Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the charges against Respondent, Linda N. Phillips, be DISMISSED. DONE and ENTERED this 16th day of October, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1981.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found; At all times material to this proceeding, Respondent, M. Emaline Jones was a licensed real estate salesman in the State of Florida, license number, 0045290, and an associate with Crown Real Estate, Inc., (Crown) now known as Daniel Crapps Agency, Inc. (Crapps). On January 20, 1987, John W. Hearne and his wife, Wilhemina Hearne (Hearne) went to the office of First Florida Realty and Auction (First), and met with Jackie Taylor and Jack Endfinger. On that same day, Endfinger showed Hearne the property owned by Sandra Sherman that was listed in the Multiple Listing Service (MLS) with Crapps as the listing agency. On January 21, 1987, a contract for the purchase of the Sherman property at a purchase price of $52,900.00 was executed by Hearne with an addendum requiring owner financing attached. Endfinger, as agent for Hearne with authority to deliver the contract, delivered the contract with the addendum attached to Respondent at Crapps around 4:00 p.m. On January 21, 1987, another contract for the purchase of the Sherman property at a purchase price of $45,000.00 was executed by Al and Shirley Williams and submitted to the Respondent by another associate of Crapps. On January 21, 1987, Respondent reviewed both con- tracts with Katrina Blalock, Office Manager for Crapps. Both contracts along with an expense settlement statement for each contract were presented to, and reviewed with, Sherman by both Blalock and Respondent on January 21, 1987. Both contracts were rejected by Sherman. The Williams contract was rejected mainly due to price. The Hearne contract was rejected due to price and the requirement of owner financing. Sherman authorized Respondent to make a counteroffer with a pur- chase price of $55,000.00 to Williams only. Respondent had no authority from Sherman to make, or accept, a counteroffer to, or from, Hearne. Because of her and her late husband's relationship with Williams, Sherman wanted Williams to have the property if they could come to terms. Upon being advised by Respondent of Sherman's rejection of the Hearne contract, Endfinger contacted Hearne and a counteroffer with a purchase price of $55,000.00 and third (3rd) party financing was executed by Hearne. There is insufficient evidence to establish whether Endfinger verbally advised Respondent of this contract or its terms prior to Sherman entering into a contract for sale with Williams. The contract was never physically delivered to Respondent or anyone else at Crapps at anytime. Either on January 21 or January 22, 1987, Williams, after reviewing Sherman's counteroffer of $55,000.00, made an offer of $52,000.00 which was accepted by Sherman. A contract with the new terms was executed on January 23, 1987, but Williams was unable to fulfill the contract and Hearne eventually purchased the Sherman property for $52,500.00. Subsequent to Sherman and Williams reaching an agree- ment on the property, Endfinger called Respondent, and upon being told of the agreement, told Respondent that Hearne would have given $55,000.00, but did not elaborate on the terms of the second contract executed by Hearne.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Commission enter a Final Order DISMISSING the Administrative Complaint filed herein. Respectfully submitted and entered this 13th day of January, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3993 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Petitioner failed to timely submit any posthearing Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent's Proposed Findings of Fact were set out in eight (8) unnumbered paragraphs which for purposes of this Appendix I have numbered 1 through 8. Adopted in Findings of Fact 2 and 3 but clarified. Adopted in Findings of Fact 4, 5 and 6 but clarified. Adopted in Finding of Fact 7. The first sentence of paragraph 4 is rejected as not being material or relevant. The balance of paragraph 4 is adopted in Finding of Fact 8. The last sentence of paragraph 5 is rejected as not being material or relevant. The balance of paragraph 5 is adopted in Findings of Fact 7 and 9. Adopted in Findings of Fact 8 and 10 but clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 9. COPIES FURNISHED: Darlene F. Keller, Acting Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 Arthur R. Shell, Jr., Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 William J. Haley, Esquire Post Office Box 1029 Lake City, Florida 32056-1029
The Issue The issues to be determined are whether Respondents violated the provisions of Section 475.624, Florida Statutes (2007), and Florida Administrative Code Rule 61J1-7.001, as charged in the Administrative Complaints, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of real estate appraisers pursuant to Section 20.165 and Chapters 455 and 475, Part II, Florida Statutes (2009). Respondent, Fred Catchpole, is a licensed real estate appraiser, having been issued license number RD-7674. Respondent, William E. Woods, is a registered trainee appraiser, issued license RI-4855. At the times relevant to these complaints, Mr. Woods was supervised by Respondent Catchpole. On October 8, 2009, the Department issued Administrative Complaints against both Respondents. At the heart of both Administrative Complaints were allegations related to an appraisal report allegedly prepared by