Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, Respondent was a licensed real estate broker in the State of Florida having been issued license number 0072124. On or about September 6, 1986, the Respondent as seller/owner and Kenneth and Alicia Pelczar as purchasers entered into an agreement for the sale and purchase of Lot 10, Bowden Acres Subdivision, located in Duval County, Florida for the total purchase price of $79,000. Upon execution of the agreement, the purchasers deposited the sum of $1,500.00 with the Respondent which was to be part of the down payment, provided the sale of the property was finalized. The check from the Pelczars was cashed by the Respondent on October 24, 1986. The agreement provided remedies to both the seller and the purchasers if either party defaulted. Under the agreement no commission was to be paid on the sale of the property. The Pelczars were aware that the Respondent owned the property and that they were dealing with her as the owner, not as a real estate broker. The deposit was not paid to Respondent as a real estate broker to be held in trust but was paid to Respondent as part of a down payment to be applied to the total purchase price, if the transaction closed, and subject to being retained as liquidated damages if the purchasers defaulted under the agreement. The Respondent suffered financial difficulties, and on November 19, 1986, the bank foreclosed on several parcels of property owned by the Respondent, including the property Respondent had under contract with the Pelczars. However, the bank gave Respondent written authority to go forward with the sale to the Pelczars. The reason for the Pelczars' refusal to close the transaction on November 14, 1986, is not clear but they refused and demanded the return of the deposit. Respondent retained the deposit under the default clause of the agreement, and has refused to return any portion.
Recommendation Based upon the Findings of Fact, Conclusions of Law the evidence in the record and the demeanor and candor of the witnesses, it is RECOMMENDED that the Commission enter a Final Order DISMISSING the Amended Administrative Complaint filed herein. Respectfully submitted and entered this 15th day of December, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 15th day of Decemeber, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2646 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3 but clarified. Adopted in Finding of Fact 6 but clarified. The fact that the closing was to be on November 14, 1986, is adopted in Finding of Fact 6. The balance of paragraph 5 is rejected as not being supported by substantial competent evidence in the record. The fact that the bank authorized the sale of the house after foreclosure is adopted in Finding of Fact 6. The balance of paragraph 7 is rejected as not supported by substantial competent evidence in the record with the exception of the fact that Respondent has not returned the deposit. Rejected since it is a statement of Respondent's testimony rather than a finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3 but clarified. 5.-7. Adopted in Finding of Fact 6. 8.-9. Rejected since it is a statement of Respondent's and Kenneth Pelczar's testimony rather than a finding of fact. Adopted in Finding of Fact 3. Rejected since it is a statement of Respondent's testimony rather than a finding of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Larry L. Bryan, Esquire 1420 North Third Street Jacksonville, Florida 32250 Darlene F. Keller, Acting Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Respondent's real estate broker's license should be disciplined based upon the allegations that Respondent is guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction, in violation of Section 475.25(1)(b) Florida Statutes. Whether Respondent's real estate broker's license should be disciplined based upon the allegation that Respondent is guilty of failure to account and deliver funds, in violation of Section 475.25(1)(d)1., Florida Statutes. Whether Respondent's real estate broker's license should be disciplined based upon the allegation that Respondent is guilty of failure to maintain trust funds in a real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized, in violation of Section 475.005(1)(k), Florida Statutes.
