Findings Of Fact The Respondent, Albert E. Pastorini, is a registered real estate salesman and works out of the office of Elanor Hollis, a registered real estate broker trading under the name of Hollis Real Estate. Under the stationary of Hollis Real Estate, the Respondent Pastorini offered eleven separate parcels of realty to Palm Beach County as offerings under their $50 million parks and recreation land acquisition program. One of those parcels was designated, for purposes of this hearing, as the Schine property. Schine Enterprises, Inc. is a landowner in Palm Beach County with ocean front properties. Mr. Howard P. Miller is an employee of Schine Enterprises and is also a registered real estate broker. Mr. Miller testified that he has had contact with the Respondent, Pastorini, for quite some time and has on repeated occasions told him that the Schine property was not available for sale and that no listings were available. Mr. Miller testified he learned early in 1975 that the 27 acre Schine property had been offered to the county for consideration under the bond program. Miller testified that he learned this property had been offered by Pastorini but that he had never given Mr. Pastorini authorization to do so. Miller also testified that some time in April, 1975, Ms. Hollis and Mr. Pastorini came to his office at his request and he informed Mr. Pastorini in no uncertain terms that he had no authorization to list the property. Mr. Pastorini, according to Mr. Miller, stated that Mr. Miller had given him a verbal listing which Miller denied. When the county began reviewing the offerings of property, they became aware that some of these offerings had not been authorized by the owners and so they therefore by letter, requested all brokers and salesmen that had submitted offerings to demonstrate proper authorization from the owners or else the county would purge these offerings from their list of available properties. Of the eleven offerings that Pastorini submitted to the county, he was able only to produce two authorizations; one for thirty days and the other for an open listing. No evidence was presented regarding any activities on behalf of Elanor Hollis, the other Respondent.
The Issue Whether either Respondent violated the provisions of chapter 475, Florida Statutes,1/ regulating real estate sales associates, as alleged in the administrative complaints, and if so, what sanctions are appropriate.
Findings Of Fact The Florida Real Estate Commission, created within the Department, is the entity charged with regulating real estate brokers, schools, and sales associates in the State of Florida. The Division of Real Estate is charged with providing all services to the commission under chapters 475 and 455, Florida Statutes, including recordkeeping services, examination services, investigative services, and legal services. In 2006, Ms. Linda Fiorello and Ms. Catherine Lichtman, associates at another brokerage, decided to open up their own real estate business, with each owning a fifty-percent share. They created Luxury Realty Partners, Inc. (“the corporation”), a licensed real estate corporation in the State of Florida. While Ms. Lichtman was initially the qualifying broker, she soon stepped down from that position and a series of other individuals served as brokers for the corporation. Neither Ms. Fiorello nor Ms. Lichtman was licensed as a real estate broker at any time relevant to the Administrative Complaints. The corporation sold, exchanged, or leased real property other than property which it owned and it was not an owner-developer. On April 23, 2010, Mr. Brian Davis was added as the sole officer and director of the corporation, and he became the qualifying broker. At all times material to the complaints, Ms. Fiorello and Ms. Lichtman were licensed as real estate sales associates in the State of Florida, Ms. Fiorello having been issued license number 659087 and Ms. Lichtman having been issued license number 3170761. They worked together at the corporation, nominally under the direction, control, and management of Mr. Davis. The corporation did not maintain an escrow account. Mr. Davis did not manage any of the corporation’s bank accounts. He was not a signatory on the operating account. He did not collect brokerage commissions or distribute them to sales associates. He testified he went into the office “maybe once, once or twice a month.” When he agreed to become the qualifying broker for the corporation, he did not even know all of the names of the agents he was supposed to be responsible for. Mr. Davis stated: Well, basically, I was just doing a favor and I was – I put my license there until one of the other two could get their Broker’s license. I was just really stepping in for a short term to – to fill the time frame until one of them could get their Brokerage license, and I didn’t go on any management or any other books or anything of that nature. As Ms. Patty Ashford, one of the sales associates testified, Mr. Davis was seldom in the office. Ms. Ashford would turn in her contracts to Ms. Fiorello or Ms. Lichtman, who would review them. Ms. Ashford testified that her commission checks were then paid by checks signed by Ms. Lichtman. In short, Mr. Davis effectively provided no direction, control, or management of the activities of the corporation or its sales associates. In December of 2009, Ms. Jennie Pollio was living at 10861 Royal Palm Boulevard in Coral Springs, Florida (the property), a Section 8 property that she had been renting from Mr. Jimmy Laventure for about nine years. The property was in foreclosure. Ms. Pollio thought that she might be able to buy the property. She consulted Ms. Victoria Guante, a real estate sales associate with Luxury Realty Partners, Inc. Ms. Pollio knew Ms. Guante because they both had sons who played baseball on the same team. Ms. Guante told Ms. Pollio to get $40,000.00 in cashier’s checks and put it in escrow with Luxury Realty Partners, Inc., so that she could make a strong offer and show that she really had the money. Although they were not produced as exhibits at hearing, Ms. Pollio testified that she signed a couple of different contracts for the property in early 2010. On or about April 29, 2010, Ms. Guante accompanied Ms. Pollio to the bank to get cashier’s checks. Ms. Pollio received five Bank of America cashier’s checks made out to “Luxury Partner Realty,” four in the amount of $9000.00, and one in the amount of $4000.00. Ms. Pollio understood that the property could be purchased for a total of $40,000.00, which included $37,000.00 for the property, and the balance in closing costs. The cashier’s checks were not given to a broker. Ms. Pollio gave the $40,000.00 to Ms. Fiorello as a deposit on the property when she met with her in the corporation office on State Road 7. Ms. Pollio made a copy of the cashier’s checks and Ms. Fiorello wrote a note on the bottom of the copy, “Received by Linda A. Fiorello for Luxury Escrow deposit on contract 10861 Royal Palm Blvd Coral Springs FL 33065” and gave it back to Ms. Pollio.2/ Although the payee name on the cashier’s checks was transposed, Ms. Pollio gave the checks to Ms. Fiorello as agent of the corporation as a deposit on the property, and Ms. Fiorello accepted the checks on behalf of the corporation for the same purpose. Ms. Fiorello did not advise Mr. Davis that the checks had been received. Instead, she deposited the checks in an account formerly belonging to Luxury Property Management, an entity unaffiliated with Luxury Realty Partners, Inc.3/ Luxury Property Management had never been a licensed real estate brokerage corporation, and was no longer in existence, as it had been dissolved. The account had never been properly closed. The account usually had a low balance. Just prior to the deposit of Ms. Pollio’s money, the balance was $10,415.15. Ms. Lichtman had no ownership or interest in Luxury Property Management, but she was aware of the account. The corporation did not have an escrow account, and the Luxury Property Management account was sometimes used to hold money “in escrow,” as Ms. Lichtman was aware. As he testified, Mr. Davis knew nothing about this account and did not authorize Ms. Fiorello to place Ms. Pollio’s deposit there. Ms. Fiorello’s contrary testimony that she told Mr. Davis of the transaction and had his authorization was not credible and is rejected. Ms. Guante was negotiating for the property on Ms. Pollio’s behalf. She testified: At that point the guy was asking (unintelligible) I think was sixty-five, and then we made the offer for $40,000.00. The guy came back and say “no,” and then we went back and make another offer for $50,000.00, and then by that time the guy still say “no.” And then her and I get into an argue because baseball game that don’t have nothing to do with the real estate and then she decided she don’t want me no more as her agent. Ms. Guante called Ms. Fiorello and told her that Ms. Pollio didn’t want to work with Ms. Guante anymore. Ms. Fiorello told Ms. Guante not to worry about it, that the corporation would handle the transaction for Ms. Pollio. On September 23, 2010, a check in the amount of $40,000.00 was written from the Luxury Property Management, LLC, account to Luxury Realty Partners. It is undisputed that the hand writing on the “amount” and “pay to the order of” lines on the check was that of Ms. Lichtman, while the signature on the check was that of Ms. Fiorello. This check, posted into the corporation’s operating account the same day, along with a check for $6000.00, left a balance of only $684.15 in the Luxury Property Management, LLC, account. The two sales associates gave completely different explanations for the check. Ms. Fiorello testified that she always left one or two signed checks