Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Phyllis I. Reaves is now and was at all times material to these proceedings, a licensed real estate salesman in the State of Florida having been issued license number 0351816. Annette J. Ruffin is now and was at all times material to these proceedings, a licensed real estate broker having been issued license number 0076385. From May 2, 1983 to October 18, 1984, Respondent Phyllis I. Reaves was licensed and operating as a real estate salesman in the employ of Respondent Annette J. Ruffin, as broker, c/o International Investment Development Center, Belleair, Florida or Century 21 A Little Bit Country, Brandon, Florida. At all time material hereto, Respondent Phyllis I. Reaves was a licensed mortgage broker in the State of Florida. DOAH CASE NO. 85-1008/1138. COUNT I No evidence was presented concerning the allegations in Count I.. COUNT II No evidence was presented concerning the factual allegations of Count II. COUNT III No evidence was presented concerning the allegations of Count III. COUNT IV On June 10, 1983, Respondent Reaves entered into a real estate sales contract with Emmett K. Singleton, as seller to purchase certain real estate through the use of a land trust. The sales contract listed a total purchase price of $67,000. C-21 A Little Bit Country was listed on the contract as escrow agent of the binder deposit. The property had an existing first mortgage of approximately $33,854. Respondent Reaves agreed to assume the new mortgage and requested that Mr. Singleton obtain a second mortgage in the principal amount of $26,400. Reaves agreed to assume this second mortgage amount while allowing Mr. Singleton to keep the proceeds. Mr. Singleton agreed that the balance of the sales price would be paid via a purchase money mortgage to Respondent Reaves in the principal amount of $9,643.99. Respondent Phyllis I. Reaves executed a Hold Harmless and Indemnity Agreement which read as follows: "Phyllis Reaves does agree to hold Emmett K. Singleton harmless and does idemnify him against any future liability or losses related to the mortgage on subject property at 1912 Hastings Drive, Clearwater, Florida." The sales transaction closed on July 7, 1983, and Respondent Reaves received a real estate brokerage commission in the amount of $1,955. The contract provided that the "listing agent agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." The purchase money mortgage note was actually signed by Michael R. Fisher, as trustee, and not by Respondent Reaves. Respondent Reaves requested that Mr. Singleton give her the mortgage payment booklets and she would assume and pay off the existing and second mortgages. Singleton trusted Reaves and relied upon her statements that she would do as she promised. Respondent Reaves failed to assume and pay the notes and mortgages and thereby caused the seller to become delinquent with the lenders. After closing, Respondent Reaves, acting as the owner, obtained tenants for the property and collected rental payments. Respondent Reaves solicited and obtained $3,000 in connection with a lease/option agreement. The lease/option agreement provided that the sales price of the home would be $78,000 in three years. The rent would remain at $495 per month for three (3) years. The agreement further provided that $3,000 per year would be paid for three (3) years which would reflect a total down payment of $9,000. This down payment was considered the "option consideration." The agreement provided that one third of the option money would be returned if the option were not exercised. The tenants paid Respondent Reaves a total of $3,000 of the option consideration. The renters became concerned when they began to receive notices from Freedom Mortgage Company stating that certain mortgages on the home were overdue. The renters did not exercise the option to buy the home. The renter requested, but did not receive, $1,000 of the $3,000 option consideration back from Respondent Reaves. COUNT V On July 6, 1983, Respondent Reaves entered into a real estate sales contract with Stephen B. Barnes, as seller, to purchase certain real estate through the use of a land trust. The property was not listed", but a broker from Tam-Bay Realty approached Barnes and stated that he had a buyer. The purchase and sale agreement provided for a total purchase price of $91,000. The agreement listed "C-21 A Little Bit Country" as escrow-agent for the binder deposit. In addition, the purchase and sales agreement provided that: "Listing agent Tam-Bay agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." The seller agreed that he would allow Respondent Reaves to assume the existing mortgage of approximately $52,990. Mr. Barnes then agreed to obtain a second mortgage in the amount of $18,925. The seller agreed that the balance of the sales price would be paid via a purchase money mortgage in the principal amount of $16,670.91 to be paid by Respondent Reaves. In addition, Mr. Barnes obtained a home improvement loan in the amount of $4,900. According to the agreements between Respondent Reaves and Mr. Barnes, Mr. Barnes was to keep the money obtained by the second mortgage and the home improvement loan. Respondent Reaves agreed to assume the existing mortgage, the second mortgage and the home improvement loan. Respondent Reaves advised Mr. Barnes to state to the lender that the purpose of the loans were for home improvements. Respondent Reaves executed a hold harmless and indemnity agreement which stated as follows: "Phyllis Reaves does agree to hold Stephen. B. Barnes harmless and does indemnify him against any future liability or losses related to the mortgages on property at 13222 - 88 Place North, Seminole, Florida." The sales transaction closed on August 10, 1983, and Respondent Reaves received a real estate brokerage commission in the amount of $2,513.45 and a mortgage brokerage fee of $946.25. Respondent Reaves failed to assume and pay the notes and mortgages and thereby caused the seller to become delinquent with the lenders. COUNT VI On September 3, 1983 Respondent Reaves entered into a real estate sales contract with Floyd and Christine Erwin, as sellers, to purchase certain real estate through the use of a land trust. The contract concerned Floyd and Christine Erwins' home located at 2805 Candlewood Drive in Clearwater, Florida. The purchase and sale agreement provided for a total purchase price of $53,000. The agreement listed C-21 A Little Bit Country as escrow agent for the binder deposit. The agreement further provided that the "listing agent agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." Respondent Reaves agreed to assume the existing mortgages of $16,766.29 and $17,457.94. In addition, the sellers agreed to obtain a new mortgage in the principal amount of $4,900 and a $1,500 personal loan. Upon the advice of Respondent Reaves, the sellers stated to the lender that the purpose of the loans were for home improvements. Respondent Reaves and the sellers agreed that the sellers would keep the money obtained by the loans and that Respondent Reaves would assume the mortgages and make all of the required loan payments. The sellers agreed that the balance of the sales price was to be paid via a purchase money mortgage, payable by Respondent Reaves, in the principal amount of $12,375.77. Respondent Reaves executed a hold harmless and indemnity agreement which stated as follows: "Phyllis Reaves does agree to hold Floyd S. Erwin and Christine E. Erwin harmless and does indemnify them against any future liability or losses related to mortgages or liens on the subject property at 2805 Candlewood Drive, Clearwater, Florida." Floyd and Christine Erwin's home was listed with a broker, and the Erwins understood that Reaves was not their agent. Respondent Reaves told the Erwins that she was representing "some investors." The purchase money mortgage note was actually signed by "Michael R. Fisher, as trustee and not personally." Respondent Reaves made some payments on the purchase money mortgage note which was signed by Michael Fisher. The sales transaction closed on September 23, 1983, and Respondent Reaves received a real estate brokerage commission in the amount of $1,555.50. Respondent Reaves failed to assume and pay the mortgages and notes. Respondent Reaves has not made the payments due on the mortgages and notes and has caused the Erwins to become delinquent with their lenders. COUNT VII The evidence presented concerning Count VII consisted solely of documentary evidence. For reasons enumerated in the Conclusions of Law section, infra, the documents alone are insufficient to establish the basis of any offense. Therefore, a discussion of those documents would serve no useful purpose. COUNT VIII On October 16, 1983, Respondent Reaves entered into a real estate sales contract with Patricia and William Willis as sellers, to purchase certain real estate through the use of land