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 Leslie L. White is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0095441 in accordance with Chapter 475, Florida Statutes. The last license issued to the Respondent was as a broker with an address of Les White Realty, 6313 Wynglow Lane, Orlando, Florida, 32818-1311. Respondent's license is currently under suspension for failing to pay a fine and failure to complete certain education courses. On or about September 28, 1993, Respondent negotiated a contract between himself, doing business as Les White Enterprises, as seller, and Charles and Greta White, as buyers, (no apparent relationship to Respondent) to purchase Lot Number 18, Whisper Ridge subdivision in Orange County, Florida and build a house thereon for the total sum of $79,000. Respondent prepared the contract, using the standard Contract for Sale and Purchase form approved by the Florida Association of Realtors and The Florida Bar. Les White Enterprises was listed as the "Seller" and Charles White and Greta White, his wife, were listed as "Buyers". The Buyers agreed to purchase Lot 18 and to have a house constructed on the site by the Seller. The Buyers agreed to seek "new financing at prevailing interest rates" in the amount of $75,550; put down a $2,000 deposit and pay an additional $1,450 at closing. The contract called for the deposit to be held in escrow by Les White Realty/Builders. The $2,000 deposit was paid in cash by the Buyers and given to Respondent. The Respondent did not place the $2,000 deposit in an escrow account contrary to the express terms of the contract. Respondent did not acknowledge receipt of the deposit in his capacity as a broker. At the time the contract was signed, the Buyers knew that the Respondent did not own or have title to Lot 18, and that the purchase price of the lot exceed the amount of the deposit. The Buyers consented to the Respondent using the funds to acquire the property. Respondent was unable to purchase Lot 18, and sought the Buyers' permission to purchase Lot 2 instead and construct a house on it in accordance with the parties' prior agreement. The Buyers reluctantly agreed. On February 18, 1994, Buyers gave Respondent a cashier's check for $1,200 for the purpose of clearing the land and beginning construction of a home for them on Lot 2. The funds were not placed in escrow. The Respondent utilized the funds received from the Buyers and acquired title to Lot 2 in his name alone on or about February 25, 1994. The Respondent cleared Lot 2 in preparation for construction, obtained building plans and applied for building permits in connection with building a house on said lot. Shortly thereafter, Respondent notified the Buyers that the private investors, who approved their loan application, had discontinued financing of the Respondent's construction loan and he was unable to construct the house. The transaction failed to close and the Buyers demanded that Respondent return the earnest money deposit. Respondent was unable to return to return the $3,200 earnest money deposit to the Buyers. Respondent filed for personal reorganization under Chapter 13 of the United States Bankruptcy Code. Throughout the course of this transaction, Buyers dealt with Respondent in his capacity as a broker/builder. In 1994 and 1995, the Florida Real Estate Commission found Respondent guilty of violating the provisions of Section 475.25(1)(b) and (1)(d)1., Florida Statutes on three occasions. Following the third offense, Respondent's license was suspended for six months and it is presently under suspension for failure to pay his administrative fines and complete other requirements of probation.
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b), (d)1., and (k), Florida Statutes; and guilty of having been found guilty for a second time (or more) of misconduct that warrants suspension, in violation of subsection 475.25.(1)(o), Florida Statutes; it is further RECOMMENDED that Respondent's licensed be revoked. DONE and ENTERED this 4th day of October, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1996. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Gillis and Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Wallace Adams was a registered real estate salesman with Continental Marketing Services from November, 1975, until May, 1976. The depositions of Robert Cline, Donald Brawdy and Jean Sue Brawdy were received into the record without objection. The depositions of the Brawdys reflect that they received a telephone call from an individual identifying himself as Wallace or Wally Adams. The deposition of Robert Cline reflects that he received a call from an individual whom Cline identified only as Mr. Adams. The deponents indicated that the caller stated he represented Continental Marketing Services, a real estate sales organization. The caller represented that Continental Marketing Services desired to list property which they owned in Florida and Arizona for sale. The caller represented that their property would be advertised nationally and internationally, and that foreign buyers were interested in purchasing such property. Cline indicated that he was called in approximately November of 1975, and the Brawdys indicated that they were first contacted in February of 1976. The caller suggested the potential sales prices of the property to be listed, and the deponents eventually entered into a listing contract with Continental Marketing Services, paying advance listing fees ranging from $350 to $1,125. None of the deponents indicated that they ever met the Respondent, Wallace E. Adams.