locked in the office when she was out of town. She testified that only she and Ms. Lichtman had keys to the lock. Ms. Fiorello testified that without her knowledge, Ms. Lichtman had removed a signed check and filled in the top portion. She testified that although it was her account, she did not realize that the money had been removed until around May 2011, some eight months later.4/ On the other hand, Ms. Lichtman testified that on numerous occasions, the two associates would write out checks together, and that in this instance they discussed the transfer in connection with the opening of a Rapid Realty real estate office in New York which involved Ms. Fiorello’s son. Ms. Lichtman testified that she filled out the top portions of the check, and Ms. Fiorello then signed it. Ms. Lichtman testified that the $40,000.00 “represented monies coming back into Luxury Realty Partners from Rapid Realty.” Ms. Lichtman did not explain why funds from Rapid Realty to repay a loan from Luxury Realty Partners would have been deposited into the Luxury Property Management account, and records for the Luxury Property Management account do not reflect such deposits. On November 4, 2010, a little over a month later, Ms. Lichtman transferred $40,000.00 from the corporation operating account into an account for Chatty Cathy Enterprises, an account controlled by her, and inaccessible to Ms. Fiorello. Ms. Lichtman’s explanation for these transfers, that the $40,000.00 came from the New York real estate venture in repayment of a loan made from the corporation, was unpersuasive, and is rejected. First, the only documentary evidence of a loan made to the “start-up” was an unsigned half-page note dated April 30, 2010. That document indicated that an interest-free business loan in the amount of 25,000 would be made from the corporation to “Rapid Realty RVC and its owners” and that re- payment of the loan would be made in monthly payments to the corporation. No amount was specified for these payments. Similarly, there was no evidence of any repayment checks from Rapid Realty to Ms. Fiorello, Ms. Lichtman, or the corporation. A document dated November 5, 2010, purports to be a “formal release” of that loan. It states in part: The above stated note lists a dollar amount of $25,000 dollars which is inaccurate. The total balance of the loan was approximately $48,000 dollars that was loaned by Luxury Partners Realty (sic), Catherine A. Lichtman and Linda A. Fiorello. This is the formal dollar amount of the loan that is considered paid and satisfied in full. This release appears to be signed by Ms. Lichtman and Ms. Fiorello. Even assuming that the loan had been repaid in full by the New York venture (although no corporation account deposits indicate this), it is not credible that Ms. Lichtman believed she was personally entitled to a payment of $40,000.00 for repayment of a $48,000.00 loan made by the corporation. The spreadsheet of itemized expenses of the New York office and offered by Ms. Lichtman as proof of amounts loaned has no apparent correlation to a spreadsheet prepared by Ms. Lichtman purporting to show checks and cash amounts transferred to New York.5/ In January 2011, Ms. Teresa Ebech, the listing agent for the property with First United Realty, took another contract for the Royal Palm property to Ms. Pollio. This contract referenced a $40,000.00 deposit and listed “Luxury Property Mgt. Escrow” as the escrow. This contract indicated a total purchase price of $55,000.00, and called for a February 21, 2011, closing date. Ms. Pollio signed the contact. The closing did not occur. Ms. Pollio decided to stop trying to buy the property and get her money back. No other party ever acquired an interest or equity in the deposit. Ms. Pollio had difficulty getting in touch with Ms. Fiorello about getting her money back. When Ms. Pollio finally was able to ask Ms. Fiorello for a return of her deposit, Ms. Fiorello did not return it, but told Ms. Pollio that she should get it from Ms. Lichtman. On or about April 28, 2011, Ms. Pollio, with help from her friend, Ms. Joyce Watson, prepared a letter to cancel the contract. The letter noted that the $40,000.00 had been in escrow for over a year and stated that due to the inability of Luxury Realty Partners to close on the property, Ms. Pollio requested immediate return of the deposit. The letter was sent to Catherine Lichtman at the Luxury Realty Partners, Inc., address. Ms. Lichtman’s testimony that she never received the letter is discredited. Ms. Ashford, another real estate sales associate at the corporation, had never met Ms. Pollio, but was in the Luxury Realty Partners, Inc., office one day in May of 2011 when Ms. Pollio came in with her husband. Ms. Ashford testified: She came in with her husband pretty much screaming and yelling from the minute she stepped foot in the door. She was very angry, very upset. I looked at her and said, you know, Ma’am please calm down. She said I’m not calming down. She pointed at Cathy, she said she knows exactly why I’m f’in here. This has nothing to do with you. Ms. Lichtman asked Ms. Ashford to call her husband, which Ms. Ashford did, thinking this was unusual because he never had anything to do with what went on at the office. Ms. Pollio yelled at Ms. Lichtman, and Ms. Lichtman yelled back, each becoming more and more agitated. Ms. Lichtman then left the room and locked the door. The police were called, though Ms. Ashford was not sure if it was Ms. Pollio or her husband, or perhaps Ms. Lichtman’s husband, who called them. Ms. Ashford testified that when the police officer arrived, Ms. Lichtman lied and told him that her name was Victoria. The officer tried to calm both parties, and told them it was a civil matter. The police officer finally persuaded Ms. Pollio and her husband to leave. Ms. Ashford testified as follows about the conversation that took place between Ms. Lichtman and Ms. Ashford after Ms. Pollio left: Q What did you say? A I asked her point blank what the hell was going on and she responded. Q What did she respond? A That yes, she had her money. The money was-– Q When you said her money. What-–what are talking about? A She had Jennie’s money. Q She-- A It was a deal, a transaction. “She came into our office with cash coming out of her boobs and I don’t have to give it back.” Were her words. Q Did you tell Cathy that she had to return the money? A Yes, I did. I said “Cathy, its escrow money, it doesn’t matter where she got it from,” and Cathy went on about “it’s illegal she’s a dancer, she’s on Section 8. I’m going to report it to the IRS. She thinks she buying a f’in house.” Ms. Lichtman’s admission to Ms. Ashford after Ms. Pollio left showed that Ms. Lichtman knew that she had money in her possession that had been given by Ms. Pollio to buy a house. Ms. Ashford testified that she was upset, as an agent with the corporation, about what appeared to be going on. She and Ms. Fiorello met with Mr. Davis in April of 2011. Ms. Fiorello told Mr. Davis that Ms. Lichtman had stolen funds. Mr. Davis reviewed the January contract that Ms. Fiorello gave him, and concluded that it didn’t make much sense. He had not given any authorization to place escrow funds into the Luxury Property Management, LLC, account. He did not have access to that account or to any of the corporation’s operating accounts to determine if money was missing. After the meeting, Mr. Davis asked Ms. Lichtman what she knew about the accusation. Ms. Lichtman denied that she took any money from an escrow account. Mr. Davis called the Florida Real Estate Commission and reported the incident. At some point, Ms. Lichtman advised Ms. Pollio that the cancellation letter was not sufficient, and provided Ms. Pollio with a “Release and Cancellation of Contract for Sale and Purchase” form. Mr. Laventura signed the form in June 2011, and Ms. Pollio signed the form when she returned it to Ms. Lichtman at the Luxury Realty Partners, Inc., office. The form released Luxury Partner Realty from liability and indicated that the escrow agent should disburse all of the $40,000.00 deposit to Ms. Pollio. At the time of the final hearing, Ms. Pollio had yet to receive her $40,000.00 deposit back. The testimony and documentary evidence in this case clearly demonstrates a recurring and systematic disregard of the legal entities and procedures intended to provide structure and accountability to business and real estate transactions by both Ms. Fiorello and Ms. Lichtman. Ms. Fiorello and Ms. Lichtman employed a qualifying “broker” for the corporation, but intentionally assumed the responsibilities of that position themselves during the time relevant to the Administrative Complaints. In doing so, they each operated as a broker without being the holder of a valid and current active brokers’ license. No evidence was introduced at hearing to indicate that the professional license of either Ms. Fiorello or Ms. Lichtman has ever been previously subjected to discipline.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that final orders be entered by the Florida Real Estate Commission: Finding Linda Fiorello in violation of sections 475.25(1)(k), 475.25(1)(d), 475.42(1)(d), 475.42(1)(a), 475.25(1)(b), and 475.25(1)(a), Florida Statutes, as charged in the Amended Administrative Complaint, and imposing an administrative fine of $10,000.00, reasonable costs, and revocation of her license to practice real estate; and Finding Catherine A. Lichtman in violation of section 475.25(1)(d), Florida Statutes, as charged in the Administrative Complaint, and imposing an administrative fine of $1000.00, reasonable costs, and revocation of her license to practice real estate. DONE AND ENTERED this 11th day of June, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2015.