trust. The contract concerned the Willis' home located at 417 North Missouri Avenue, Clearwater, Florida. The purchase and sale agreement provided for a total purchase price of $54,000. The agreement listed C-21 A Little Bit Country as escrow agent for the binder deposit. The agreement further provided that the listing agent ". . . agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." Respondent Reaves and the Willis' agreed that Respondent would assume the existing mortgage of $15,396.52. The sellers agreed to obtain the new mortgage in the principal amount of $34,100. The sellers agreed that the balance of the sales price would be paid via a purchase money mortgage in the principal amount of $8,898.45 to be paid by Respondent Reaves. Respondent Reaves agreed to assume the existing mortgage and the new mortgage in the amount of $34,100 and make all of the required loan payments. Respondent Reaves advised the Willis' to state to the lender that the purpose of the $34,100 mortgage loan was for home improvements. The Willis' applied for the loan but refused to state that the purpose of the loan was for home improvements. Respondent Reaves executed a hold harmless agreement which stated as follows: "Phyllis Reaves does agree to hold Patricia L. Carrah, a/k/a Patricia L. Willis and William Willis harmless and does idemnify them against any future liability for losses related to any mortgages or liens on the subject property " The sales transaction closed on November 23, 1983 and Respondent Phyllis Reaves received a real estate brokerage commission in the amount of $3,213 and a mortgage brokerage fee of $2,216. Respondent Reaves failed to assume the notes and mortgages and thereby caused the sellers to become delinquent with their lenders. COUNT IX No evidence was presented concerning the allegations of Count IX. COUNT X No evidence was presented concerning the allegations of Count X. COUNT XI No evidence was presented concerning the factual allegations of Count XI. COUNT XII No evidence was presented concerning the factual allegations of Count XII. COUNT XIII No evidence was presented concerning the factual allegations of Count XIII. No evidence was presented concerning the factual allegations of Count XIV. COUNT XV on January 13, 1984, Respondent Reaves entered into a real estate sales contract with Clifford and Virginia Miner, as sellers, to purchase certain real estate through the use of a land trust. The contract concerned the Miner's home located at 1247 Burma Avenue, Clearwater, Florida. The purchase and sale agreement provided for a total purchase price of $62,000. The agreement listed "C-21 A Little Bit Country" as escrow agent for the binder deposit. In addition, the agreement provided that the listing agent ". . . agrees to pay C-21 A Little Bit Country cooperating agent 3.5% of the total purchase price on closing." Respondent Reaves and the sellers agreed that Respondent Reaves would assume the existing mortgage of $34,424.82. Respondent Reaves advised the sellers to obtain a $20,000 second mortgage that she would also assume. The sellers were to obtain the mortgage and keep the money as their equity, and Respondent Reaves was to assume the mortgage and make the payments. The sellers agreed that the balance of the sales price was to be paid via a purchase money mortgage in the principal amount of $6,865.33, payable by Respondent Reaves. Respondent Reaves promised the sellers that she would make all the required loan payments and assume the mortgages. Respondent Reaves executed a hold harmless agreement which stated as follows: "Phyllis Reaves does agree to hold Clifford S. Miner and Virginia N. Miner, his wife, harmless and does idemnify them against any future liability or losses related to any mortgages or liens on the subject property . . . ." The purchase money mortgage note was actually signed by Michael R. Fisher, "as trustee and not personally." Respondent Reaves told Mr. Miner that the hold harmless agreement provided additional assurance that she would personally assume all of the mortgage and loans. The sales transaction closed on January 31, 1984, and Respondent Phyllis Reaves received a real estate brokerage commission in the amount of $1,823.25 and a mortgage brokerage fee of $949.48. Respondent Reaves failed to assume and pay the notes and caused the Miners to become delinquent with their lenders, requiring them to "catch up" on the delinquent loan. COUNTS XVI, XVII AND XVIII. The evidence presented concerning Count XVI, XVII and XVIII consisted solely of documentary evidence. For reasons enumerated in the Conclusions of Law section of this Recommended Order, the documents alone are insufficient to establish the basis of any offense. Therefore, a discussion of those documents would serve no useful purpose. COUNT XIX During the later part of 1984, an investigator, representing the Department of Professional Regulation, went to speak to Mrs. Ruffin at her "Little Bit of Country" office concerning this case. The investigator requested that he be provided with the records from all of Respondent Reaves' transactions. Respondent Ruffin stated that she was unaware of the particular real estate transactions in question, but that she would check and provide the records at a later date because she was in the process of moving the location of her office. After subpoena was served, Respondent's counsel provided one of the documents in question. COUNT XX Respondent Ruffin employed Respondent Reaves as a salesman. Respondent Ruffin thought of Respondent Reaves as "an independent contractor." Respondent Reaves decided on her own hours and took care of her own transportation. Respondent Ruffin and Respondent Reaves were on an 85%-15% split fee arrangement. Respondent Ruffin knew that Reaves was interested in "buying a lot of property." Respondent Ruffin was basically aware of the method that Respondent Reaves was using to obtain property. Respondent Ruffin did not feel that the method was wrong, however, she did ask Respondent Reaves to leave employment after she received many calls complaining about Respondent Reaves and information that Respondent was in a "tight financial situation." Respondent Ruffin admitted that she had very little time to provide assistance or guidance to Respondent Reaves. DOAH CASE NO. 85-2454 COUNT I There was no evidence presented concerning the factual allegations of Count I. COUNT II There was no evidence concerning the factual allegations of Count II. COUNT III On October 2, 1984, an investigator, representing the Department of Professional Regulation, went to speak with Respondent Ruffin at her office. The investigator requested certain records relating to Respondent Reaves' transactions concerning the charges herein. Respondent Ruffin stated that she was unaware of the particular real estate transactions in question, but that she would check and provide the records at a later date because she was then in the process of moving her office. After a subpoena was served, Respondent Ruffin's attorney provided one of the documents in question. COUNT IV There was no evidence presented concerning the factual allegations of Count IV of DOAH Case No. 85-2454.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent Phyllis I. Reaves' license as a real estate salesman be revoked; and, RECOMMENDED that Respondent Annette J. Ruffin be issued a written reprimand and assessed an administrative fine of $500.00. DONE and ORDERED this 27th day of March, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1986. APPENDIX 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 parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 3. Adopted in Findings of Fact 8 and 11. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 15 and 16. Partially adopted in Finding of Fact 17. Matters not included therein are rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 20. Adopted in Findings of Fact 20 and 21. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 26. Adopted in Findings of Fact 26 and 27. Adopted in Findings of Fact 31 and 32. Adopted in Finding of Fact 34. Adopted in Findings of Fact 37 and 38. Adopted in Findings of Fact 36 and 38. Adopted in Finding of Fact 40. Adopted in Finding of Fact 47. Adopted in Finding of Fact 49. Adopted in Findings of Fact 49 and 50. Adopted in Finding of Fact 55. Rejected as not supported by competent, substantial evidence. Rejected as not supported by competent, substantial evidence. Rejected as not supported by competent, substantial evidence. Rejected as not supported by competent, substantial evidence. Adopted in Finding of Fact 57. Adopted in Finding of Fact 58. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Gerald Nelson, Esquire 4950 West Kennedy Boulevard Tampa, Florida 33809 E. A. Goodale, Esquire 14320 Indian Rocks Road Largo, Florida 33540 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact The Defendant was at all material times registered with the Florida Real Estate Commission as a real estate broker. (See: Plaintiff's Exhibit 7). During June, July, and August, 1973, the Defendant acted as a real estate broker in negotiating a real property transaction between Michael Scott Symons and Bonnie Jo Symons as buyers, and William C. McDonald as seller. The Symons made an initial offer to purchase certain real estate owned by McDonald for $50,000. The Symons agreed to assume a first mortgage, to execute a purchase money second mortgage, and to pay $5,000 in cash. This offer was made in the form of a contract to purchase which was executed by the Symons on June 19, 1973. (See Plaintiff's Exhibit 1). At the time that this contract was executed, it was expressly understood between the Symons and the Defendant that $2,000 of the $5,000 which was to be paid by the Symons to McDonald at the time of closing would be in the form of a 1967 Pontiac automobile. The automobile would be delivered to McDonald at the time of closing along with $3,000 in cash. The day after the contract was executed, the Symons delivered the automobile to the Defendant along with the evidence of title that they had in their possession. McDonald rejected the Symons' first offer. He did not wish to take the automobile as a part of the down payment. The Defendant notified the Symons that McDonald had rejected their offer. The Defendant then informed the Symons that he would take the automobile as a part of the commission which would be due to him from McDonald, and that they should offer to purchase the property for $50,000, with the automobile serving as a part of the Defendant's commission. He advised the Symons that for tax reasons McDonald would want the purchase price to be reflected as $48,000, with the automobile not appearing as a part of the transaction even though it would be taken by the Defendant as a portion of his commission. The Symons then made a second offer to purchase the property in the form of a contract to purchase. (See: Plaintiff's Exhibit 3). The purchase price was reflected as $48,000. The Symons agreed to assume an existing first mortgage, an to execute a purchase money second mortgage. Five thousand ninety dollars would be paid by the buyers to the seller at the time of closing. When they executed this agreement, the Symons delivered a $1,000 deposit to the Defendant. (See: Plaintiff's Exhibit 4). The Defendant loaned the Symons $600 in order that they could make this deposit. The Symons gave the Defendant a note for this amount. (See: Defendant's Exhibit 1). When he presented the Symons' second offer to McDonald, the Defendant did not advise McDonald that the automobile would play any part in the transaction. McDonald was not told that the automobile would serve as a portion of the Defendant's commission or that the buyers thought that they were making an offer for $50,000 which included the automobile as a part of the Defendant's commission. McDonald ultimately accepted the Symons offer as reflected in Plaintiff's Exhibit 3. Some time during August, 1973, Mr. Symons and Mr. McDonald had a conversation during which Symons learned that McDonald was not aware that the automobile was playing any part in the transaction, and McDonald learned that the automobile was st 11 a factor in the transaction. The Symons then opted to withdraw from the transaction. (See: Plaintiff's Exhibit 5, Defendant's Exhibit 3). Mr. Symons acknowledged that he was at least in part at fault for withdrawing from the contract, and he, anticipated that his $1,000 deposit would be forfeited. Prior to the time that Symons and McDonald communicated with one another about their respective understandings of the transaction, the Defendant used the Pontiac automobile as a trade-in on another automobile. The Defendant was credited $600 as a trade-in allowance. This automobile transaction was undertaken in the name of Nancy Lee Mann. Ms. Mann was dating the Defendant at that time, and acted as a straw person in the transaction in order to allow the Defendant to obtain financing of a new automobile. (See: Plaintiff's Composite Exhibit 6, and Defendant's Exhibit 2). After the transaction between the Symons and McDonald failed to close, the Defendant distributed $500 to McDonald and $700 to the Symons. (See: Defendant's Exhibits 9 and 12). He also returned the $600 note to the Symons. The automobile was no longer in the possession of the Defendant. The Symons had delivered $1,000 and the automobile to the Defendant. The Defendant had loaned them $600 in order to make the $1,000 deposit. When the transaction failed to close, the Symons received $700 and the promissory note. The Symons apparently agreed, albeit reluctantly to forfeit the $1,000 deposit. They thus received $1,300 for their automobile, which was the approximate market value of the automobile. When the transaction failed to close McDonald received $500, which represented half of the Symons' forfeited deposit. During the course of the transaction, the Defendant received $1,000 and the automobile. Six hundred dollars of the $1,000 was actually his own money. He ultimately disbursed $1,200. He was therefore out-of-pocket $800 on the transaction, but he retained the automobile for which he had already received $600 as a trade-in allowance on another automobile. During June and July, 1974, the Defendant negotiated a real estate transaction involving Richard and Ruth Ann Barnum, Calvin W. and Helen M. Bruce, and himself. The Barnums were seeking to sell their residence through another real estate broker. Their listing was placed on a Multiple Listing Service. On June 19, 1974, the Defendant located a potential purchaser of the Barnums property, Edward E. and Lisabeth L. Sharpe. The Sharpes offered to purchase the property for $25,000. The offer was made in the form of a contract to purchase which was executed on June 19, 1974. The Barnums refused the offer and informed the Defendant that they would accept $26,000. The Barnums crossed out references to $25,000 on the contract that the Sharpes had executed and wrote in $26,000. The Sharpes rejected the $26,000 offer. The Defendant then decided to purchase the property from the Barnums for $26,000. He erased the Sharpes' names from the contract and inserted his own name. (See: Defendant's Exhibit 11). The contract reflects that it was made on June 19, 1974, but it was actually executed by the Defendant on June 20, 1974. The Defendant told the Barnums that he was purchasing the home for himself, and that he might move his father into the home or rent it. The transaction between the Barnums and the Defendant closed on July 2, 1974. (See: Plaintiff's Exhibits 10, 11, 12) Prior to June 19, 1974, the Defendant had acted as a real estate broker in seeking to find a home for purchase by Calvin W. and Helen M. Bruce. He had shown the Bruces through at1east a half dozen homes, but the Bruces were not satisfied with any of them. Some time prior to June 23, 1974, the Defendant left a message for the Bruces at their motel in Fort Myers. The Bruces were not in town and received the message to see the Defendant when they returned. On June 23rd, the Bruces returned to Fort Myers, contacted the Defendant, and were shown the Barnum's home. Mr. Pepper showed them no other homes on that date. The Bruces liked the home and agreed to purchase it from the Defendant for $27,500. The Contract to Purchase was executed on June 24, 1974. The Bruces were not informed that the Defendant had agreed to purchase the home only four days previously, nor that the transaction between the Defendant and the Barnums had not yet closed. The transaction between the Defendant and the Bruces closed on July 2, 1974 only hours after the transaction between the Barnums and the Defendant closed. As a part of the purchase price that he paid the Barnums, the Defendant gave the Barnums a second mortgage in the amount of $5,000. As a part of the purchase price paid by the Bruces to the Defendant, the Bruces agreed to execute a second mortgage to the Defendant in the amount of $5,750. The Defendant at no time advised the Bruces that they were taking the property subject to his second mortgage to the Barnums. The Bruces did not learn of this second mortgage until approximately one year after the transaction closed. After the two transactions closed, the Defendant-received very little cash, but he did receive a small profit. On December 20, 1966, the Florida Real Estate Commission suspended the Defendant's registration as a real estate broker for a period of 60 days, based upon the Defendant's being found guilty of violating Florida Statutes Sections 745.25(1)(a) , (c), (See: Plaintiff's Exhibit 8). On June 3, 1974, the Florida Real Estate Commission suspended the registration of the Defendant as a real estate broker for a period of 90 days, based upon the Defendant being found guilty of a violation of Florida Statutes Section 475.25(1)(a). (See: Plaintiff's Exhibit 9).