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 Wallace E. Adams as a registered real estate salesman. DONE and ORDERED this 16th day of March, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mark A. Grimes, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Wallace E. Adams c/o Dory Auerbach 456 NE 29th Street Miami, Florida 33137
The Issue The Administrative Complaint alleges Respondents violated Section 475.25(1)(b), Florida Statutes, by committing certain acts which were fraudulent or were misrepresentations or concealed material facts. The issues are whether the Respondents committed the acts alleged and, if so, did their conduct constitute a violation of Section 475.25(1)(b), Florida Statutes. Both parties submitted proposed findings which were read and considered. To the extent that the findings herein differ from the findings proposed, it is because the proposed findings were not relevant or material to the issues, were not based upon the most credible evidence, or were not findings of fact.
Findings Of Fact The Respondents, Norman D. Rathbun and Dianna A. Stolpman, are real estate brokers having been issued license numbers 0072024 and 0085366 respectively. The last known address of Respondents is c/o Mark Realty, Inc., 130 Fifth Avenue, Indialantic, Florida. Respondents are now and were at all times alleged herein licensed real estate brokers in the State of Florida. In February of 1980, Rathbun discussed with Gene Myers at Myers' behest a financial arrangement by which Myers, who had been trying to sell a house which he and his wife owned and were leasing, could obtain immediate cash to go to California. On February 4, 1980, they entered into a written agreement which provided in general terms that the Respondents would give the Myers $5,000 in cash, would assume financial responsibility for the three mortgage payments on the house, would manage the rental of the property, and would attempt to sell the house for which Respondents would receive a $3,000 commission and split the proceeds of the sale of the house with the Myers less the moneys the Respondents had expended. Upon discovering an outstanding judgment against the property of over $1,000, the Respondents prepared an amended agreement which provided that they would give the Myers $4,000 in cash and pay the outstanding judgment. This amendment was executed on February 8, 1980, at which time the Myers executed a warranty deed conveying the property to the Respondents. All of the parties were aware of their mutual obligations and the benefits they were to obtain from the agreement, and the Myers executed the warranty deed with a full understanding that they were conveying their right in the property to the Respondents subject to the terms of this agreement. Although conflicting testimony was received about whether the deed would be recorded by the Respondents, the documents and actions of the parties show the Myers were aware that the deed was in exchange for the cash and promises they received and that it would be recorded if necessary to secure the Respondents' interests (i.e., if the Myers were killed in an automobile accident) although the Respondents did not anticipate filing the deed. In early May of 1980, the Myers, who were living in California, determined they wanted to return to Florida. Gene Myers called Rathbun and asked if they could get the house back. Rathbun consulted Stolpman and, as a result, a letter was sent to the Myers on or about May 2, 1980, setting forth the terms under which the Myers could have the house back. The Myers did not comply with the terms of this letter until September 5, 1980, when they tendered the money to the Respondents. Upon tendering the money in return for rescinding their previous agreement, the Respondents reconveyed the property. Before the agreement was rescinded, Respondents continued to deal with the property as its owners limited only by the written agreement. The Myers had no legal right prior to September 5, 1980, to direct the Respondents to return the house to the Myers' possession or to cease their efforts to sell the property. The Respondents did all the things which they were required to do under the agreement and at all times met their obligations under the agreement. On or about May 10, 1980, when the Myers had returned to Florida, Gene Myers told Rathbun that he did not want the house sold, and that he could cut off the Respondents' rights by conveying the property to a relative. On May 12, 1980, in response to Myers' comment about cutting off their rights in the property, the Respondents filed the deed executed by the Myers conveying the property to the Respondents. On June 30, 1980, the Myers filed a claim of financial interest in the property with the local circuit court clerk. No evidence exists that the Respondents were served with this claim. Respondents continued their efforts to sell the property and on July 1, 1980, obtained a contract for sale on the property for a price that was within the limits established under their agreement with the Myers. Closing on the contract was to be on Friday August 1, 1980. On July 21, 1980, through their attorney, the Myers filed suit against the Respondents, who were served with the suit and a lis pendens on July 24, 1980. On July 25, 1980, Respondents met