The Issue The issue is whether Respondents' real estate licenses should be disciplined on the ground that Respondents violated a rule and various provisions within Chapter 475, Florida Statutes, as alleged in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondents, Tracy Anne Hardman and Ruby Joyce Litton, were licensed as a real estate salesperson and broker, respectively, having been issued license numbers 0458811 and 0424762 by Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). Litton served as the qualifying broker/owner of Respondent, Carrabelle Realty, Inc., a corporation registered as a real estate broker and located at 104 West Highway 98, Carrabelle, Florida. The corporation holds license number 1008111, also issued by the Division. On December 14, 1995, Thomas E. Gavers, who resides in East Troy, Wisconsin, executed a contract offering to purchase a vacant lot on U. S. Highway 98 in Franklin County, Florida, from John M. Brannen for the price of $22,000.00. After a counteroffer was made by Brannen raising the price to $25,000.00, the contract was accepted by Gavers on January 6, 1996. It can be inferred from the evidence that Gavers was an experienced investor since he also owned "quite a bit of other property" in the county. The contract called for Gavers to pay $500.00 as an earnest money deposit, to be held in escrow by Respondents. The contract further provided that the transaction "shall be closed on or before Feb. 15, 1996, unless extended by adding an addendum to the contract." A special condition added by Gavers provided that the "contract [is] contingent on [the] lot being buildable and [the buyer] obtaining [a] permit to fill [the] lot and build [a] driveway." Finally, paragraph 17 of the contract provided in part that if the buyer "fails to perform any covenants of this contract within the time specified, all deposits shall be forfeited." Hardman was the seller's agent in the transaction. At some point in the process, but probably when the contract was signed, Gavers sent Hardman a note which asked her to "[c]heck to see if lot is buildable & permit is okayed to fill lot & build driveway before spending monies to [sic] survey & title ins." Although paragraph 16 of the contract clearly provided that this responsibility fell upon the buyer, Hardman undertook the process of assisting Gavers since he was then residing in Wisconsin, and her only means of communicating with him was by telephone or mail. In doing so, Hardman made clear that she would assist the buyer as much as possible, but it was the buyer's responsibility to actually secure the permits. Because of time constraints in attempting to secure the information necessary to satisfy the special condition, it was necessary for Gavers to extend the closing date to March 15, 1996. This was accomplished by an addendum to the contract executed by the parties around February 14, 1996. After expending a considerable amount of time and effort in assisting Gavers, Hardman eventually obtained most of the information pertaining to requirements for filling and building on the lot. She learned, however, that a permit would be required from the U. S. Army Corps of Engineers in order to fill the lot. Before that federal agency would even inspect the lot to see if it was permittable, it was necessary that the lot be surveyed. Based on the foregoing advice, Hardman ordered a survey for a cost of $150.00. The survey was performed on or about February 7, 1996. Although Respondents paid for the survey when it was performed, they were ultimately reimbursed for this expense from Gavers' deposit. Hardman did not advise Gavers in writing that a survey was being ordered; however, Litton believed that Gavers was notified of such action by telephone, and this assertion has been accepted. This testimony is especially credible since Gavers had just authorized Hardman to spend $85.00 to file a septic tank permit application with the County. In addition, notwithstanding the instructions in his note that Hardman was not to spend any money until a permit was actually obtained, Gavers subsequently told Hardman to "proceed" and "keep going" in her efforts to help him obtain a permit. Therefore, Hardman was not culpably negligent in ordering the survey, and she did not breach her trust in the transaction by doing so. After the property was inspected by the federal agency, Hardman learned that it would be necessary for Gavers to personally fill out a portion of the application for a permit showing the type of filling and construction he desired and to return it with a filing fee to the agency's Jacksonville office. Gavers obtained the necessary documentation for Gavers to complete, and she filled in a portion of the form. The packet was then mailed to Gavers on a date not of record, but probably before March 15, 1996, with instructions that he needed to complete the application in order to obtain a permit. Gavers claims that he "wasn't aware of" receiving it, but his testimony is not found to be credible. He declined to complete the application, which would have satisfied his contingency request and allowed the contract to close. From that point on, he also stopped communicating with Respondents. The time for closing the contract expired on March 15, 1996. Although Gavers had probably breached the contract by that date by failing to make any reasonable effort to satisfy the contingency, as required by paragraph 16 of the contract, he telephoned Hardman on an undisclosed date and asked that she obtain another extension of time. The seller agreed to a second extension, and a second addendum to the contract was eventually prepared and executed by the seller on April 29, 1996, which extended the closing date to May 31, 1996. The addendum was then faxed to Gavers for his signature. Although Gavers acknowledged receiving the document, he says he did not receive it "until it was about ran [sic] out," he did not want to make a decision on purchasing the property "that quick," and in any event, it was the realtors' responsibility, and not his, to obtain the permits. He declined to respond in any fashion to Respondents. During this same time period, Litton and Hardman repeatedly attempted to contact Gavers by telephone and mail, and in March, April, and May they left "numerous" telephone messages with Gavers' daughter at his Wisconsin home. Although Gavers says he returned every telephone call, his testimony is not deemed to be credible, and it is found that he failed to return any calls. He also claimed that he visited Florida sometime that spring and spoke to Hardman, and that she was pressuring him into making a decision. However, Respondents established that Gavers never returned to Florida to speak with them after the process began, and their testimony has been accepted on this issue. By this time, the seller's property had been tied up for many months, and Brannen had another buyer ready to purchase the property for $10,000.00 more than Gavers had offered. After hearing nothing from Gavers for months, despite continued efforts to contact him, in August 1996 Litton mailed Gavers a Release From Sales Contract, which provided that Gavers would "be released from Contract For Sale, dated 12-14-95," and that he understood that he would "forfeit any earnest money deposit [he] had given." Gavers acknowledged receiving this document, but like the other messages and packets of documents, he declined to respond in any fashion. According to Gavers, he had been "patiently" waiting for a return of his deposit, and that after receiving the release, he immediately filed a complaint with the Real Estate Commission (Commission) seeking a return of his money. However, it was established that his complaint was not filed until almost two years later. In addition, the evidence shows that Gavers never once requested that Respondents return his money or even hinted to them that he thought he was entitled to a refund. Gavers insisted that he "cooperated" with Respondents and "did everything [he] could" to assist Hardman in securing the information necessary to satisfy the contingency in the contract. This assertion has been rejected as not being credible. To the contrary, Gavers refused to even communicate with Respondents, and he failed to take even minimal action to satisfy his responsibility under the contract. On the reasonable belief that Gavers was not making a claim on his deposit, and that he had failed to fulfill his obligation under the contract, on September 13, 1998, Litton issued checks in the amount of $172.73 to Hardman and herself from Gavers' deposit. A part of that was used to reimburse Respondents for the expenses incurred in having a survey performed. The remaining part of the deposit, $172.74, was issued to the seller on October 21, 1996. In making this disbursement, there was no intent on the part of Litton and Carrabelle Realty, Inc. to trick or deceive the buyer, breach their trust in the transaction, or otherwise commit an unlawful act. Gavers never made a demand for his deposit at any point in the process, and he had failed to make a reasonable effort to satisfy the contingency. Under these circumstances, there was no reasonable doubt in Litton's mind, nor should she have had one, as to who was entitled to the $500.00 deposit, and she was not confronted with conflicting demands for the money. Therefore, she was under no obligation to send Gavers a letter by certified mail requesting that he respond within a date certain or that his deposit would be forfeited. Likewise, there was no responsibility on Litton to request a disbursement order from the Commission. After Gavers defaulted on the contract, Brannen sold his lot to another buyer. The new owner satisfied all requirements necessary to build on the lot, and he thereafter built a driveway on the lot and constructed a new dwelling. It is clear, then, that the lot was "buildable," and a permit could be obtained "to fill [the] lot and build [a] driveway," which would have satisfied the contingencies in Gavers' contract. Respondents have never been the subject of prior disciplinary action. In addition, Hardman and Litton are associated with a small real estate firm in a small community, and the imposition of an administrative fine would create a financial hardship. Finally, throughout this process, Respondents acted in good faith; they cooperated with the Division; and they expended considerable time and effort in attempting to assist a buyer who refused to return calls, acknowledge mail, or fill out the necessary documentation that was required to obtain a permit.
