Findings Of Fact I.Z. Mann Realty Corporation was at all times material to this proceeding a corporation registered as a real estate broker with the Commission, with its principal business address at 240 North Washington Boulevard, Sarasota, Florida, 33577. Irving Z. Mann was at all times material to this proceeding a real estate broker registered with the Commission, and the holder of two registration certificates: one as an individual broker with an office at 2197 Princeton Street, Sarasota, Florida 33577; and the other license as president and active broker of I.Z. Mann Realty Corporation. Stanley M. Robbins was at all times material to this proceeding a registered real estate salesman in the employ of I.Z. Mann Realty Corporation. At all times material to this proceeding Fritz K. Grolock was a registered real estate salesman, and from April 12, 1972, to February 2, 1976, he was registered with the Commission as a real estate salesman in the employ of I.Z. Mann Realty Corporation. From February 2, 1976, to November 29, 1976, Mr. Grolock was registered with the Commission as a real estate salesman in the employ of I.Z. Mann & Associates, Inc. At all times material to this proceeding Irving Z. Mann was president, and Stanley M. Robbins was vice president, assistant secretary, treasurer and general sales manager of I.Z. Mann & Associates, Inc., a Florida corporation which was the owner and developer of the Palma Sola Harbor condominium development in Sarasota County, Florida. On or before February 4, 1976, Mr. Grolock and Mr. Robbins had agreed that Mr. Grolock would receive for his services as a real estate salesman for I.Z. Mann & Associates, Inc. a three percent commission based upon the sales price of individual condominium units sold at Palma Sola Harbor. Commissions were to be paid to Mr.Grolock at the end of the month in which the sale of each such unit was consummated. Mr. Robbins explained to Mr. Grolock at the time of this agreement that I.Z. Mann & Associates, Inc. was short of cash, and that should Grolock make any sales, he might have to wait for some indefinite period of time to receive his commission. Mr. Grolock indicated his willingness at the time to proceed on that basis. No testimony was adduced, and no documentary evidence was offered to establish that Mr. Grolock was employed by I.Z. Mann Realty Corporation, Inc., at any time material to the allegations contained in the Administrative Complaint. During the course of his employment as a real estate salesman with I.Z. Mann Realty Corporation, Inc. Mr. Grolock solicited and obtained a real property sales contract between Elmer C. Sutter and Ruth W. Sutter, as purchasers, and I.Z. Mann Realty Corporation, Inc., as seller, for a condominium unit in the Palma Sola Harbor project. The purchase price of the unit was $26,450, and the evidence established that Mr.Grolock is due, and has not been paid, a commission of $793.50 for that sale. During the course of his employment as a real estate salesman with I.Z. Mann & Associates, Inc., Mr. Grolock solicited and obtained a real property sales contract between Martin G. Tepatti and Dorothy L. Tepatti, as purchasers, and I.Z. Mann Realty Corporation, Inc., as seller, for a condominium unit in the Palma Sola Harbor project. The purchase price of the unit was $37,450, and the evidence established that Mr. Grolock is due, and has not been paid, a commission of $1,123.50 for that sale. During the course of his employment as a real estate salesman with I.Z. Mann Realty Corporation, Inc., Mr. Grolock solicited and obtained real property sales contract (Petitioner's Exhibit #1) dated April 29, 1976, between Donald F. Brown and Barbara S. Brown, as purchasers, and I.Z. Mann Realty Corporation, Inc. as seller, for a condominium unit in the Palma Sola Harbor project. The purchase price of the unit was $37,450, and the evidence established that Mr. Grolock is due, and has not been paid, a real estate commission of $1,123.50 for that sale. Mr. Grolock did not attend the closing of any of the three transactions referenced above and described in the Administrative Complaint. However, the only evidence of record establishes that these transactions resulted in "negative closings" that is, after deductions of amounts due on the pre-existing construction mortgage, charges for documentary stamp taxes, tax pro-rations and the like, no funds remained for disbursement to I.Z. Mann Realty Corporation, Inc. for payment to Mr. Grolock as a commission. Neither Mr. Mann, Mr. Robbins, I.Z. Mann Realty Corporation, nor I.Z. Mann & Associates, Inc. received any funds at the closing of these transactions. Some time after the closings of the three transactions described in the Administrative Complaint, Mr. Grolock spoke