with their attorney, who called the Myers' attorney. Arrangements were made to meet on August 4, 1980, to discuss resolution of the suit. Between July 25 and August 1, 1980, Respondents did not notify the buyers or the buyers' agent that a suit was pending regarding the property. On or about July 31, 1980, the Myers reoccupied the house and on August 1, 1980, advised the buyers that they were the owners, not the Respondents. The buyers, their attorney and their real estate agent attended the scheduled closing. Rathbun arrived late, at which time the pending litigation and the Myers' claims were being discussed. Rathbun advised the group that he and his attorney were already scheduled to meet with the Myers and their attorney the following Monday, and that he felt the matter could be resolved. On August 2, 1980, the buyers elected to withdraw their offer. On August 4, the Respondents and the Myers reached a tentative agreement for the Myers' continued possession of the property. This resulted in a written agreement dated September 5, 1980. The terms of this agreement were substantially the same as the terms stated in the letter to Myers of May 2, 1980.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission dismiss the allegations of the Administrative Complaint against the Respondents. DONE and ORDERED this 21st day of September, 1982, 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 21st day of September, 1982. COPIES FURNISHED: John G. DeLancett, Esquire 801 North Magnolia Avenue, Suite 402 Post Office Box 6171-C Orlando, Florida 32803 Michael Krasny, Esquire 416 South Babcock Street Post Office Box 1376 Melbourne, Florida 32901 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel R. ,Shorstein, Secretary Department of Professional Regulation 130 North Monroe Streets Tallahassee, Florida 32301
Findings Of Fact Respondent, Richard C. Lightner, was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0408120. The last license issued to Respondent was as a broker, with a home address of 1221 Duval Street, Key West, Florida 32040. Respondent, or a representative on his behalf, did not appear at the hearing to refute or otherwise contest the allegations contained in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Department enter a Final Order revoking Respondent's Real Estate brokers license. DONE and RECOMMENDED this 29th day of July, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1988. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 Raymond O. Bodiford, Esquire 515 Whitehead Street Key West, Florida 33040 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE Petitioner vs. Case No. 0154510 DOAH No. 87-3668 RICHARD C. LIGHTNER III Respondent /
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At the hearing, counsel for the petitioner attempted to introduce into evidence as an exhibit a computer printout showing respondent's license status. This document could not be identified by any witness called to testify in the proceeding and was not otherwise properly authenticated. The following colloquy between counsel for the petitioner, the Hearing Officer and the respondent occurred prior to the time respondent was placed under oath during the hearing: MR. JORDAN: Finally, Your Honor, we'd like to introduce as our next exhibit a computer printout showing Mrs. Steed's license status which reflects that her broker's license was effective 4/1/81. That would be Exhibit 23. MRS. STEED: Where are they located at? MR. JORDAN: That came out of Tallahassee, I believe. That's just a printout on your license. MRS. STEED: Do they show I'm inactive? MR. JORDAN: Let me see. This simply shows that as of 8/28/81 and you were licensed and your broker's license became effective 4/1/81 and your home address is 10164 Southwest 64th Street. MRS. STEED: None of that is true. THE HEARING OFFICER: She obviously cannot identify that document if it's something that came out of Tallahassee and she's never seen it before. MRS. STEED: It's inactive. THE HEARING OFFICER: Okay. Since Mrs. Steed is not represented by an attorney, I feel obliged to tell her it's the Board's responsibility to prove that she either was licensed at the time of the allegations in the complaint or something -- MRS. STEED: I am not a licensed real estate broker at the present time and I haven't been, but I just don't know the date that it changed. MR. JORDAN: The material time I think is back in `80 and `81 when this was going on. I can call your associate. MRS. STEED: I possibly was licensed then. I'm not saying I wasn't. I don't really know. I would say I was. THE HEARING OFFICER: As I said, it's the Board's responsibility to prove that up. MR. JORDAN: I think she's saying you still have it. It's just that it's inactive. MRS. STEED: I'm inactive. MR. JORDAN: You haven't given up your license; correct? MRS. STEED: No THE HEARING OFFICER: You're not offering that? MR. JORDAN: I'm not offering that. I think she agrees that she was licensed back in '80 and '81 when these transactions were going on. (TR. pp 59 and 60) No other evidence was offered during the hearing as to respondent's status as a licensed real estate broker in Florida.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint against the respondent filed on September 2, 1981, as amended on December 1, 1981, be DISMISSED. Respectfully submitted and entered this 28th day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 28 day of July, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Mr. C. B. Stafford Conrad, Scherer & James Executive Director Post Office Box 14723 Florida Real Estate Commission Ft. Lauderdale, Florida 33302 Post Office Box 1900 Orlando, Florida 32801 Carolyn Steed 5951 S. W. 67th Ave. Fred Wilsen, Esquire Davie, Florida 33314 Florida Real Estate Commission 400 W. Robinson Orlando, Florida 32801