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, with prejudice. DONE AND ENTERED this 31st day of December, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1998. COPIES FURNISHED: James Kimbler, Acting Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Ghunise Coaxum, Esquire 400 West Robinson Street Suite N-308 Orlando, Florida 32801-1772 Tracy Ann Hardman 865 CC Land Road Eastpoint, Florida 32328 Ruby J. Litton Post Office Box 490 Carrabelle, Florida 32322 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Kenneth W. Schneegold is a licensed real estate broker holding license no. 0078270 issued by the Department of Professional Regulations in the Division of Real Estate. The Respondent was president of Atlantis Properties, Inc., Florida Corporation. Atlantis Properties, Inc., and the Respondent were developers of a condominium to be built and known as Presidential Estates located in St. Petersburg, Florida. On or about January 10, 1981, Daniel K. Cullinan and J. Kent Staley entered into a written Reservation Agreement with Atlantis Properties, Inc., and the Respondent, as president, to reserve a unit within Presidential Estates. Pursuant to the Reservation Agreement a deposit of $1,000.00 was paid to ERA Kent Warren Realty in the form of a check received by the Respondent. The Reservation Agreement specified that the $1,000.00 deposit was to be held in the ERA Kent Warren Realty escrow account. The $1,000.00 deposit was paid in the form of a check signed by Daniel K. Cullinan on January 10, 1981. The deposit was placed into the escrow account of ERA Kent Warren Realty in the Pinellas Bank in St. Petersburg, Florida, on or about January 12, 1981. ERA Kent Warren Realty is the name under which the Respondent trades and the ERA Kent Warren Realty escrow account is the escrow account of the Respondent. This escrow account was maintained by the Respondent in his capacity as real estate broker. Pursuant to the terms of the Reservation Agreement, the $1,000.00 deposit was to be returned to the prospective buyer if one of the following occurred: In the event that the Agreement was terminated, the buyer would be entitled to an immediate and unqualified refund of reservation deposit. Said agreement could be terminated by the buyer upon written request at any time prior to the execution by the parties of a Purchase Agreement. The written notice was to be delivered by certified mail. The Agreement was also to terminate and the deposit would be returned if, by the first anniversary date of the Reservation Agreement, the purchase agreement had not been entered into by the parties. More than one year after the signing of the Reservation Agreement a purchase agreement had not been entered into by the parties. Cullinan made verbal demands upon the Respondent for return of his $1,000.00 deposit on several occasions. The Respondent did not account or deliver the $1,000.00 deposit to Cullinan. Cullinan sent a certified letter to the Respondent terminating the Reservation Agreement and requesting return of the $1,000.00 deposit. This written request was made on or about January 22, 1983. The certified letter was returned to Cullinan as unclaimed by the Respondent. The Respondent acknowledged that he was aware of Cullinan's request for the return of the $1,000.00 and also aware of his written request for the return of the $1,000.00 deposit. The Respondent communicated with Staley who did not demand termination of the agreement and return of the money from the Respondent. During the time from January 25, 1982, through February 28, 1983, prior to the return of the $1,000.00 deposit to Cullinan, the ERA Kent Warren Realty escrow account fell to a balance below $1,000.00 on no less that 16 occasions. The Respondent admits that his escrow account did fall below $1,000.00 on several occasions during the above mentioned time period. Cullinan nor Staley never gave their consent to the removal or use of the $1,000.00 deposit for any purpose other than those specified in the agreement. After complaint was lodged with the Division of Real Estate, the Respondent under compulsion from the Real Estate Commission paid the $1,000.00 deposit to Cullinan.
Recommendation Having found the Respondent guilty of violation Section 475.25 (1)(k), Florida Statutes, by failing to maintain monies in his escrow account properly it is recommended that the Respondent's license as real estate broker be suspended for a period of three months and that he be fined a sum of $1,000.00. DONE AND ORDERED this 27th day of November, 1984, at 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 27th day of November, 1984. COPIES FURNISHED: James R. Mitchell, Attorney for Petitioner DPR-Division of Real Estate 400 W. Robinson St. P.O. Box 1900 Orlando, Florida 32802 Mr. Kenneth W. Schneegold 11360 Fourth Street, East Treasure Island, Florida 33706 Mr. Harold Huff Director, Division of Real Estate Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801
The Issue Whether disciplinary action should be taken against the Respondents for alleged violation of Subsections 475.25(1)(a) (1977), 475.25(1)(b) (1979), 475.25(1)(c) (1977), and 475.25(1)(d) (1979), Florida Statutes, as set forth in the Administrative Complaint, dated May 1, 1980. At the commencement of the hearing, Counsel for Respondent Marie Bonello announced that his client, who was present, was ill and 78 years of age and unable to testify, and moved to continue the hearing. The continuance was denied, but the parties agreed to allow her Counsel to file a deposition subsequent to the hearing and to hold the case open until her deposition could be filed. By letter dated August 13, 1980 Counsel for Marie Bonello stated that he anticipated a restitution settlement with complaining witness Marlene Jacobs and requested further delay in closing the case. Counsel for Respondent Gloria Campione agreed to the delay by letter dated September 25, 1980. On October 8, 1980 Counsel for Petitioner requested that a recommended order be entered, and on October 31, 1980 notified the Hearing Officer that a transcript would be ordered and a proposed recommended order would be filed by Petitioner. A transcript was filed December 8, 1980. No deposition, proposed orders, or memorandum showing restitution were filed by the parties subsequent to the hearing except Counsel for Respondent Campione filed a legal memorandum and a proposed recommended order, which were considered in the rendition of this order.