with Mr. Robbins concerning non- payment of his commissions. Mr. Robbins explained t6hat the three transactions had resulted in "negative closings," but that if Mr. Grolock would be patient he would be paid his commissions in due course. Mr. Robbins discussed the commissions once or twice thereafter with Mr. Grolock, each time explaining that the company was short of money but that Mr. Grolock would be paid eventually. Because of poor market conditions in the condominium industry, I.Z. Mann Realty & Associates experienced financial problems which ultimately resulted in the company's insolvency. The company eventually voluntarily relinquished its assets to creditors, or had its interest in those assets foreclosed, and at the present time is no longer actively engaged in business. By letters to Mr. Robbins dated December 7, 1976, and January 19, 1977, (Petitioner's Exhibit #2) Mr. Grolock demanded that some arrangements be made for payment of his past due commissions. When he received no reply to these letters, Mr. Grolock sent a letter (Petitioner's Exhibit #2) to Mr. Mann dated April 25, 1977, listing the transactions which resulted in $3,040.50 being owed to him for real estate commissions. Shortly after receiving this letter, Mr. Mann telephoned Mr. Grolock, on May 5, 1977, and told him ". . . the company had been inactive for a long time, but that I would see to it that he would get paid eventually. Just give us a chance to get some money to do it." (Transcript, p. 63). Mr. Grolock agreed at that time to wait for payment of his commissions. Some time after his May 5, 1977, telephone conversation with Mr. Mann, Mr. Grolock filed a complaint with the Commission ". . . [b]ecause I found no other recourse. . . [t]o obtain my commission . . . ." (Transcript, p. 26).
The Issue The Administrative Complaint alleges that the Respondents are guilty of fraudulently withholding a commission and failing to account for said commission. The Respondents contend that there was no commission owed to the salesperson because the salesperson did not obtain the listing contract upon which the transaction closed and had been discharged for cause before a contract for purchase was obtained. The factual issues upon which the case is determined is whether the listing contract upon which the transaction closed was obtained by the salesperson who claimed the commission, and whether the contract for purchase was received before the salesperson was discharged for good cause. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact At all times relevant to the allegations of the Administrative Complaint and at the time of hearing, the Respondent, Jacqueline B. Ousley, held real estate broker's license number 0333339 and operated the Respondent corporation, Touch of Class Realty, Inc., which held corporate real estate broker's license number 0218522. Both licenses were issued by the Florida Real Estate Commission. (See Petitioner's Exhibit 1.) Diane Carroll was employed by the Respondents as a real estate salesperson from February to June l2, 1982. On June 13, 1982, Ms. Carroll was discharged for good cause by the Respondents. On May 25, 1982, Ms. Carroll obtained an open listing on the Breezeway Motel, 2001 North Dixie Highway, Lake Worth, Florida, from Carl C. Summerson. This listing was good through June 25, 1982. (See Petitioner's Exhibit 2.) Based upon this contract, the Respondents showed the property to prospective buyers, to include Anthony and Deborah Hedley, the ultimate purchasers of the property. However, after the Hedleys had become interested in the property, the Respondents became aware that Summerson was not the sole owner of the Breezeway Motel. Because of the interest of the Hedleys and the prospects of selling the property, the Respondents sought and obtained an exclusive listing agreement from both owners of the motel, Carl Summerson and Roy Chapin, which was signed on June 14, 1982. As an exclusive listing, this contract supplanted the open listing obtained by Ms. Carroll on May 25, 1982. The Respondents obtained an offer to purchase the Breezeway Motel from the Hedleys on June 16, 1982, which offer was accepted by Summerson and Chapin. This transaction closed, and the Respondents received one-half of the ten percent commission, $33,800. The custom of the profession is that salespersons earn a listing commission on a listing contract obtained by them while they were employed if a contract for the purchase of the property is obtained before the salesperson leaves the broker's employment. The Respondents tendered a "referral fee" of $845 to Ms. Carroll, as opposed to a salesperson's share of the commission which was $5,070. Ms. Carroll has a civil action pending, seeking to obtain payment of the commission.