Findings Of Fact Prior to the commencement of hearing, the parties entered into a stipulation of fact, a copy of which is attached and constitutes the findings of fact in this hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take action to cause Holdridge's name to be placed on the list of active brokers and to have current registration papers issued. DONE and ORDERED this 2nd day of May, 1977, in Tallahassee, 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 2nd day of May, 1977. COPIES FURNISHED: Frederick H. Wilsen, Esquire 2699 Lee Road Winter Park, Florida 32789 Michael E. Crane, Esquire 521 Landmark Building Naples, Florida 33940 =================================================================
The Issue The issues presented in This case are whether the Respondents committed the acts alleged in the Administrative Complaint and whether such acts constitute a violation of the statutes. Petitioner submitted post hearing findings of fact in the form of a proposed recommended order To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Frank R. Jansen, is a broker salesman holding license number 0317199. The Respondent, Lillian LaCrampe, now Soave, is a real estate salesperson holding license number 0137930. In June 1980, Jansen held an individual broker's license in the State of Florida. In late summer of that year, he entered into an agreement with Flora Harwood, a licensed broker in the State of Florida and owner of Select I Realty. Under this agreement, Jansen and Harwood would form a corporation and participate in a brokerage company under the name Select I Realty, in which Jansen would open and operate a branch office of Select I Realty. The exact details of the corporation and the division of shares were not worked out between the parties; however, Harwood undertook to have a corporation formed the name Jansen and Harwood, Inc., and two attempts were; made to register Jansen as a broker with Jansen and Harwood, Inc., doing business as Select I Realty. These applications were rejected by the Florida Real Estate Commission for various reasons, to include the requirement that a corporation operate only in the corporate name and the failure of the applicants to submit corporate papers. The incorporation and application to the Commission were handled by Flora Harwood's attorney. The last denial of the application was on October 22, 1980. During the period the applications were being filed with the Commission, Harwood became disenchanted with the idea of the corporation because of her perception that Jansen was not cooperating with her. Therefore, after the second application was denied, Harwood did not take action to timely file a third application. Although Jansen was aware of the denial of the application, the evidence does not show that he was aware that Harwood delayed the third application. By the end of 1980, Jansen and Harwood had both independently abrogated their agreement, and shortly thereafter Jansen left the business totally. Until he left, Jansen continued to actively manage the branch office of Select I Realty, which he had established and organized and from which he conducted his real estate business as a broker for Jansen and Harwood, Inc. The policy of the Florida Real Estate Commission with regard to applications is that the applicant may operate if a license application is not returned. If the application is returned for correction and corrected and resubmitted timely, the applicant may continue to operate. If the application is not returned in a timely fashion, the applicant may not work. The failure of Jansen and Harwood to eventually incorporate, followed by the severance of their business relationship, intensified the conflict between them, out of which several of the allegations of the Administrative Complaint arose. On September 5, 1980, the Respondent LaCrampe contracted to buy for herself Lot 3 of Ozona Shores from Preston and Grace King. On January 5, 1981, LaCrampe closed the transaction with the Kings. At that closing, a check for $825 in commissions to Select I Realty was disbursed by the closing agent to the Respondent Jansen. Jansen deposited said check to his personal account. Flora Harwood asserted a claim to a share of the commission on the purchase of the property by LaCrampe. When Harwood discovered that this sale had occurred, she checked with the closing agent and found that a commission check had been paid to Jansen. She further discovered that Jansen had deposited this check to his personal account, and because the check was made out to Select I Realty Harwood had the bank take action to collect the $825 and pay it to her, which the bank did. Harwood's claim to the $825 was based upon an office policy applicable to employees which required that commissions on real estate purchases