates that Green had rejected the offer. All Jarrett's efforts to obtain return of his money from Hoffman failed and the money and Hoffman have disappeared.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the registration of J. C. Hoffman also known as Jean Hoffman. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles E. Felix, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 J. C. Hoffman % Patrick N. O'Keef Dist. Road 5-7837 and N. Hwy 452 Lake Yale Village Leesburg, Florida 32748
Findings Of Fact At all times material to these proceedings, Respondent Valz was a licensed real estate broker in Florida, and held license number 0399628. At all times material to these proceedings, Respondent Edison was a corporation registered as a real estate brokerage in Florida, and held license number 0244097. Respondent Valz was the active broker for Edison, and held the office of vice-president for the corporation. Mr. Gilles A. Pageau, an owner and president of Edison, is a real estate investor and developer from Canada who does not have a real estate salesman's or broker's license. The corporation was formed and registered as a real estate brokerage in Florida in order to reduce the cost of real estate commissions paid on Florida lands purchased for development purposes. Normally, Mr. Pageau negotiates and handles Florida real estate purchases by himself, without the assistance of Respondent Valz. The corporation is named as his broker, and the customary commission on large tracts of land is split between Edison and the listing broker. Essentially, to Mr. Pageau, the placement of a portion of the real estate commission with Edison results in the saving of commission costs. Such monies do not actually go to Respondent Edison. Instead, Mr. Pageau pays that much less for the real property during purchase. In August 1987, Mr. Pageau, as trustee, entered into formal negotiations with Frank W. Helmerich, as trustee, regarding the purchase of a large tract of raw land in Lee County, Florida. Although Respondent Valz was not involved in the negotiations, she witnessed Mr. Pageau's signature on one written offer to purchase the real property. Mr. Pageau signed the offer in his capacity as trustee, and Respondent Valz acknowledged that she had received a ten thousand dollar note as an earnest money deposit from Mr. Pageau in her capacity as escrow agent for Respondent Edison. The proposal was rejected by Mr. Helmerich and his principals and the offer became void. Eventually, a contract for sale and purchase of the property was entered into between the parties to the transaction on November 1, 1987. Respondent Valz was not involved in the negotiations and had no personal knowledge that a contract had been completed between the parties until a later date. As part of the contract, Mr. Pageau, trustee, agreed to place his earnest money deposit on the property with Edison in its escrow account. The contract required that twenty-five thousand dollars be placed in the escrow account. Page 2 of the offer, which became the contract, has a handwritten note over the typed provisions in paragraph Q which states, "Escrow are with agent." The first page of the contract states that the escrow agent is Edison Properties, one of the Respondents in this proceeding. On November 2, 1987, an employee of Respondent Edison, acting under the direction of Mr. Pageau, in his capacity as the president of Respondent Edison, placed a promissory note signed by Gilles A. Pageau, maker, into a bank for safekeeping. The note was to be paid to Edison Properties, Inc., and was not made payable until the closing of the land purchased from Mr. Helmerich, trustee. As the promissory note did not contain a date certain for payment, it was not a completed instrument at the time it was accepted by Respondent Edison, through Mr. Pageau, president, in its capacity as escrow agent. The promissory note, on its face, did not meet the requirements set forth in the contract for sale and purchase. The twenty-five thousand dollars was not in any escrow as these funds were not earmarked and reserved for use in this business transaction. Mr. Helmerich did not have the consideration or the liquidated damages reserves he believed he had acquired for the sellers under the terms of the contract. The closing did not take place as set forth in the contract between Mr. Pageau, trustee, and Mr. Helmerich, trustee. On December 16, 1987, demand was made upon Respondent Valz, as the active broker for Respondent Edison, to release the escrowed twenty-five thousand dollars to Mr. Helmerich, trustee, as liquidated damages under the contract. This demand was the first time Respondent Valz was aware that an earnest money deposit was allegedly in an escrow account in Edison Properties, Inc. After the initial demand for the escrow deposit was made, Mr. Pageau, as trustee, directed Respondent Valz, as broker for Respondent Edison, to hold the escrow deposit until further notice. A copy of this letter was sent to Mr. Helmerich by Mr. Pageau. In fact, pursuant to the terms of the promissory note, an escrow did not exist, and the letter was further perpetration of the fraud upon the sellers regarding the earnest money deposit. On December 18, 1987, Mr. Helmerich and Mr. Pageau jointly signed a letter which directed Respondent Valz to disburse all deposit monies held by Respondent Edison to the sellers. Mr. Pageau's signature on the letter was a continued perpetration of the fraud because an escrowed money deposit still did not exist. On or about January 7, 1988, the seller's attorney Truman J. Costello, demanded the earnest money deposit from Respondent Valz, as broker for Edison. On January 12, 1988, Respondent Valz, as broker for Respondent Edison, responded in writing to the attorney's demand. In her letter, Respondent Valz stated that the deposit would be transferred to Chicago Title, in cash, on or before January 22, 1988. The letter further advised that the parties to the contract were attempting to settle the dispute. In response to the attorney's inquiry, Respondent Valz explained in the letter that she did not notify the Real Estate Commission of conflicting demands on the earnest money deposit because the parties were attempting to resolve their dispute and were trying to close the real estate transaction. 14 An escrowed money deposit still did not exist at the time this letter from Respondent Valz was sent. It is unknown whether Respondent Valz was aware that the promissory note was without value. The note may still have been in the bank, hidden from direct inspection by Respondent Valz. The funds Respondent Valz stated would be transferred were never placed with Chicago Title, and Mr. Pageau as trustee, has not purchased the property or paid the liquidated damages. No aggravating or mitigating circumstances were presented to the Hearing Officer.