Findings Of Fact Respondent Marie Bonello was registered with Petitioner as a real estate salesperson and also as President and Treasurer of Bonne Realty Corporation and was so registered during the time pertinent to this hearing in the year 1978 (Petitioner's Exhibit 23). Respondent Bonne Realty Corporation was licensed under Corporate Certificate No. 0196358-6 by the Florida Real Estate Commission to transact real estate business and was so registered during the time pertinent to this hearing. Respondent Gloria Campione is registered as a real estate salesperson and was so registered In 1978 and at all times material to this case was either employed by or was working with Respondent Bonello and the Respondent Bonne Realty Corporation. In May of 1978 one Marlene Jacobs contacted Gloria Campione, a salesperson in Archer Real Estate, Inc., in regard to the purchase of a home in Broward County, Florida. Ms. Campione showed Ms. Jacobs several homes in the area and on or about June 9, 1978 showed her some substantially completed model homes in the Deer Run subdivision. On June 11, 1978 a Deposit Receipt and Contract for Sale and Purchase was drawn for Lot 155 of the Deer Run project on which a residence was to be constructed for Ms. Jacobs and Ms. Jacobs made an initial deposit of $1,000 (Petitioner's Exhibits 3 and 9; Transcript, page 74). Archer Real Estate, Inc. and Bonne Realty Corporation were indicated as Brokers and Marlene Jacobs as the buyer. That evening Respondent Campione and another salesperson, Shannon Brisbon, who had a contract with a buyer for the same Lot Number 155, Deer Run, had a meeting with the builder/owner of the subdivision (Respondent's Exhibit 2). The builders, Frank Sepe and Lou Gonzalez, decided to accept the contract negotiated by salesperson Brisbon rather than the contract between Ms. Jacobs and Respondent Campione because Ms. Brisbon's clients would have more money to pay on the property at closing. Respondent Campione later notified Ms. Jacobs that Lot 155 was not available to her but a similar house could be built on a similar lot. Shortly thereafter Ms. Jacobs met with Respondent Campione, Ms. Bonello, and the builders and modified the original contract in ink to reflect a change in lots. Ms. Jacobs paid the balance of the deposit for a total of $5,000 and gave it to Respondent Campione. No construction was commenced. In September of 1978 Respondent Bonello contacted Ms. Jacobs and said she desperately needed money at once and wanted Ms. Jacobs to write two checks prior to the closing of the real estate transaction. Ms. Jacobs, without notifying Respondent Campione, drew two checks dated September 8, 1978, one to Respondent Marie Bonello in the amount of $3,478.03 and one to Mr. and Mrs. Wm. Maki in the amount of $5,521.97. No receipt was given for those checks. In October of 1978 Ms. Campione learned that Ms. Jacobs had drawn the two checks in the total amount of $9,000 and had given one to Respondent Bonello and one to the Makis, whom she was informed held a mortgage on a shopping center owned or partially owned by Respondent Bonello. Respondent Campione was alarmed, fearing her client Ms. Jacobs would lose the unsecured money, and forthwith procured a promissory note and a new building contract dated October 4, 1978 from Respondent Bonello reflecting the receipt of the original $5,000 deposit plus the $9,000 in the two unsecured checks. The promissory note and contract were signed by Respondent Bonello upon the insistence of Respondent Campione. The contract showed a total of $14,000 deposit to be used for construction (Petitioner's Exhibits 1, 4 and 7). Still no construction was started. Respondent Bonello did not deny the allegations in the complaint either at the hearing or by deposition. The evidence and the testimony of Ms. Jacobs and Respondent Campione show that Respondent Bonello was a party in her capacity as President and Treasurer of the broker Bonne Realty Corporation, as a principal on a promissory note drawn to secure monies deposited by the buyer in furtherance of a real estate transaction and was a witness on many documents pertaining to the proposed real estate sale. It is the finding of the Hearing Officer that Respondent Bonello participated in all transactions pertaining to the proposed sale of a lot on which a house was to have been constructed for the buyer Ms. Marlene Jacobs. Money was obtained from the buyer by Respondent Bonello and was not to be used and was not used for construction of Ms. Jacob's home as she was led to believe. It is the further finding that Respondent Bonello signed a promissory note to Marlene Jacobs to secure the monies she had obtained from the buyer but only at the request of Respondent Campione. In November, 1978, when it appeared that no house was to be built, Ms. Jacobs discovered that Respondent Bonello had not only contracted to sell her lot to other persons but had used the deposit money in the shopping center Respondent Bonello was constructing for herself (Transcript, page 25). Ms. Jacobs has demanded the $14,000 she paid to Respondents Bonello, Campione and Bonne Realty Corporation, but no money has been received and Ms. Jacobs has been forced to seek recompense through the courts (Petitioner's Exhibits 14 and 15). After Respondent Campione had first showed the property in Deer Run to her client, Ms. Jacobs, and had negotiated the contract offer between Marlene Jacobs, buyer and Archer Real Estate, Inc. aid Bonne Realty Corporation, Co- Brokers and Frank Sepe as Seller Respondent Campione moved her license and worked exclusively with Respondent Marie Bonello. Archer Real Estate, Inc. is not involved in this case. At the hearing evidence was entered indicating that Bonne Realty (corporation was in existence and licensed at the time the foregoing complaint was filed and at the time of the subject transaction. Respondent Marie Bonello was listed as the President, Treasurer and 50 percent shareholder and broker for the corporation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered finding Respondent Marie Bonello guilty of the charges alleged in the Administrative Complaint, and suspending her for a period of two (2) years; That a final order be entered suspending the registration of Bonne Realty Corporation for two (2) years and until compliance with a lawful order imposed in the final order of suspension; That a final order be entered dismissing the complaint against Respondent Gloria Campione. DONE ad ORDERED this 19th day of December, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1980. COPIES FURNISHED: Frederick H. Wilsen, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Alan J. Werksman, Esquire Suite 404, Interstate Plaza 1499 West Palmetto Park Road Boca Raton, Florida 33432 Robert M. Arlen, Esquire 2700 North East 14th Causeway Pompano Beach, Florida 33062
The Issue At issue is whether Respondent committed the violations set forth in the Administrative Complaint dated October 17, 2002, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency responsible for the regulation and discipline of real estate licensees in Florida pursuant to Section 20.125, Florida Statutes (2000). At all times material to this case, Respondent is a licensed real estate broker and holds license number 0349967. In the summer of 2001, Jose Diaz (Diaz) met Saldana at a seminar. The seminar was aimed at persons seeking to participate in federally financed programs designed to assist them in financing home purchases. At the seminar, Diaz was referred to Saldana and described as a person who could assist Diaz in finding a home which could be financed with government funds. Diaz sought Saldana's help in good faith, but Saldana abused Diaz' trust and took advantage of his lack of sophistication in the field of real estate. Specifically, Saldana told Diaz that in order to be eligible for a government financed loan, it would be necessary to pay off certain of Diaz' debts. Saldana instructed Diaz to provide him with blank money orders and represented to Diaz that the money orders would be used by Saldana to pay off the debts so as to facilitate Diaz' receiving a government loan. Saldana failed to deposit the funds with his broker or in an escrow account, and failed to use them for the purposes for which they were intended, that is, to pay off Diaz' debts in order to satisfy government requirements for loaning Diaz funds toward a home purchase. Instead, Saldana converted the funds to his own use. Diaz sued Saldana for civil theft in Palm Beach County Court. On June 19, 2002, a final judgment was entered in Diaz' favor for the full amount of the funds converted, plus interest. As of the date of the final hearing, Saldana had failed to satisfy Diaz' judgment, and had no plans to do so. In early 2001, Rafael Alcocer (Alcocer) met Saldana in a social club and asked him to assist him and his wife in purchasing a home. Saldana agreed, but did little on Alcocer's behalf. Eventually, Alcocer found a home he liked and asked Saldana to present an offer to the homeowner, Diane Dorish (Dorish). Dorish accepted the offer, which included a $500 deposit. However, Saldana falsely told Alcocer that Dorish required a $2,500 deposit, and obtained funds in that amount which Alcocer thought would be used for a deposit required by the homeowner. In fact, Saldana converted those funds to his personal use, although Alcocer was eventually able to recoup $1,500. In addition, Saldana forged Alcocer's signature on a contract which provided for additional terms which had not been authorized by either Alcocer or Dorish. The Division also charged Saldana with collecting a $320 mortgage application fee, plus a $1,000 earnest money deposit from a third client. The Administrative Complaint alleges that Saldana failed to deposit these funds into a trust or escrow account, but instead converted the funds to his own use. However, no evidence was presented in connection with this transaction, and it has not been considered in the disposition of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order revoking Respondent’s real estate license. DONE AND ENTERED this 24th day of April, 2003, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS 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 April, 2003. COPIES FURNISHED: Lorenzo Level, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N308 Orlando, Florida 32801-1900 Enrique Saldana 7560 Gilmour Court Lake Worth, Florida 33467 Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802N Orlando, Florida 32801-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue There were originally three counts in the Administrative Complaint. Count II was dismissed by the Petitioner Board at the beginning of the hearing. Count I alleges that the Respondents failed to refund a fee as required by the contract and the statutes; and Count III alleges that Respondents employed unlicensed persons as sales personnel. Based upon the stipulation of the parties, the primary issue in Count I was whether the Respondents refused the refund in bad faith or under color of some right to the fee. The issue in Count III was whether the activities engaged in by the unlicensed persons were regulated activities.