Recommendation Having found the Respondents not guilty of violating Sections 475.25(1)(b) and (d), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Florida Real Estate Commission dismiss the Administrative Complaint against the Respondents, Jacqueline B. Ousley and Toch of Class Realty, Inc. DONE and RECOMMENDED this 3rd day of October, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1983. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Donald P. Kohl, Esquire 3003 South Congress Avenue, Suite 1A Palm Springs, Florida 33461 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Randy Schwartz, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, Florida 32801 =================================================================
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission enter its final order directing Capitol Rental and Realty, Inc. and Lawrence D. Van Ore cease and desist from using non-registrants as real estate salesmen and further from failing to use the full name of the registrant and the term "Broker" or "Realtor" within its classified advertisements. The Hearing Officer further recommends that the registration of the registrant be suspended until the corporate broker and associate broker Lawrence D. Van Ore have complied with said order of the Commission. DONE and ORDERED this 26th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Gough, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Don Scarlet, Esquire 801 Magnolia - Suite 317 Orlando, Florida 32803
Findings Of Fact Although the parties to this case stipulated that the contract between the LaPointes and the Crowes was a valid contract for the purchase and sale of real estate, a genuine dispute arose between the LaPointes and the Crowes in that regard. Respondents became involved in this matter by showing the Crowes' property to the LaPointes on or before May 9, 1983, and thereby becoming a "co-operating broker'. with Deltona's Marco Island Realty Co. under an Exclusive Right To Sell agreement between Deltona and the Crowes dated January 13, 1983. Under the Exclusive Right To Sell, the Crowes agreed to pay Deltona a fee of 6% of the sales price for brokerage services and agreed, if a buyer failed to close a sales contract and forfeited a deposit to the Crowes, that Deltona could retain one- half of the deposit, but not exceeding the total amount of Deltona's fee, as compensation. The Exclusive Right To Sell also provided that Deltona was responsible to promptly pay any cooperating broker who sells the property for his services as soon as possible after receipt by Deltona of its real estate broker fee as provided in the Exclusive Right To Sell. By May 10, 1983, the LaPointes had made an offer to buy the property and the Crowes, by May 10, 1983, telegram to Deltona, agreed to sell the property for "$165,000, $500 in escrow with balance of $15,500 additional deposit after acceptance with balance at closing . . . sales commission $8,650. On May 11, 1983, Respondent Mary S. Davey, signed the sales contract for the LaPointes' purchase of the Crowes' property as "Agent (authorized by Buyer)." The sales contract also recited: "Buyer acknowledges that Marco Beach Enterprises, Inc/Deltona Marco Island Realty is the procuring real estate broker(s) in this transaction, and that the Broker is the agent for the Seller, and is being paid by the Seller." Respondent. Davey notified the LaPointes of the requirement for a $500 initial deposit and submitted the signed sales contract for the Crowes' signature. By letter dated May 12, 1983, Respondents confirmed "that the total commission to be paid on the sale of the [Crowes'] property is $8,650.00." It also confirmed: said commission is to be split 50/50 between MARCO BEACH ENTERPRISES, INC. and Deltona's Marco Island Realty." Also on May 12, 1983, the LaPointes sent Respondents a check for the $500 initial deposit with a note asking for a complete inventory of the contents of the condominium the LaPointes had inspected and a list of renters. The Crowes signed the Sales Contract on May 16, 1983. By May 24, 1983, Respondents still had not complied with the request for a complete inventory of the condominium's furnishings and for a list of renters. On that date, Respondents sent the LaPointes a copy of the signed Sales Contract with a letter requesting them to sign the Sales Contract under Respondent Davey's signature. Before they arrived, the LaPointes' May 25, 1983, letter to Respondents crossed in the mail. It requested that Respondents put something in the contract concerning pro-ration of water bills