for investment purposes by employees of Select I Realty be shared with the office. However, this contract closed on January 5, 1981, after the relationship between Jansen and LaCrampe had been severed with Harwood. The competing claims between Jansen and Harwood to the $825 in commission are part of the severance of the business relationship between two persons operating as co-brokers. Testimony was received that in the operation of the branch office Jansen had authority to receive checks, deposit checks, and write checks. On or about December 10, 1980, Jansen participated in the rental of a condominium by Eugene Donahue from Glen and Mary Mitchell. The rental contract incorporated an option to purchase. Said rental contract required that Donahue pay $400 per month, $50 of which was a maintenance fee. Jansen received the first check from Donahue in the amount of $400, negotiated the check, and received a bank check in the amount of $350 payable to Glenn Mitchell and $50 in cash. It is asserted in the Administrative Complaint that Jansen received the $50 in cash as a commission payment to which he was not entitled. However, Respondent's Exhibit numbered 4 reflects that Glenn and Mary Mitchell here in arrears on their maintenance payment in the amount of $49.75, and the policy of Coachman Creek Condominium Association was not to grant any approval of lease or sales contracts until all maintenance payments were up to date. Respondent's Exhibit numbered 4 shows that approval of the subject rental contract was granted when Jansen produced the late payment. Several allegations of the Administrative Complaint relate to real estate transactions in which the Respondents Jansen and LaCrampe were involved with Heinz Lehman and allege fraud and misrepresentation arising from failure of Jansen to identify LaCrampe as his mother to Lehman. The first occasion on which Lehman met the Respondents was when Lehman visited a store in a strip shopping center which Jansen was selling as a broker. Lehman testified that Jansen identified LaCrampe at that time as a real estate associate and his "girl Friday." Lehman's testimony revealed that he knew LaCrampe was a real estate salesperson and an associate of Jansen but did not know that LaCrampe was Jansen's mother until after their series of transactions had occurred. Lehman did not buy the strip store but later purchased a condominium through Jansen and then sold it through Jansen after fixing it up. In November 1980, Lehman contracted to purchase Lot 3 of Ozona Shores (see paragraph 8 above) from LaCrampe. On January 5, 1981, after LaCrampe had purchased the property, she in turn sold the property to Lehman on the same day. In November 1980, prior to entering into the contract for the purchase of Lot 3, Lehman had visited Ozona Shores and had looked at several pieces of property. Thereafter, Jansen presented him with the opportunity to purchase Lot The evidence is clear that Jansen never identified Lot 3 on the, ground or by plat to Lehman. Lehman purchased the property without a survey and without reference to any plat. After he had purchased the property, Lehman found that Lot 3 was not tie lot which he though it was. At a later date, after being unable to finance a house on this property for speculative purposes, Lehman let the lot, 90, back to LaCrampe. On or about January 22, 1981, Jansen visited Florence Smith, who was interested in selling a house which she owned at 1550 Laura Street, Clearwater, Florida. Without obtaining a listing contract, Jansen thereafter advised Smith that he had a potential purchaser. On January 29, 1981, Smith contracted to sell her house to LaCrampe for nothing down and a $37,000 mortgage payable to Smith. Thereafter, Smith determined that she would prefer a balloon note, and LaCrampe agreed to a balloon note if the price were reduced to $36,000, to which Smith agreed. This slightly reduced the monthly payments to Smith. On February 12, 1981, LaCrampe contracted to sell this property to Lehman for $5,000 down, assumption of the second mortgage to Smith, and payment of a $1,400 commission by Lehman to Jansen. LaCrampe obtained modification of her contract with Smith to permit LaCrampe to assign her contract to purchase. In this transaction, Jansen did not identify LaCrampe as his mother or as a real estate salesperson and his associate. Jansen did not explain to Lehman that the money which Lehman paid down was to be paid to LaCrampe. On or about March 10, 1982, Leo Huddleston, an investigator for the Department of Professional Regulation, visited Jansen's office at the address at which Jansen was registered. Huddleston did not find the required sign at the office identifying it as that of Frank Jansen, a real estate broker. At that time, Jansen had registered as broker for Suncoast Investments and Realty, Inc., and was renting office space with telephone-answering and secretarial services in an office suite complex. Although the building directory listed the suite as the office of Jansen as a real estate broker, the office suite did not have Jansen's real estate brokerage sign. When this matter was brought to Jansen's attention, an appropriate sign was provided. In November 1980, the Respondent LaCrampe was licensed as a real estate salesperson with Jansen and Harwood, Inc.