Findings Of Fact Count I Sav-On Rentals, Inc. (Sav-On), is a licensed corporate real estate broker located in Orlando, Florida, holding License #211231. Carl Stuart Courtney is the active broker for Sav-On and holds Licenses #0211232 and #0017643. Both Respondents were licensed at all times pertinent to the allegations in the Administrative Complaint. Susan Young and A. J. Stephens went to Sav-On on July 18, 1980, seeking information on renting a house. They executed a contract with Sav-On, paid the required $40 fee, and were given data on houses for rent. The contract contains the following pertinent language: . . .Notice: Pursuant to Florida Law: If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of your full fee paid. If you do not obtain rental information you are entitled to receive a return of 75 percent of the fee paid, if you make demand within 30 days of this contract date. . . That night Young and Stephens changed their minds about renting a house. The next day they called Sav-On and requested a refund of their fee. Young rented an apartment from an apartment complex. On August 14, 1980, Stephens prepared the written refund request at Sav-On. Sav-On had a listing for the sublease of an apartment in the same complex in which Young rented her apartment. There is no evidence that Sav-On gave Young or Stephens any information on that sublease, or that Young rented her apartment based on her contact with Sav-On. Sav-On denied the refund on the basis that Young had leased a property available through Sav-On. As of the date of the hearing, Young and Stephens had not received a refund. Count II Christopher LaFrance, a licensed real estate salesman, was one of the first licensees hired by Sav-On Rentals, Inc., after its incorporation in July of 1979. He was employed until January, 1980. When LaFrance was first hired, there were several unlicensed clinical staff employed by Sav-On. These employees were holdovers from Sav-On's non- licensed business. One of the unlicensed persons, Dawn (last name not stated), was responsible for telephone service to persons already registered. She provided additional listings to persons already registered with Sav-On. Another of the unlicensed persons was Stephanie (last name not stated), who was a verifier. She called listings to determine if they were unrented and still available. Stephanie and Dawn were not licensed at the times in question. Between July of 1979, and January, 1980, these unlicensed personnel were gradually replaced by licensed persons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and considering the facts in mitigation, the Hearing Officer recommends that the Respondent, Carl Stuart Courtney, receive a letter of reprimand for violation of Section 475.25(1)(d), Florida Statutes; and that the Respondent, Sav-On Rentals, Inc., be placed on probation for a period of six months for the violation of Section 475.25(1)(d), Florida Statutes. DONE and ORDERED this 15th day of March, 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 15th day of March, 1982. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ronald W. Brooks, Esquire 338-D North Magnolia Avenue Orlando, Florida 32801 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondents are guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes, as alleged in the Administrative Complaint.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility of regulating the practice of real estate pursuant to the provisions of Chapter 475, Florida Statutes, and other pertinent provisions of law and rules. Respondent, Francis Walid Jacob, is a duly-licensed real estate broker having been issued license number 0569854. Respondent, Renters Paradise Realty, Inc., is a duly- licensed real estate brokerage company, having been issued license number 0269583. At all times pertinent to this proceeding, Respondent Jacob was the qualifying broker for the corporate Respondent. At all times pertinent to this proceeding, Philip Jay Slewett was a licensed real estate salesperson employed by the corporate Respondent. Mr. Slewett's license number was 0614888. Related Management Services, Inc. (RMS), was, at all times pertinent to this proceeding, a real estate management company. Intercoastal Towers, an apartment complex, was one of the properties managed by RMS. At all times pertinent to this proceeding, Bruce Terwilliger was the managing Vice President of RMS. At all times pertinent to this proceeding, RMS had a practice of paying commissions to real estate professionals who referred tenants to Intercoastal Towers. The practice required that the real estate professional visit the apartment complex with a client and that the client subsequently lease an apartment at Intercoastal Towers. RMS became suspicious that certain real estate professionals had submitted invoices for clients that they had not referred to the Galahads Apartments, another apartment complex managed by RMS. Because the leasing director at the Galahads had previously been the leasing director for Intercoastal Towers, Mr. Terwilliger investigated whether his company had paid for falsified invoices at the Galahads and at Intercoastal Towers. During his investigation, Mr. Terwilliger reviewed all billings from real estate professionals for commissions based on referrals to Intercoastal Towers, and he interviewed residents to determine whether the billing real estate professional had referred the tenant. Signed statements, including affidavits, were collected during the course of Mr. Terwilliger's investigation, and an investigation by the Miami-Dade Police Department. Based primarily on what Mr. Terwilliger was told by the various residents, he concluded that RMS had paid commissions to the Respondent corporation based on invoices for professional services that had not been rendered. Respondents and the salespersons who generated the billing for a commission split the commission. Mr. Terwilliger met with Respondent Jacob about these invoices. Afterwards, Respondent Jacob had his company reimburse RMS for the invoices at issue in this proceeding. Phillip Slewett was a real estate salesperson employed by the Respondent corporation at the times pertinent to this proceeding. Mr. Slewett admitted that he and another real estate salesperson employed by the Respondent corporation generated the falsified invoices to RMS. Mr. Slewett also implicated two employees of RMS in this billing scam. The evidence did not establish that Respndent Jacob or the Respondent corporation knew or should have known that the invoices generated by Mr. Slewett and the other salesperson were false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint against both Respondents. DONE AND ENTERED this 2nd day of November, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2nd day of November, 1999.