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, Florida Statutes, as set forth in Administrative Complaint, dated December 4, 1981. This proceeding involves allegations by the Florida Board of Real Estate (now Florida Real Estate Commission) that Respondent, James R. Siebert, violated Subsection 475.25(1)(h) Florida Statutes, by sharing a commission with a person not properly licensed under the real estate law, and that he employed a person as a salesman who is not the holder of a valid license, in violation of Subsection 475.42(1)(c) , Florida Statutes, and therefore in violation of Subsection 475.25(1)(a), Florida Statutes. The incident which prompted the Administrative Complaint involved an auction sale of a restaurant in Brooksville, Florida which was conducted by an auctioneer who did not have a license to practice real estate in Florida. Respondent requested an administrative hearing and filed an answer to the Administrative Complaint admitting the occurrence of the auction, but denying that it involved the sale of real estate.
Findings Of Fact Respondent, James L. Siebert, is a licensed real estate broker at Orange Lake, Florida, and was so licensed at all times relevant in this proceeding. (Stipulation) On several occasions prior to February 21, 1981, Respondent had gratuitously assisted Albert W. (Billy) Mitchell, an auctioneer, in conducting auctions by serving as a "ring man" and clerk. A "ring man" normally is one of several such individuals at an auction who assists the auctioneer by encouraging bidding and identifying bidders. Mitchell is not licensed under real estate laws of Florida, but operates under a local occupation license. None of the prior auctions in which Respondent assisted Mitchell involved the sale of real estate. (Testimony of Respondent, Mitchell) On January 28, 1981, Mitchell entered into an "auction sale contract" with Welberta Pruitt whereby Mitchell agreed to sell at auction to the highest and best bidder: . . . the following described business and personal property owned by the Party of the First Part: Pruitts Golden Wagon Steak House Restaurant and Contents on attached inventory list and located 1702 Howell Avenue, Brooksville, in Hernando County, State of Florida. The terms of this sale shall be 10 percent of the amount of the purchase price to be paid on day of sale and the balance to be paid as follows: On delivery of title - There is a mortgage on the business of $67,838.20 with interest at 8 3/4 percent on the unpaid balance. The attachment to the contract listed various items of food supplies and restaurant furniture and equipment, plus decorative items of personal property. Pruitt and her husband had purchased the real property on which the restaurant building was located under an agreement for deed in 1979 which provided that the Pruitts would make the payments on a mortgage of about $67,000 from the sellers to the First Federal Savings and Loan Association of Citrus County and, when such mortgage was paid in full, the sellers would convey title to the property by warranty deed. The contract reflected that the total purchase price of the property was $75,000, and that a down payment had been made in the sum of $7,000. Mrs. Pruitt owned furniture, fixtures and equipment which she transported from Tennessee to operate a restaurant on the premises. (Testimony of W. Pruit Kelly, Mitchell, Johnston, Respondent's Exhibits 1,2) It was the understanding of the parties to the auction agreement that only the personal property in and around the restaurant building would be sold to the highest bidder, and it was anticipated that the successful bidder would take up the mortgage payments on the real property. The equity which the Pruitts had acquired by prior mortgage payments was to be "given" to whoever purchased the "business" at the auction. Accordingly, on February 20, 1981, the day preceding the auction, Mrs. Pruitt issued a "notice" that she would sell her "entire Restaurant, business, furnishings, equipment, and Inventory at Public Auction". The notice further stated that she would give her equity in the real estate to the purchaser on which there was an existing mortgage of $67,821.36 "that you may assume". The noticewas placed on the door of the restaurant. In addition, Mitchell issued a brochure advertising the auction wherein it was stated that the "entire business, furnishings, equipment, and stock" would he sold at absolute auction and that the purchaser would have the "privilege of assuming the payments on the existing mortgage." Mitchell had Respondent's name placed at the bottom of the brochure without Respondent's knowledge because he thought it would be a good advertisement for him. (Testimony of Mitchell, W. Pruitt, Petitioner's Exhibit 3, Respondent's Exhibit 3) Mitchell asked Respondent to assist at the Pruitt auction and told him that since Mrs. Pruitt and her attorney were having a disagreement, it might be necessary for Respondent to write the contract resulting from the auction. No fee for Respondent's services was discussed prior to the auction. (Testimony of Mitchell, Respondent) On February 21, 1981, the auction was conducted at the restaurant in Brooksville, and Respondent was present to act as a "ring man". There were only about 3 individuals who entered bids at the auction. Prior to receiving bids, Mitchell announced that he was auctioning the contents of the business and that whoever bought the property would take over the payments on the mortgage. The successful bidder was Robert Shrader, who bid $9,600. He made a 20 percent down payment at the time in the amount of $1,920 which Mitchell retained as a commission on the sale. Mitchell had not described the real estate at the auction, but merely stated that he was auctioning the business and that Mrs. Pruitt would give the successful bidder her equity in the property. After accepting Schrader's bid, Mitchell gave the figures on the sale to Respondent who prepared a standard contract for sale and purchase of the real estate in the total amount of $77,421.36. The contract reflected a deposit of $1,920 to be held in escrow by Billy Mitchell and Associates, that the contract was subject to assumption of a mortgage of $67,821.36, and that there would be a balance of $7,680. Shrader and Mrs. Pruitt signed the agreement on February 21, 1981, which was witnessed by Mitchell and Respondent. Although no brokerage fee was listed, Respondent signed as broker on the contract. He testified at the hearing that he had done this out of habit. A real estate contract was prepared rather than merely a bill of sale of the personal property in order that the parties would have the figures they needed to close which they could take to the closing attorneys. After the auction, Mitchell gave Respondent $200 as a gift for his gasoline and other expenses on the Pruitt and prior auctions. Respondent testified, and Mitchell confirmed, that the latter insisted that he accept that amount as reimbursement for expenses. (Testimony of Mitchell, Respondent, Petitioner's Exhibit 1) On April 6, 1981, Joseph P. Johnston, an attorney in Brooksville, closed the transaction by means of a bill of sale for the furnishings and equipment in Pruitts restaurant, and assignment of the Pruitt interest in the mortgaged real property. The closing statement reflected that a "broker's commission" in the amount of $1,920 was held by the "broker" to apply on commission, In actuality, the sum retained by Mitchell as a commission was based solely upon a percentage of the personal property sold at auction. (Testimony of Johnston, Mitchell, Petitioner's Exhibit 2)
Recommendation That the Florida Real Estate Commission dismiss the charges against Respondent, James R. Siebert. DONE and ENTERED this 3d day of June, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 3d day of June, 1982 COPIES FURNISHED: Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harvey R. Klein, Esquire Klein & Klein 333 North West 3rd Avenue Ocala, Florida 32670 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact At all times relevant hereto, Jon A. McVety was registered with the Florida Real Estate Commission as a salesman affiliated with Lee County Realty, Inc., a corporate broker. Frederick C. Huth was the qualifying broker for Lee County Realty, Inc. On March 26, 1986, Frederick C. Huth entered into a contract to purchase a residence in Fort Myers Beach from Larry and June Hildreth, the owners of the residence. The contract provided for a deposit of $500 to be held in escrow by Lee County Realty, Inc., and was contingent upon the buyer, Huth, obtaining a firm commitment for a first mortgage loan within 30 days for $37,000 with interest at 11 percent and payments amortized over a 30-year period. (Exhibit 5) For his $500 down payment, Huth, unbeknownst to the sellers, signed a promissory note for $500. Huth had formerly owned and operated a motel on Fort Myers Beach which went bankrupt. Huth called several lending institutions to obtain financing pursuant to the contract, but when he disclosed his bankruptcy, he was disapproved. He never submitted a formal application for a loan. By letter dated April 23, 1986, Huth advised the Hildreths that he was unable to obtain financing pursuant to the contract and would be unable to close the deal. At this time, Huth made no reference to his deposit. Between March 26 and Huth's resignation, Huth showed McVety the promissory note he had signed. In