Recommendation Based upon the foregoing, it is RECOMMENDED: That all violations charged against Patricia Smithwick Valz, as set forth in the Administrative Complaint, Case No. 88-4667, should be dismissed. That the registration of Edison Properties, Inc. as a real estate brokerage in Florida be revoked for five years based upon the finding that the Respondent, through the acts of its corporate president, is guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes, as set forth in Count II of the Administrative Complaint. That the violations charged against the Respondent, Edison Properties, Inc. in Count IV and Count VI, should be dismissed. DONE and ENTERED this 14th day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 14th day of February, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO number 1. Accepted. See HO number 2. Accepted. See HO number 3. Rejected. Contrary to fact. A genuine promissory note which had any value did not even exist. See HO number 5 - number 8. Accepted. Accepted. Accepted. See HO number 9. Accepted. Rejected. Contrary to fact. See HO number 11. Accepted. See HO number 12. Rejected. No earnest money existed. Contrary to fact. See HO number 10 and number 14. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO number 1. Rejected. Contrary to fact. See HO number 6. Rejected. Irrelevant. Accepted. See HO number 3. Accepted as to Respondent Valz. See HO number 5. Rejected as to Respondent Edison. Contrary to fact. See HO number 6 - number 8. Accepted. But the reason was the fraud perpetrated by Mr. Pageau. See HO number 8. Rejected. Irrelevant. Accepted as to Respondent Valz. Rejected as to Respondent Edison. See HO number 9 - number 10 Accepted. See HO number 5 and number 9. Accepted as to Respondent Valz. See HO number 5. Rejected as to Respondent Edison. See HO number 6 - number 8. Rejected. Irrelevant. Accepted. Rejected. The real estate sales and purchase agreement establishes facts to the contrary. Rejected. Speculative. Accepted. See HO number 5. Accepted. Rejected. Contrary to fact. See HO number 15. Rejected. Contrary to fact. Accepted. See HO number 7. Accepted. See HO number 9. COPIES FURNISHED: Steven W. Johnson, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Howard Hadley, Esquire 827 Deltona Boulevard Deltona, Florida 32775 Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32302 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact The real estate transaction which is the subject of this proceeding arose out of a contract for sale and purchase of property in Orange County, Florida, dated April 22, 1981. Pursuant thereto, the purchasers placed a $200 deposit against the sale price with the Respondent, J.B. Steelman, Inc. The closing was set for June 23, 1981. An addendum to the contract extended this closing date to July 29, 1981. On July 1, 1981, the seller's attorney notified the Respondent that the seller declined to close-the subject sale, and authorized the release of the $200 deposit to the purchasers. Any releases which might be required were requested to be delivered to the seller's attorney. Subsequently, the attorneys for the seller and for the Respondent discussed the matter of the seller's obligation to pay a real estate commission, and the seller's attorney sent to the Respondent a three-party release agreement between the buyers, the seller, and the Respondents. The forwarding letter from the seller's attorney added that when all parties had signed this release, the Respondent would be authorized to disburse the $200 earnest money deposit to the purchasers. The seller also agreed to pay the purchasers an additional $500 in settlement for any claim they might have for failure of the seller to close. The release agreement further required the Respondent to relinquish any claim for a real estate commission. The Respondent, through counsel, advised the seller's attorney that the $200 deposit would be released to the purchasers in-accordance with any agreement that might be satisfactory to the seller and the purchasers, but that the Respondent would not release any claim to a commission without compensation. The Respondent added that when the seller had signed the release agreement the deposit would be paid to the purchasers. Counsel for the Respondent ultimately got the purchasers to execute the release agreement and sent it to the seller's attorney requesting that the seller either sign this release or advise that there was no objection to a disbursement of the $200 deposit to the purchasers. No response was forthcoming from the seller or from counsel for the seller. Finally, on September 11, 1981, the Respondent's lawyer wrote to the seller's lawyer, advising that the Respondent would not relinquish any right to a real estate commission, but that the Respondent would release the $200 deposit to the purchasers. On or about September 15, 1981, the $200 deposit was paid to the purchasers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint against the Respondents, Johnny B. Steelman, Jr., and J. B. Steelman, Inc., be dismissed. THIS RECOMMENDED ORDER entered on this 26th day of May, 1982. WILLIAM B. THOMAS 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 27th day of May, 1982 COPIES FURNISHED: James H. Gillis, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Eric A. Lanigan, Esquire 1214 East Robinson Street Orlando, Florida 32801 Frederick H. Wilsen, Esquire 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Herbert Lane is guilty of violation of Section 475.25(1)(a) and (2), Florida Statutes.
Findings Of Fact Herbert Lane is a registered real estate salesman. Herbert Lane was employed by International Land Services Chartered, Inc. He was paid by International Land Sales Chartered, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Herbert Lane as a registered real estate salesman. DONE and ORDERED this 7th day of April 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire and Charles Felix, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Herbert Lane 3890 Swenson Apts. No. 503 Las Vegas, Nevada 89109 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 77-208 PROGRESS DOCKET HERBERT LANE, NO. 2960 DADE COUNTY Respondent. /