Findings Of Fact Respondent is licensed by the State of Florida as a real estate brokers and holds license No. 0002997. On May 7, 1979, Respondent acted in the capacity of a real estate broker in the transaction of the sale of a parcel of real property located in Polk County, Florida. The purchaser in that transaction was Margaret Rhoden, and the seller was June Davis, who was represented in the transaction by a relative, Henry Goodwin. On May 7, 1979, Margaret Rhoden entered into a Contract for Sale of Rea1 Estate for the purchase of a piece of property Frostproof, Florida, from June Davis. The full purchase price of the property was $3,500, which Ms. Rhoden paid to Respondent in cash on May 7, 1979, and obtained a receipt from Respondent for that amount. At the time the contract was entered into, Ms. Rhoden was advised that a deed should be forthcoming from the seller within two to four weeks. A date of June 20, 1979, was established to close the transaction, subject to a 120-day curative period should any cloud on the title be discovered. The contract between the parties provided that should any such cloud appear of record, the seller would have a period of 120 days after receipt of written notice prior to the date set for closing in which to attempt to cure the defect. The contract further provided that if title defects were not cleared within the l20-day period, the deposit would be returned to the buyer, or, at the buyer's option, the transaction should be closed in the same manner as if no defect had been found. A warranty deed purporting to transfer the property from the seller to the buyer was executed on June 7, 1979, and a title binder was issued on that same date. The title binder indicated an outstanding mortgage on a larger piece of property of which the parcel purchased by Ms. Rhoden was only a part. When efforts to clear this cloud on the title took longer than expected, Ms. Rhoden asked, and was granted, permission by the seller's agent to commence construction on the improvements on the property notwithstanding the fact that she knew that a cloud remained on the title to the lot, and the transaction had not been closed. Construction was not completed on the improvements because Ms. Rhoden ran out of cash during the course of construction. She moved into the dwelling while it was still in a partially completed condition and, on September 8, 1979, with the permission of the seller's agent, received a loan of $3,000 from the $3,500 deposit she had placed with Respondent, Ms. Rhoden executed a promissory note dated September 8, 1979, in which she agreed to repay the $3,000 loan when clear title to the property was issued. Ms. Rhoden used the proceeds of this loan to make additional improvements on the property. On October 26, 1979, Respondent received both the warranty deed dated June 7, 1979, and the title binder issued on that date from the attorney for the seller. When approached by Ms. Rhoden, Respondent agreed to lend her the deed and title binder to attempt to obtain additional financing to complete construction on her home. The clear inference from the record in this proceeding is that there was never any understanding between Respondent and Ms. Rhoden that this deed could be recorded at this or any other juncture in this transaction. In fact, the contract entered into between the buyer and seller clearly called for the payment of the full purchase price of the property at closing, and the note subsequently executed by Ms. Rhoden conditioned the issuance of a warranty deed to her on the payment of the $3,000 face value of the note. Ms. Rhoden was unsuccessful in obtaining additional financing to complete construction on her home, probably due to the fact that when she sought that financing the outstanding mortgage on the property had still not been satisfied. When Respondent advised the seller's attorney that he had loaned the warranty deed to Ms. Rhoden for the purposes outlined above, he was advised that there was nothing to keep Ms. Rhoden from recording the deed, at which point Respondent apparently determined that it would be prudent for him to retrieve the deed from Ms. Rhoden's possession. Ms. Rhoden had her mother return the deed to Respondent in February of 1980. According to the testimony of both Ms. Rhoden and her mother, they felt the purpose for the returning of the deed was to have it recorded. Respondent denies any such understanding. In resolving this conflict in testimony, the clear inference from the circumstances involved in this transaction, including the wording of the contract of sale and the note executed by Ms. Rhoden, supports a finding that all of the parties to this transaction either knew, or should have known, that the recording of the deed at this juncture in the transaction would have been improper. Although the outstanding mortgage had been satisfied in January of 1980, Ms. Rhoden had not Performed her obligation under the contract of sale by paying the full purchase price. When Respondent had recovered the deed from Ms. Rhoden, he was advised by the attorney for the seller not to record the deed until he had received payment from Ms. Rhoden in accordance with the contract and the promissory note. As indicated above, the outstanding mortgage on the property was satisfied in January of 1980. On February 6, 1980, Respondent Prepared a closing statement reflecting the purchase price of the property as $3,500. From this amount he deducted a total of $478 for state documentary stamps, title insurance, Preparing the deed, and amount of real estate commission leaving a the apparently forwarded the note from Ms. Rhoden for $3,000, together with the $22.00 cash balance remaining from her initial $3,500 deposit to the seller along with the deed which the seller had earlier executed. Ms. Rhoden apparently never made or tendered payment of the $3,000 note, the transaction never closed, and at the time of final hearing in this cause an eviction action was apparently pending between the seller and Ms. Rhoden. Paragraph seven of the contract of sale executed between the seller and Ms. Rhoden Provides as follows: If Buyer fails to perform this contract, the deposit this day paid by Buyer as aforesaid shall be retained by or for the account of Seller as consideration for the execution of this agreement and in full settlement of any claims for damages.
The Issue Whether respondents' licenses as real estate brokers and salespersons should be disciplined for alleged misrepresentation, fraud, breach of trust, culpable negligence, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, violation of a duty imposed by statute and contract, and aiding and conspiring with other persons engaged in misconduct-- all in violation of Section 475.25(1)(b), Florida Statutes (1981).
Findings Of Fact On March 25, 1981, Elaine P. Stein, a licensed real estate salesperson, showed Mordechai and Nuti Antebi a house for sale at 1704 North 44th Avenue, Hollywood, Florida. The house was owned by Wayne L. and Gladys E. Hunter and listed with Murray Realty. The listing broker for Murray Realty was Warren Stein, and the salesperson directly involved in the listing was Alex Olson. Elaine Stein was a salesperson in the Emerald Hills office of Chinelly Real Estate, Inc.; the manager for that office was Frederick A. Lewis, a licensed real estate salesperson. (Testimony of Stein, Antebi, Olson, Lewis.) The Antebis, who were in the process of selling their present Pembroke Pines house through the Hollywood Hills office of Chinelly Real Estate, Inc., liked the house and expressed a desire to purchase it. They were told that if they assumed the existing mortgage on the Hunters' house, the interest rate would escalate on the day of closing. (Testimony of Olson, Stein.) The Antebis and Ms. Stein then returned to the Emerald Hills office where a written offer was prepared by Ms. Stein, Vilma Sardiello--a licensed real estate salesperson who frequently worked with her--and Alex Olson, the listing Murray Realty salesperson. Ms. Antebi told Ms. Stein and Ms. Sardiello that she had only $500 to place as an earnest money deposit. The purchase price was $106,000. Ms. Stein then spoke with Mr. Lewis, who advised her that the problem could be handled by executing an assignment of funds. Such an assignment would allow proceeds from the scheduled sale of the Antebis' Pembroke Pines house to be used in the Hunter-Antebi transaction. Ms. Stein, who was unfamiliar with assignments, then procured a written assignment of funds from Ms. Antebi for the sum of $19,500 and prepared a written offer. Ms. Antebi signed the offer and provided a $500 earnest money deposit. (Testimony of Stein, Olson, Sardiello, Antebi; P-1, R-1.) Immediately thereafter, Alex Olson, Murray Realty's listing agent, telephoned the offer to the Hunters in Ocala, Florida. He informed them that the Antebis were offering to purchase their house for $106,000, consisting of a $20,00 deposit, $15,000 at closing, and assumption of the current mortgage of approximately $43,000 at the prevailing interest rate. In addition, the Hunters were to take back a $28,000 purchase money mortgage at 12 percent for five years, with only interest payable monthly (He did not inform them that $19,500 of the $20,000 deposit was in the form of, an assignment of funds from the sale of the Antebis' Pembroke Pines house. He was unaware of the assignment, which Ms. Stein had inadvertently failed to disclose in the written offer.). The Hunters telegraphed their acceptance of the offer pursuant to Mr. Olson's instructions. (Testimony of Olson, W. Hunter, G. Hunter, Antebi, Stein; P-1, P- 4.) After receiving the Hunters' telegram, Ms. Stein realized that the phrase, "assignment of funds," had been mistakenly omitted from the written offer. She alerted Mr. Lewis, who, in turn, contacted Mr. Olson on March 26, 1981, and advised him that $19,500 of the deposit would come from an assignment of the proceeds from the sale of Antebis' Pembroke Pines house. Mr. Olson responded that he would not transmit another offer to the Hunters without a written letter from Chinelly Real Estate, Inc., verifying the amount of deposit held in escrow on the Hunter-Antebi transaction. (Testimony of Olson, Lewis, Stein.) Consequently, on March 26, 1981, Mr. Lewis telephoned Ann Shetter, bookkeeper and accounts supervisor at Chinelly Real Estate, Inc.