response to the question asking if he knew what McVety did with the note, Huth answered (TR p. 12): Well, we couldn't put a note in an escrow account so we really didn't know what to do with it, to tell you the truth. So we put it in his desk drawer, as I remember. With regard to disposition of the promissory note, Huth later testified at TR p. 26, "I think I--my words were something to the effect, I don't know what to do with this. Would you like to stick it in your drawer?" By letter to McVety dated April 22, 1986, which was not received by McVety until April 30, Huth resigned as broker for Lee County Realty, Inc., and the company ceased doing business until a new qualifying broker was obtained. At Huth's request and upon receipt of Huth's resignation, McVety returned the promissory note to Buth. Huth advised McVety that he had been unable to obtain financing for the purchase and, before any other demand was made, McVety returned the promissory note to Huth. Prior to his resignation, Huth had given McVety no other instructions regarding the promissory note, nor had he made McVety aware of the contract between him and Hildreth. Subsequent to Huth's departure, a certified letter addressed to Huth at Lee County Realty from Hildreth, dated May 3, 1986, was received and opened by McVety (Exhibit 7). This letter demanded the $500 down payment on the contract be forfeited and paid to the sellers. At this time the promissory note was no longer in the possession of McVety or Lee County Realty. By letter dated May 7, 1986 (Exhibit 8), McVety, as registered owner of Lee County Realty, Inc., responded to Hildreth that the $500 deposit had been returned to Huth when the transaction did not close, that Huth was no longer associated with Lee County Realty, and that further inquiry should be addressed to Huth at the latter's residence. When the $500 deposit was not forwarded, June Hildreth apparently filed a formal complaint with the Real Estate Commission as she had threatened to do in her letter of May 3, 1986 (Exhibit 7). Following an investigation, Huth voluntarily surrendered his license for revocation and on August 25, 1986, a final order was entered revoking Huth's license as a broker (Exhibit 10). This action did not result in Hildreth receiving the $500 deposit she had demanded and no evidence was presented regarding any action taken to have this $500 given to her. However, on September 23, 1986, these charges against McVety were signed, they were filed on October 1, 1986, and these proceedings commenced. McVety's only connection with the controversy between Huth and Hildreth is that at the time the contract was signed, he owned all of the stock in Lee County Realty and he wrote the Hildreths one letter advising them Huth was no longer associated with Lee County Realty. The evidence is uncontradicted that McVety was unaware of the transaction until Huth resigned as broker and the real estate business was forced to close until a new qualifying broker was obtained. That this business was closed is confirmed by Hildreth's testimony that when she called the realty office after Huth's departure, only an answering machine responded with a recorded message. While he was active broker for Lee County Realty, Inc., Huth was also president and secretary of the company (Exhibit 2). No evidence was submitted suggesting that Huth was other than the chief operating officer of the company while he served as active broker, that McVety had knowledge of the contract (Exhibit 5) before Huth's resignation, or even saw a copy of this contract before receiving a copy attached to the Administrative Complaint in October 1986.
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
Findings Of Fact Petitioner is a state 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 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Paul F. Savich is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0077390 in accordance with Chapter 475, Florida Statutes. Respondent, Ernest M. Haefele, is a licensed real estate broker, having been issued license number 0517821 in accordance with Chapter 475, Florida Statutes. On October 1, 1984, the Respondents, purchasers in their individual capacities, entered into a contract for deed to a tract at the Tropical Acres Subdivision, with Tropical Sites, Inc., and Angie S. Crosby and Eugene T. Crosby, at a sales price of $9,046.50. Said amount to be paid at the rate of $90 per month until paid. Pursuant to the agreement, the Respondents agreed not to assign the agreement without the permission of Tropical Sites, Inc. A closing was held on May 8, 1990, and the Respondents transferred possession of the tract by assignment of contract to Leroy H. and Charlotte Beard. A mobile home on the real property was part of the purchase price for a total sales price of $39,000.00 The agreement called for a down payment of $2,000 to the Respondent Savich. The Beards also signed a mortgage note in favor of the Respondents Savich and Haffele, for $37,000. The note was payable at the rate of $373.15 per month. Upon payment in full, Respondents were obligated to deliver a good and sufficient deed to the property to the purchasers. At the closing, Respondent Haefele was not present. The Beards received two documents at closing, a contract for sale and one other document, but did not receive a copy of the original agreement for deed, a disclosure statement, or a title to the trailer on the tract. In addition, Respondent Savich did not seek permission of Tropical Sites, Inc., prior to the closing. Prior to the closing, the Beards moved onto the property, and subsequently began making monthly payments of $373.15 to Respondent Savich. The Beards had purchased two or three pieces of property in the past, but had always gone through a bank. In relation to this agreement, they understood the nature of the transaction at the time of the closing. In early 1991, Mr. Beard made a telephone inquiry to the County property appraiser's office as to the status of the property for homestead exemption purposes. He was advised that Tropical Sites, Inc. was the current owner of the tract, and that he was not eligible for homestead exemption. The Beards did not apply for homestead exemption at the appraiser's office. In August 1991, the Beards stopped making payments to the Respondents on the advice of their attorney, but continued to reside on the premises until December 1991. In November 1991, an attorney acting on behalf of the Beards made a demand upon Respondent Paul F. Savich for the return of the $2,000.00 deposit. The Respondents did not return the $2,000.00 deposit or otherwise pay the money claimed by the Beards. In his dealings with the Beards, Respondent Savich did not withhold information, lie or mislead the purchasers. They simply were unhappy with the agreement, and decided to get out of it when they recognized that they would not receive title to the mobile home and property until the note was paid in full. In early 1992, the Beards quitclaimed their interest to the property to Respondent Savich's former wife, and they were released from their obligations under the note.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Counts I and II of the Administrative Complaint filed against Respondents Paul F. Savich and Earnest M. Haefele be DISMISSED. DONE AND ENTERED this 30th day of November, 1992, 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 30th day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Adopted in substance: paragraphs 1,2,3,4,5,6,7(in part),8,9(in part)10,11,12,13 Rejected as against the greater weight of evidence: paragraphs 7(in part: the $2,000 was a down payment, not an earnest money deposit), 9(in part: the Beards moved on to the property prior to closing. Respondent's proposed findings of fact: Respondent submitted a proposed order with unnumbered paragraphs which partially recounted the testimony of several of the witnesses and combined facts and conclusions of law. Therefore, a separate ruling on Respondent's proposals are not possible. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR - Division of Real Estate 400 W. Robinson Street #N-308 Orlando, FL 32801-1772 J. Stanford Lifsey, Esquire 101 E. Kennedy Blvd., Ste. 1465 Tampa, Florida 33602 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, William D. Manser (Respondent) was licensed in Florida as a real estate broker, having been issued license number BK 0427410. Respondent was a broker/officer of United Equity Marketing, Inc., located at 6635 West Commercial Boulevard, Tamarac, Florida. Since October 1, 1995, his broker's license has not been on an active status due to non-renewal of the corporate registration. By warranty deed dated February 14, 1992, James and Angela Cunduff became owners of property located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. By Articles of Agreement for Deed dated February 25, 1992, James and Angela Cunduff agreed to convey the property to Respondent's corporation, United Capital Networks, Inc., if certain conditions were complied with. The conditions included Respondent's corporation making all the mortgage payments and paying the taxes on the property, and keeping the buildings on the property properly insured. In return, James and Angela Cunduff agreed, among other things, to execute a warranty deed to Respondent's corporation and to place the warranty deed in escrow. Respondent and the Cunduffs agreed that the Articles of Agreement for Deed would not be recorded. Respondent looked upon himself and conducted his actions as the owner of the property at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. On October 31, 1995, Mary J. Augustine signed a lease agreement for the rental of a portion of the home, the rear of the home, located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. The rear area of the home had its own entrance. The rental was for one year, beginning November 15, 1995, and ending October 30, 1996. Respondent used part of the home as a storage area. At the front of the home, there were two separate entrances. One of the separate entrances was for the storage area. The other separate entrance was for another area of the home. The lease agreement indicated United Equity Markets, Inc., as the managing agent of the property. The lease agreement required signatures of the "Tenant" and the "Lessor." Ms. Augustine signed the lease as "Tenant," and Respondent signed as "Lessor," adding the word "Agent" next to his signature. United Equity Markets, Inc., is Respondent's corporation. Prior to the signing of the lease, Respondent had met with Ms. Augustine at the house at least twice before she signed the lease agreement. Respondent represented himself as the manager of the property. The home was listed as a single-family residence. Ms. Augustine believed that the home would be occupied by Respondent, another tenant, and herself. The evidence is insufficient to show and make a finding that three families would live or had lived at the home. In accordance with the lease agreement, Ms. Augustine gave Respondent $1,290, as a security deposit. Ms. Augustine had also given Respondent, prior to the security deposit, $645 for the first month's rent. Ms. Augustine wanted to move into the rear portion of the home approximately two weeks prior to the beginning of the rental period. Respondent agreed that Ms. Augustine could have access to the home and clean the rear area where she was going to reside. Ms. Augustine had problems with, such things as, the refrigerator, oven, and swimming pool. She decided not to rent the home. Ms. Augustine demanded her deposit and first month's rent from Respondent. However, he refused to return the monies. The lease agreement contained a default provision, providing for the recovery of damages by the lessor if the tenant defaulted. The lease agreement also contained a security provision, providing for the non-refundable nature of the security deposit under certain conditions, including termination of the lease prior to its expiration. Ms. Augustine attempted but could not contact Respondent at his office because he had closed his office prior to October 1995. Ms. Augustine attempted also to contact Respondent at the telephone number that he had provided her, which was his home number. She was again unsuccessful due to Respondent having his telephone disconnected because he had gone to New York to care for his ill sister. Respondent did not provide Ms. Augustine with an accounting of the monies. Respondent was conducting his own personal real estate transaction with Ms. Augustine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against William D. Manser. DONE AND ENTERED this 24th day of February, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1999.
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined for alleged violation of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint, dated March 22, 1982. This proceeding commenced with the filing of an Administrative Complaint by Petitioner alleging that Respondent had acted as a broker in three separate real estate transactions in 1981 at a time when his real estate license had lapsed, and that he also had failed to place and maintain earnest money deposits in a trust account with reference to the same transactions. Respondent requested an administrative hearing under Section 120.57(1)(a), Florida Statutes, and the case was thereafter referred to the Division of Administrative Hearings for appointment of a Hearing Officer. Petitioner appeared at the hearing unaccompanied by legal counsel. He was thereupon advised by the Hearing Officer as to his right to counsel and as to his rights in an administrative proceeding under Chapter 120, Florida Statutes. Respondent indicated that he understood his rights and elected to represent himself. At the hearing, the parties submitted a Prehearing Stipulation of facts and exhibits. (Exhibit 1) In addition, the deposition of Respondent was received in evidence (Exhibit 2), and Respondent testified in his own behalf. Petitioner's Proposed Recommended Order has been fully considered and those portions not adopted herein are considered to be either unnecessary or irrelevant, or unwarranted in fact or law.
Findings Of Fact The following findings of fact are contained in the Prehearing Stipulation: The Respondent, WILLIAM McCOY, was a real estate broker licensed by the Florida Board of Real Estate prior to October 1, 1980. On or about October 1 1980, the Respondent's real estate license lapsed due to the fact that Respondent failed to apply for a renewal of such license. The Respondent did not renew such license until November 9, 1981. The Respondent acted as a real estate broker on behalf of Clinton and Elizabeth Johnson in their efforts to purchase the property located at 3015 East Fern, Tampa, Florida. Such efforts led to the Johnsons' purchasing the property of [sic] July 29, 1981. A true and correct copy of the contract for sale which was executed by the parties to the sale is attached hereto and identified as Exhibit A. The signature which appears to be the signature of the Respondent is, in fact, the Respondent's signature. The Respondent received payment of a commission for brokerage services on the sale of the East Fern Street property in the amount of One Thousand Dollars ($1,000.00) at closing on July 21, 1981. The Respondent acted as broker on behalf of George B. Wilds and Jetie B. Wilds in their efforts to purchase a residence located on West Palm Street in Hillsborough County, Florida. A true and correct copy of the contract for sale executed by the parties to the Palm Street transaction is attached hereto and identified as Exhibit B. The signature which appears to be the Respondent's signature is in fact the Respondent's. The Respondent received a commission for his efforts on behalf of Mr. and Mrs. Wilds in the above referenced real estate transaction at the closing which occurred on November 6, 1981. The Respondent received an earnest money deposit check on the Palm Street property from the Wilds, a true and correct copy of which is attached hereto and identified as Exhibit C. The copies of checks and checking account statements which are attached and identified as Exhibit D are true and correct copies of such records. The trust account from which the records which constitute Exhibit D were the Respondent's only trust account during the relevant period. The following additional facts are found from the evidence presented at the hearing: Respondent maintained both personal and escrow accounts at the Seminole Bank of Tampa. He admitted at the hearing that checks for personal purposes were drawn on his escrow account at various times, although the money expended was money belonging to him after the closing of real estate transactions. (Testimony of Respondent, Exhibits 1-2) In the Wilds transaction, Respondent received a $100.00 binder which he placed in his escrow account. (Testimony of Respondent) On September 28, 1981, Respondent executed an exclusive listing contract with Herbert H. Holley. However, he did not perform services under this agreement, or consider it binding because Holley did not obtain his wife's signature on the contract as had been requested by the Respondent. (Testimony of Respondent, Exhibit 2) Respondent maintained at the hearing that he was unaware of the fact that his broker's license had lapsed because he had been in the process of obtaining a divorce from his wife and that she had taken his credentials at the time they had separated. He had not received a notice from Petitioner to renew his license because his wife was living at home at the time and there was a lot of mail that he had never received prior to their separation. He was aware of the need for periodic renewal of his license, but had not been aware that it had lapsed in 1980. (Testimony of Respondent, Exhibit 2)
Recommendation That Petitioner impose an administrative fine of $250 on Respondent, William McCoy, pursuant to subsection 475.25(1)(a), Florida Statutes, for violation of subsection 475.42(1)(a), Florida Statutes. DONE and ENTERED this 14 day of September, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 14th day of September, 1982. COPIES FURNISHED: David P. Rankin, Esquire Freeman & Lopez, P.A. 4600 West Cypress (Suite 410) Tampa, Florida 33607 William McCoy 5725 North 40th Street Tampa, Florida 33610 Mr. C. B. Stafford Executive Director Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32801 Fred Wilsen, Esquire Department of Professional Regulation, Legal Services 400 W. Robinson Street P. O. Box 1900 Orlando, Florida 32801
The Issue Is Respondent guilty of fraud, misrepresentation, concealment, false promises, 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), F.S.? Is Respondent guilty of having failed to account or deliver to any person a deposit in violation of Section 475.25(1)(d), F.S.?