Recommendation Having Found the Respondent, Frank R. Jansen, in technical violation of Rule 2IV-10.24, Florida Administrative Code, an thereby Section 475.25(1)(e), Florida Statutes, it is recommended that Jansen receive a cautionary letter. Having found the Respondents, Frank R. Jansen and Lillian LaCrampe, now Soave, guilty of one violation each of Section 475.25(1)(b), Florida Statutes, it is recommended that their licenses be suspended for a period of one year. DONE and RECOMMENDED this 16th day of August, 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 16th day of August, 1983. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Frank R. Jansen 108 Harbor Drive Post Office Box 247 Ozona, Florida 33560 Ms. Lillian LaCrampe Soave 114 Harbor Drive Post Office Box 247 Ozona, Florida 33560 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe street Tallahassee, Florida 32301 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION Petitioner, vs. CASE NO. 0013099 0017680 FRANK R. JANSEN and 0021257 LILLIAN LaCRAMPE DOAH NO. 82-2891 Respondent. /
The Issue Whether or not the Respondent, Michael H. Cohen, based on conduct set forth hereinafter in detail, is guilty of fraud, misrepresentation, false promises and breach of trust in a business transaction in the State of Florida, in violation of subsection 475.25(1)(b), Florida Statutes (1979). Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the transcript of the proceedings, and the entire record compiled herein, I hereby make the following relevant:
Findings Of Fact By its Administrative Complaint filed herein signed September 29, 1981, the Petitioner, Florida Real Estate Commission (herein called the "Commission" or "Petitioner") seeks to suspend, revoke, or take other disciplinary action against the Respondent as licensee, and against his license as a real estate broker under the laws of the State of Florida. Respondent is a licensed real estate broker who has been issued license No. 0209033. On February 17, 1978, Michael Rappaport sold ten townhouse units in Collonade Condominiums, 2275 N.E. 122nd Street, North Miami, FLORIDA, to the Respondent. The Respondent purchased the townhouses, by deed, in the name of his mother-in-law, Luz Sanabria. At the time of this conveyance, Michael Rappaport owed $2,400 in condominium assessments to the Collonade Condominium Association and, at that time, foreclosure proceedings by the mortgagee, Dade Federal Savings and Loan Association, were pending for failure to pay the mortgages (by Rappaport). Respondent, as agent for Ms. Sanabria, contacted the condominium association and made promises to pay the past due assessments. As stated, following transfer of the title to the Respondent, there remained owing to the condominium association past due assessments by the Respondent. The Respondent negotiated a settlement with the condominium association for payment of the delinquent assessments; however, the Respondent defaulted on the terms of the settlement for payment of the delinquent assessments. On September 25, 1979, Collonade Condominium Association obtained a judgment against Respondent for $7,094.40 which remained unsatisfied at the time of the hearing herein. It is based upon the above-referred to facts that the Petitioner contends that Respondent is guilty of fraud, misrepresentation, false promises and breach of trust in a business transaction in the State of Florida in violation of subsection 475.25(1)(b), Florida Statutes (1979). Respondent takes the position that (1) he was not the real party in interest inasmuch as he was attempting to execute a favorable transaction on behalf of his mother-in-law, and (2) that he attempted to strike deals, negotiate settlements and that to do otherwise, either in his capacity as a real estate agent or as a son-in-law, he would be remiss. To support his position, Respondent points to the fact that he retained a knowledgeable mortgage broker to remove these properties from foreclosure proceedings and to attempt to renegotiate, restructure or otherwise put these mortgages, which were in foreclosure, back into current status. Additionally, Respondent avers that there is nothing improper respecting his attempt to negotiate a settlement with the condominium association, which was an everyday common practice. Respondent admits that he personally agreed to repay the condominium association, which agreement was defaulted and resulted in a judgment being entered against him. However, Respondent's position is that these were matters of a personal nature and were in no manner conduct amounting to fraud, misrepresentation, concealment and false promises, false pretenses, dishonest dealing by trick, scheme, or device or any other acts of conduct which subject him to disciplinary action pursuant to Section 475.25, Florida Statutes, Subsection 1(b) thereof.