`s main office. He asked her for the amount of money on deposit in the escrow account for the Antebi transaction. She replied that there was $8,000 held in escrow on the Antebi transaction; but she failed to indicate whether she was referring to the Hunter-Antebi transaction or the Antebi sale of their Pembroke Pine house which was being handled by another Chinelly Real Estate, Inc., office at that time. Mr. Lewis reasonably (although mistakenly) assumed that she was referring to the Hunter-Antebi transaction, the only Antebi transaction being handled by his office (He was unaware that the Antebis' Pembroke Pines house was being sold by another office of Chinelly Real Estate, Inc.). Instead, Ms. Shetter was referring to $8,000, which was being held in escrow, on the Antebis' sale of their Pembroke Pines house. (Testimony of Lewis, Shetter.) Mr. Lewis then in response to Mr. Olson's request, signed and delivered an escrow letter to Mr. Olson on March 26, 1981, verifying that Chinelly Real Estate, Inc., was holding $8,000 in escrow on the Hunter-Antebi transaction. (Testimony of Lewis; P-6.) Mr. Olson then telephoned the Hunters in Ocala on March 26, 1981, and told them that the deposit would be $8,000 instead of $20,000, and that $27,000 would be paid at closing instead of the agreed upon $15,000 (These changes did not affect the total purchase price.). He also told them that be felt an $8,000 deposit would be sufficient. The Hunters agreed to the changes and at Mr. Olson's request, sent a confirming telegram to the Emerald Hills office of Chinelly Real Estate, Inc. (Testimony of Olson, Hunter, Stein; P-5.) Shortly thereafter, Mr. Olson picked up the revised contract which had been prepared by Ms. Stein and signed by the Antebis; without reading it, he sent it to the Hunters for execution. This contract, fully executed by buyers and sellers, provided for a purchase price of $106,000, an initial $500 deposit, an additional deposit paid to Chinelly Real Estate, Inc.`s trust account on or before March 26, 1981, in the amount of $7,500, an assumption by buyers of an existing first mortgage held by American Savings and Loan at prevailing interest rate in the principle amount of $43,000, a $28,000 purchase money mortgage bearing interest at 12 percent for five years, interest only, payable monthly, balloon in five years, and approximately $27,000 due at closing, including $12,000 provided by assignment of funds from the sale of the Antebis' current house. (Testimony of Stein, Olson, W. Hunter, G. Hunter; P-2.) On April 9, 1981, Nancy Gooch, vice-president in charge of processing transactions for Chinelly Real Estate, Inc., discovered the discrepancy in the Hunter-Antebi transaction, that the contract indicated that $8,000 would be deposited in the firm's escrow account while, in fact, only $500 had been deposited. She alerted her boss, John Chinelly, Jr., a licensed real estate broker, who, upon further investigation, found the Lewis letter which mistakenly represented that $8,000 was held in escrow on the Hunter-Antebi transaction. (Testimony of Chinelly; P-9.) Mr. Chinelly, who was about to depart on a four-day religious retreat, called in Reginald D. Lucas, general sales manager and a licensed real estate broker, and instructed him to find out the facts surrounding the discrepancy and solve the problem. On April 9-10, 1981, Mr. Lucas called Mr. Lewis and obtained his explanation of the escrow discrepancy; after discussing alternative courses of action, Mr. Lucas told him to meet with Ms. Stein and Ms. Sardiello and decide how they would solve the problem. Various options discussed included: (1) canceling the transaction, (2) persuading the Antebis to place an additional $7,500 into escrow, and (3) depositing the personal funds of Mr. Lewis, Ms. Stein, and Ms. Sardiello to cover the escrow shortage. On Friday, April 10, 1981, and during the ensuing weekend, they discussed among themselves possible penalties, such as loss of their jobs and licenses, and what course of action would be ethical and proper. After Ms. Stein failed to persuade Ms. Antebi to place an additional $7,500 into escrow, the three real estate salespersons--Mr. Lewis, Ms. Stein, and Ms. Sardiello--reluctantly agreed to each loan the Antebis $2,500 to make up for the Hunter-Antebi escrow shortage (They obtained a promissory note dated April 10, 1981, from the Antebis requiring repayment when the Pembroke Pines house was sold.). (Testimony of Lucas, Stein, Lewis; R-5.) Mr. Lewis, Ms. Stein, and Ms. Sardiello acted on their belief that Murray Realty and the Hunters had been told of the escrow discrepancy and consented to their loaning money to the Antebis to make up for the difference. Mr. Lucas led them to believe that such was the case. Between April 10 and 13, 1981, he had telephoned Mr. Olson to tell him about the escrow shortage. Because Mr. Olson was out of town, he spoke with Warren Stein (unrelated to Elaine Stein), the listing broker for Murray Realty. He and Mr. Stein agreed that they should promptly notify the Hunters of the situation. (Testimony of Lewis, Stein, Sardiello, Lucas.) Shortly thereafter, on April 13, 1981, Mr. Lucas went to Mr. Stein's Murray Realty office for the purpose of jointly notifying the Hunters. In the ensuing telephone call, the Hunters were told of a problem with the escrow account, that the three sales persons--Ms. Stein, Ms. Sardiello, and Mr. Lewis- -had agreed to make up for the shortage by depositing $7,500 of their own money into escrow, and that the closing would be unaffected. The Hunters knew of and consented to the three salespersons contributing $7,500 into escrow (There is conflicting testimony on whether the Hunters were told of this $7,500 contribution. The Hunters deny it while Mr. Lucas insists they were told of and consented to the arrangement. Mr. Lucas's testimony on this question is accepted as persuasive. The Hunters' testimony conflicts with the statements contained in their complaint filed with the Department.). (Testimony of Lucas; R-7.) When Mr. Olson returned to Murray Realty on April 14, 1981, and learned of the events which had transpired in his absence, he requested written verification from John C. Chinelly, Jr., that the three real estate salespersons had placed the $7,500 in escrow. Mr. Chinelly verified that the money had been placed into escrow and wrote a letter to Murray Realty confirming that fact. At that time, Mr. Chinelly--based on his conversations with Mr. Lucas and Mr. Stein--also believed that the Hunters had consented to the salespersons depositing the additional $7,500 into escrow. (Testimony of Chinelly, Olson, Lucas; P-7.) Closing of the Hunter-Antebi transaction was scheduled for April 28, 1981. At closing, the Antebis complained about the condition of the roof, pool, and air conditioner. The Antebis also did not have sufficient funds to close the transaction. The transaction failed to close. (Testimony of Stein, Antebis, Olson.) Subsequently, the Antebis closed on the scheduled sale of their Pembroke Pines house. As a condition to this closing, $7,500 was placed into escrow pending a court decision on a complaint for interpleader filed in Broward County Circuit Court by Chinelly Real Estate, Inc., concerning the Hunter-Antebi transaction. At all times material to the proceeding, respondents John C. Chinelly, Sr., Richard M. Chinelly, Paul James Fleck, Nancy J. Gooch, Mary E. Hulsey, James A. Chinelly, John C. Chinelly, Jr., Shana Munden, Joseph Tresser, Reginald D. Lucas, Harold E. Whitter, Asa F. Brand, Josephine B. Shanefelt, Brett A. Slabe, William F. Kuemerle, Jr., and Marshall Feinsilber were the qualifying brokers for Chinelly Real Estate, Inc.
Recommendation Based on the foregoing, it is RECOMMENDED: That the two administrative complaints and all charges against respondents be dismissed, with prejudice. DONE AND RECOMMENDED this 14th day of June, 1982, in Tallahassee, Florida. R. L. CALEEN, JR., 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 June, 1982. COPIES FURNISHED: Harold M. Braxton, Esquire 45 Southwest 36 Court Miami, Florida 33135 Howard Todd Jaffe, Esquire 1915 Harrison Street Hollywood, Florida 33020 Rodger L. Spink, Esquire 6600 Taft Street, Suite 404 Hollywood, Florida 33024 Michael J. Garavaglia, Esquire 3111 Cardinal Drive Vero Beach, Florida 32960 Vilma Sardiello 5207 Hayes Street Hollywood, Florida 33020 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