Findings Of Fact Petitioner is the 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 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and rules promulgated thereunder. Petitioner's Exhibit 5 establishes that Respondent was licensed as a real estate broker from 1978-March 31,1982, having been issued license number 0004238; that she applied for a change of address on July 30, 1985; and that she also was licensed effective April 1, 1986 in accordance with Chapter 475 F.S. Respondent's Answer, served September 4, 1987, states, in pertinent part, "Respondent admits she is a licensed real estate broker." The last license issued was as a broker t/a Mary L. Barrett, Real Estate, 235 S. County Road, Palm Beach, Florida, 33480. Pursuant to oral testimony of Manley P. Caldwell, Jr., an attorney, the following occurred: Respondent owned an apartment building consisting of nine residential units located at 301 Chilean Avenue, Palm Beach, Florida. A condominium conversion was completed February 19, 1983, but recorded thereafter. Respondent sold the property (all nine units) to the condominium corporation, "301 Chilean Corp."; and Respondent took as payment for her property the proceeds of a $300,000 Florida National Bank mortgage on the property. The deeds, sale papers, accountings, corporate papers, conversion documents, and $300,000 mortgage and note by the corporation to Florida National in support of Mr. Caldwell's testimony were not offered in evidence either through Mr. Caldwell, through a records custodian, or by submitting certified copies. Without some authenticated supportive documentation, Mr. Caldwell's testimony as to the nature and dates of this corporate real estate transaction is uncorroborated hearsay. To the degree there is any documentary corroboration, it appears to fix a far later date than that recited by Mr. Caldwell. 1/ Even so, neither Mr. Caldwell's testimony nor any admitted documentary evidence supports the premise that Respondent acted as other than a seller of her own real property in this transaction. There is no evidence she acted as a real estate agent or broker between independent parties. According to Mildred Chrzanowski, previously, on or about May 17, 1982, Respondent had made representations to her that if Mrs. Chrzanowski invested in the residential units, Respondent would form a corporation and convert the building into a condominium project, that Mrs. Chrzanowski would receive a position in the 301 Chilean Corp., that she would get a return of the $30,000 she invested at the "closing" to take place in October, 1982, that she would eventually get back double her investment, and that Respondent would pay back all the money herself if necessary. Five checks were made out by Mrs. Chrzanowski directly to the Respondent and not to any corporation. They also were tendered directly to the Respondent between May 17, 1982 and January 24, 1983. These five checks totalled $30,000 and were intended to purchase stock in the corporation. Some of these checks are endorsed in Respondent's name; some are endorsed for deposit only to the Respondent's name; some are endorsed for deposit only to the corporation. Mrs. Chrzanowski testified that she made out the first five checks to the Respondent because she thought the corporation was not yet formed as of January 24, 1983, the date of the fifth check. However, there is nothing to show these amounts were used for other than the incorporation and condominium conversion. A sixth check, dated January 18, 1984 for $1,360 constituted a loan by Mrs. Chrzanowski to the corporation. Mrs. Chrzanowski testified that she expected to become treasurer of the corporation and through her testimony Petitioner's Exhibit 2 was admitted in the absence of Respondent without objection. This is a copy of a federal corporate income tax return (dated September 20, 1983) for "301 Chilean Corp." and reflecting that the corporation was incorporated June 1, 1982, and "activated" May 11, 1983. It does not recognize Respondent as a stockholder. It names Mr. and Mrs. Chrzanowski, Joanne Barrett, and McKinley Cheshire as stockholders of a total of 83.33 shares of stock. It does not recognize Respondent or anyone else as a corporate officer. Indeed, the copy admitted in evidence is unsigned, and although Mrs. Chrzanowski testified that it was in her care, custody, and control, she apparently did not prepare it or know who had prepared it. The form reflects preparation by a firm of Certified Public Accountants. Mrs. Chrzanowski testified that she never got any accounting books for the corporation, never saw any of its checkbooks or purchases, and was never issued any stock, but that she did attend some unspecified meetings at Florida National Bank. Mrs. Chrzanowski eventually asked Respondent for return of her money. Although one is left with the impression Mrs. Chrzanowski got back $30,000 somehow, it is unclear from her testimony whether Mrs. Chrzanowski got back her $30,000 investment. She is, however, clear in her testimony that she did not recover the $1,360 corporate loan paid by her January 18, 1984 check made out to the corporation, delivered to Respondent, and endorsed for deposit only to the corporation. She is likewise clear that she did not double her $30,000 investment. She is most upset that her money did not double, that Respondent referred her to a lawyer to get the corporate books, and that eventually Respondent did not take her phone calls. Respondent had also promised Dr. McKinley Cheshire that he would serve as the corporate president of "301 Chilean Corp." He testified that he gave Respondent $15,000 plus other monies to support the project, and presumably to buy stock. No documentation of these payments was introduced in evidence, but Dr. Cheshire testified, contrary to the unsigned tax return, that he got no stock and no formal corporate meetings were held. Nonetheless, he also represented that at one meeting, May 10, 1983, at Florida National Bank, he discovered that he would have to sign a personal guarantee. Dr. Cheshire was not asked to identify his signature, but based upon copies of certain individual unit mortgage deeds and notes introduced in evidence through the testimony of Mr. Scatigno (P-7), it may be inferred that Dr. Cheshire signed several notes and mortgages as corporate President and signed a personal guarantee as to one note which was also personally guaranteed by Mr. and Mrs. Chrzanowski on August 22, 1983. Dr. Cheshire eventually recovered $7500 out of the corporation. Although Dr. Cheshire thinks he got his money when someone was trying to "take over" the corporation, there is no clear explanation of how he could have recovered $7500 without any stock transfer. Dr. Cheshire testified that it was orally agreed that Respondent was to act as the manager and sales agent for the condominium units. Mrs. Chrzanowski and Dr. Cheshire concur that in this capacity Respondent showed them that she had made some unit sales. There is no documentation in evidence to show upon what terms Respondent was to act as manager and sales agent or during what period of time. Dr. Cheshire's testimony is inconclusive to support either a finding that he made a request as an individual or as corporate President to Respondent as manager and sales agent for an accounting or for a refund of the money arising from these unit sales. Franco Scatigno is an Italian national. He first met Respondent through his brother and later sought her out as a real estate agent because he was interested in investing money in the United States. His perception is that after their first meeting, Respondent aggressively solicited his business and secured him as a purchaser for several of the individual units at 301 Chilean Avenue. On or about March 27, 1984, Respondent solicited Mr. Scatigno as a purchaser for unit 7, at a sales price of $75,000.00. Mr. Scatigno stated he paid $15,269.37 as a down payment to Respondent. This is the amount reflected in the body of the Agreement for Deed, apparently signed by McKinley Cheshire, President for seller, 301 Chilean Corp., as the down payment. The Agreement for Deed acknowledges this amount of down payment was received by the sellers for that unit. However, none of the copies of checks admitted in evidence (P-3 and P-4) is for that amount. Putting the best light on this discrepancy in Mr. Scatigno's testimony with regard to these figures, and recognizing that Mr. Scatigno sometimes referred to any dollar amount not given in "round thousands" as, "so many thousands and change," the figures still fall short of being wholly reconciled. The money distribution listed on the bottom of this Agreement for Deed for unit 7 totals $15,000. Two cashier's checks in the respective amounts of $8,574.15 for Charles Meyer and $6,425.85 for Mary Barrett (Respondent), totalling $15,000, were issued by Florida National Bank on Franco Scatigno's account on March 26, 