and taxes and payment of a water damage bill by the Crowes. The LaPointes repeated their request for an accurate inventory of the furnishings of the condominium and stated that they were placing their trust in Respondents to represent the LaPointes' interests. Some time between the LaPointes' receipt of Respondents' May 24 letter with a copy of the Sales Contract and June 13, 1893, the LaPointes decided to ask for cancellation of the purchase. The LaPointes cited circumstances involving their financing and their disappointment that Respondents had not furnished an inventory of the furnishings. By June 16, 1983, Respondents had responded to the request for cancellation, vigorously contending that a valid and binding contract existed between the LaPointes and the Crowes. By June 24, 1983, the Crowes, through an attorney, echoed their agreement with the position taken by the Respondents that there was a valid and binding contract. By letter dated June 29, 1983, from the LaPointes attorney, the LaPointes questioned the validity of the contract, saying that Respondent Davey had no authority to sign the Sales Contract on behalf of the LaPointes, who never did sign. The Respondents got a copy of this June 29 letter. On July 11, 1983, the LaPointes, through a Florida attorney, demanded of Respondents that their deposit be, returned. Respondents tried to extricate themselves by referring the LaPointes to the Crowes' attorney. The Crowes and the LaPointes remained at a stalemate until after May 7, 1984, when the Crowes sold their property to another purchaser for $162,500. Thereafter, by about June 19, 1984, the LaPointes, the Crowes and Deltona had negotiated their proposed resolution of the matter by disbursement of $3,000.00 to the Crowes and $13,500.00, plus all accrued interest, to the LaPointes. Respondents had not been included in any of these negotiations, and they refused to sign the agreement. As stipulated by the parties to this case, the matter remains unresolved. The Florida Real Estate Commission Handbook states in pertinent part: "But, what are the rights of the seller and the broker? In the absence of a specific agreement or custom, when a purchaser refuses to sign a contract after the offer has been accepted, the broker is only entitled to the agreed or usual commission percentage of the deposit. Where the purchaser refuses to go through with a contract by which he is bound and which can be enforced against him by the seller, the broker may, in the absence of a contract or custom, appropriate the deposit up to the amount of the earned commission."
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 that has been filed by Petitioner, Department of Professional Regulation, Division of Real Estate, against Respondents, Mary S.·Davey and Marco Beach Enterprises, Inc. RECOMMENDED this 7 day of August, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 7 day of August, 1986. APPENDIX The following are rulings on proposed findings of fact to the extent required by Section 120.59(2), Florida Statutes (1985): Paragraphs 1 through 6 of Petitioner's proposed findings of fact are accepted as substantially factually accurate and are incorporated in the Findings Of Fact to the extent necessary. Paragraphs 8 and 10 of Petitioner's proposed findings of fact would be included in paragraph 1 above except that they are unnecessary. Paragraph 7 of Petitioner's proposed findings of fact is rejected as unsupported by the evidence. Paragraph 9 of Petitioner's proposed findings of fact is rejected as contrary to the greater weight of the evidence and/or Findings Of Fact. It ignores the Exclusive Right To Sell which must be read together with the Sales Contract. Respondents submitted no proposed findings of fact designated as such or in a form which entitles them to specific rulings. However, their proposed findings of fact were carefully considered. COPIES FURNISHED: Susan Hartmann, Esquire Department of Professional Regulation Division of Real Estate P. O. Box 1900 Orlando, Florida 32802 Arthur V. Woodward, Esquire 940 North Collier Blvd. P. O. Box 1 Marco Island, Florida 33937 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Division of Real Estate Department of Professional Regulation P. O. Box 1900 Orlando, FL
Recommendation Deny the application of Petitioner for Registration as a salesman for the Florida Real Estate Commission. DONE and ENTERED this 6th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAIL: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Dwaine Eugene Spann Route 2, Box 376S Sarasota, Florida 33582