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 22nd day of December, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1982. COPIES FURNISHED: Theodore J. Silver, Esquire 9445 Bird Road Miami Florida 33165 Walter F. McQuade, Esquire 700 Northeast 125th Street North Miami, Florida 33161 William Furlow, Esquire Department of Professional Regulation - Legal Section P.O. Box 1900 Orlando, Florida 32802 Mr. C. B. Stafford Executive Director Florida Real Estate Commission P.O. Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Glen H. Miller is a registered real estate broker holding license #0060204 issued by the Florida Real Estate Commission. Miller was the registered real estate broker in a transaction between David and Marsha Ewan, and Roy and Marilyn Cutrell. Miller prepared a contract for sale and purchase of real estate, Exhibit #5, for Roy and Marilyn Cutrell as buyers and presented it to Marsha and David Ewan, as sellers. The terms regarding the mortgage to be assumed in Paragraph B in Section 2 were based upon information given Miller by the Ewans when the property was listed. It is uncontroverted that as of the date the contract was prepared Miller had no knowledge that Ewan had refinanced the house and the mortgage terms had changed. This contract was presented in the presence of the Cutrells to the Ewans on January 20 or 21, 1977. There is a controversy as to when the Cutrells became aware the mortgage terms were different from those stated in the contract. The Ewans testified that they told the Cutrells the terms were different after the contract had been signed by both parties but not in Miller's presence. The Cutrells stated that they learned the mortgage terms were different when they inquired about the mortgage to Fidelity Federal Savings and Loan, holders of the mortgage. This occurred on January 24, 1977. In either event, both parties agree that Miller had no knowledge of the change in the terms of the mortgage until January 24. Miller prepared and presented a new contract to the Ewans and Cutrells which correctly reflected the mortgage data. The Cutrells represented to Miller and the Ewans that they did not consider the mortgage terms important and did not desire to sign the revised contract. The Ewans did not insist upon the revised contract. Subsequently, the Cutrells failed to deliver the additional deposit of $14,000 on February 1, 1977. Their reasons for failure to do so had nothing to do with the amount of the mortgage or the terms thereof. The Cutrells were advised by Miller's wife, a real estate salesman, that they would be in default if they did not deliver the $14,000 additional deposit and if they defaulted they would lose their initial $1,000 deposit. The Cutrells did not contest the forfeiture of their initial deposit and advised that they did not wish to complete the transaction. On February 4, 1977, a check was prepared by the broker to the Ewans in the amount of $700. The Ewans picked this check up on February 7, 1977. The remaining $300 was retained in the escrow account at all times. The Cutrells first demanded the return of the deposit orally on February The subsequently made written demands on February 23, 1977. Between the oral demand and the written demand, the broker reported the controversy existing with the Cutrells to the Florida Real Estate Commission, which eventually resulted in these charges being brought.
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 Glen H. Miller as a registered real estate broker. DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ADDENDUM The Hearing Officer has read and considered the Proposed Findings of Fact and Conclusions of Law submitted by Petitioner, Florida Real Estate Commission. The facts presented in the Recommended Order are based on Substantial and competent evidence contained in the record. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings COPIES FURNISHED: Mark A. Grimes, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Harvey R. Klein, Esquire 333 NW 3rd Avenue Ocala, Florida 32670