1984. An attachment to this Agreement for Deed sets out that Mr. Meyer and Respondent had previously paid $15,000 to 301 Chilean Corp. for this unit. Without a closing statement or something more, it is impossible to conclude that more than $15,000 changed hands on this transaction and without something more, it is only by pure speculation that these amounts can be attributed to the unit 7 transaction. Again, it may be that Respondent was acting not as a real estate professional but as a private seller in this transaction. On or about the same date, Respondent solicited and obtained Mr. Scatigno as the purchaser at a sales price of $33,000 for unit 4 owned by William and Rheta Norman. Mr. Scatigno stated he entrusted a $5,126.77 down payment to Respondent, which is the amount reflected in the applicable Agreement for Deed, but no check exhibit corresponds to this amount either. On or about the same date, Respondent solicited and obtained Mr. Scatigno as the purchaser for unit 3, owned by Joanne Barrett (see supra.), at a sales price of $75,000.00. Mr. Scatigno stated he entrusted a $15,269.37 down payment to Respondent, but again no check exhibit corresponds to that precise amount. A cashier's check in the amount of $15,000 was drawn on Franco Scatigno's account for Joanne Barrett on March 26, 1984. For each of the foregoing three transactions, Mr. Scatigno received an executed Agreement for Deed for the unit involved. Each Agreement for Deed acknowledges receipt by the seller(s) of the respective amounts of down payment related orally by Mr. Scatigno. The Agreements for Deed also each specified, in pertinent part, that the purchaser (Scatigno) would pay to the respective unit's seller(s) a monthly installment equal to the respective seller's/sellers' monthly mortgage debt to the mortgagee, and that the respective seller(s) would, in turn, be responsible for timely paying mortgage payments to the mortgagee. The pay out dates for each transaction/mortgage was specified, the earliest being August 22, 1988. The Agreements for Deed are silent as to who (purchaser or seller) was responsible for recording them or if they were to be recorded at all. No evidence was offered as to the law or responsibility by trade, custom, or professional standard as to whether Respondent, as a real estate professional, was responsible for recording them. Mr. Scatigno testified that he entered into an oral agreement with Respondent to manage these three units plus one other. There is no documentation to show what the terms of this agreement may have been or what its duration was intended to be. With regard to the fourth unit, approximately March 27, 1984, Franco Scatigno agreed to purchase unit 5 from 301 Chilean Corp. A contract for sale (P-4) was drawn up for $90,000 with $15,267.62 as principal and $74,732.38 in mortgage, $2,000 deposit to the corporation, and no broker's commission. Pursuant to this exhibit, on September 1, 1984, the corporation was to be required to deliver an Agreement for Deed to Mr. Scatigno and Mr. Scatigno was to be required to deliver a note due to the corporation. Mr. Scatigno testified contrariwise that he expected to get the Agreement for Deed from Respondent in November 1984. Regardless of what Mr. Scatigno thought was agreed to or what the terms of the contract for sale (P-4) actually provided, it appears to be merely an "offer" by Scatigno without an "acceptance" on the signature line for the seller, 301 Chilean Corp. Mr. Scatigno was of the opinion that he never received the Agreement for Deed for this unit. However, he claims to have paid out money and relied on Respondent to rent the unit, and thereafter, the foreclosure papers on the unit name him as holding an Agreement for Deed thereon. The Administrative Complaint alleges that Mr. Scatigno was misled by Respondent to believe he was getting four Warranty Deeds instead of four Agreements for Deed. The evidence does not support this allegation. The three Agreements for Deed offered and admitted in evidence at formal hearing were signed by Mr. Scatigno and they set out that Warranty Deeds would be transferred to him by the sellers, provided all payments by all parties were fully paid, and at such time as these amounts had been fully paid, pursuant to the respective Agreements, each of which was scheduled to pay out in 1988. Although Mr. Scatigno thinks he never got an Agreement for Deed for unit 5, the bank which eventually foreclosed that unit in 1986 against 301 Chilean Corp. and Mr. Scatigno alleged in the foreclosure pleadings that Mr. Scatigno held an interest in the unit by Agreement for Deed. Respondent is not charged in this instant disciplinary action with failure to deliver a fourth Agreement for Deed. Clearly, Mr. Scatigno, as a foreign national, is not familiar with the legal differences among, and qualities of, Contracts for Sale, recorded and unrecorded Agreements for Deed, and Warranty Deeds. However, the only representations about the legal effect of his Agreements for Deed that Mr. Scatigno related at formal hearing were those made by an unidentified "lawyer" he apparently consulted at the closing. 2/ Mr. Scatigno at one point testified that he was personally required to make the mortgage payments on the four units and at another point testified that Respondent told him to make out blank cashier's checks for the appropriate amounts and thereafter Respondent made out these checks on his behalf to pay the respective unit mortgages. He also testified that Respondent was supposed to have the mortgage or mortgages at the bank switched to his name, but from his testimony it is not possible to be sure whether this latter information was a representation by Respondent directly contrary to the provisions in the Agreements for Deed which Mr. Scatigno is presumed in law to have agreed to when he signed them or whether it was Mr. Scatigno's unilateral perception of what should be done, which perception is not attributable to any representation by the Respondent. Mr. Scatigno stated that Respondent induced him to buy all four units by telling him that once rented, he would realize an investment income of $1200 per month, per unit. Mr. Scatigno maintains that, pursuant to their oral agreement, Respondent was to manage and rent his units. Mr. Scatigno did not suggest that Respondent failed to transmit his payments to the mortgagee bank for so long as he paid through her. Rather, he produced cancelled checks to show that these payments were made until he chose to quit paying them, but he complained that Respondent failed to rent his units as promised. According to Mr. Scatigno, Respondent only rented one of his units on one occasion for two weeks at $400-500 per week, and another unit was rented for a short, unspecified period for $300 per week. Mr. Scatigno never saw any of this money, nor is it clear which units were rented or when. When Respondent did not rent all his units on a regular basis, Mr. Scatigno repeatedly urged her to do so. Thereafter, over a period from late 1984 through April of 1985, he urged her to either rent his units, resell his units, or let him out of his deal. She urged him to continue to pay management costs and the mortgage through her, but eventually, she did not answer either his letters or his phone messages left on her answering machine. Although the time frames testified to by Mr. Scatigno are imprecise, apparently Respondent ceased to communicate with him before he decided to stop paying the mortgage and upkeep on the property. However, Mr. Scatigno elected to stop paying the mortgages because he felt Respondent was not managing his property and also because he "could not continue to pay out $3,000 and change each month with nothing-coming in." The bank then foreclosed upon both Mr. Scatigno and the mortgagors/sellers of the respective units. He thinks he walked away from the foreclosure action without further debt because his Agreements for Deed were never recorded. It was not demonstrated that Respondent retained the rental money that is claimed by Mr. Scatigno. It may be as easily speculated that the Respondent applied it to the management of Mr. Scatigno's units or toward these units' respective mortgages as it may be speculated that she kept it. Foreclosure on all Mr. Scatigno's units and at least one other unit seems to have been completed in January 1986. Respondent is not charged with operating as a real estate professional without a license from March 31,1982 to April 1, 1986. A thorough search of the documentary exhibits reveals no further reconciliation of the discrepancies in the witnesses' testimony, and does not further clarify the ambiguities previously set forth.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a Final Order dismissing all charges against the Respondent. DONE and RECOMMENDED this 19th day of October, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 19th day of October, 1988.