Catchpole and Woods. With the exception of the order in which Respondents are identified, the allegations in paragraphs four and six of the Administrative Complaints are identical. Quoting from the Administrative Complaint in Case No. 09-6822 (DBPR Case No. 2009016581), the Administrative Complaint alleges the following: On or about September 25, 2007, Fred Catchpole (Respondent) and William Woods developed and communicated an appraisal report (Report 1) for property commonly known as 2250 Braxton Street, The Villages, Florida 32162 (Subject Property), and estimated its value at $190,000.00. A copy of Report I is attached hereto and incorporated herein as Administrative Complaint Exhibit 1. * * * 6. Respondent made the following errors and omissions in Report 1: Incorrect effective on the cover of the report, the correct date is September 25, 2007; Incorrect effective date on in the Reconciliation section of the report; Incorrect effective date on the signature page of the Report; Incorrect Subject Property Inspection date on the signature page of the Report; Incorrect Comparable Sales inspection date on the signature page of the report; . . . . The Amended Administrative Complaint alleges the same facts, with the same dates. At hearing, it was established that there is no appraisal report developed or communicated that is dated September 25, 2007. The Report, attached to each Administrative Complaint and each Amended Administrative Complaint, is actually dated February 25, 2007. Once it was established that there was no appraisal report matching the dates alleged in the Administrative Complaint, the Department moved to dismiss the Amended Administrative Complaints in their entirety, with prejudice.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Real Estate Appraiser's Board enter Final Orders with respect to each Respondent dismissing the Amended Administrative Complaints in their entirety. DONE AND ENTERED this 27th day of April, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 27th day of April, 2010. COPIES FURNISHED: Robert Minarcin, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757 Fred Catchpole 5449 Marcia Circle Jacksonville, Florida 32210 William Woods 2103 Herndon Street Dover, Florida 33527 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757
The Issue Whether the license of the Defendant should be suspended or revoked.
Findings Of Fact Defendant Robert M. Trombley holds real estate broker's license No. 0090046. An Information was filed against Defendant charging him with sharing a commission or paying a fee or other compensation to a person not properly registered as a real estate broker or salesman under the laws of this state for the referral of real estate business, clients, prospects or customers in violation of Subsections 475.25(1) and 475.01(2), Florida Statutes. Mary M. Morritt, a real estate broker with Realty Unlimited, was involved in a real estate transaction with Defendant for the purchase of 37 acres of property in Brevard County in the summer of 1972. Several times she met with others and the purhaser's agent, Percy Buzaglo, in order to draw a contract. Mrs. Morritt suggested at a meeting in the office of Tom Griffith, Esquire, that the real estate commission be renegotiated and divided equally amoung the three brokers involved in the sale. She received no response to her suggestion although on a previous occasion Defendant had understood from a remark of Defendant that another broker was involved in the purchase. Mrs Morritt received a commission for the sale although she did not attend the closing. She never saw the unknown so-designated broker she had understood would share the commission and saw no evidence of an agreement or payment of real estate commission to him. At the time of the hearing the witness did not know the names of all of the principals. Mr. Ray M. Teboe, a registered real estate broker with Realty Unlimited, testified that there was a commission split in April 1973 for the sale of the subject property 50 percent to Defendant and 50 percent to Realty Unlimited which in turn was divided with The Keyes Company. Mr. Teboe understood from Mrs. Morritt that Defendant had another broker working with him. Mr. Teboe understood that Defendant was afraid of getting into trouble with, he understood, the Florida Real Estate Commission. Mr. Teboe was at some of the meetings concerning the transaction with Defendant and Defendant mentioned that he had to pay his wife alimony. Relevancy of this statement not established. The main witness for the Plaintiff refused to testify upon the grounds that his testimony might tend to incriminate him. The Hearing Officer further finds: The Plaintiff Florida Real Estate Commission presented evidence and testimony by witnesses with innuendo that Defendant as a cooperating real estate broker did share a real estate commission in violation of Chapter 475, Florida Statutes, but did not present sufficient competent evidence to establish its position that the Defendant did in fact violate the statute.
Recommendation Dismiss the Information. DONE and ORDERED this 12th day of February, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 David T. Price, Esquire Price, Bryne & Case 2810 East Oakland Park Boulevard Fort Lauderdale, Florida
Findings Of Fact Respondent Freedom of Choice Realty, Inc., is a registered corporate real estate broker holding license number C00213882. Respondents Richard S. Testut, A. C. Kibler and Beatrix Meyer-Burghagen are registered real estate brokers holding licenses numbered 0180949, 0047414 and 0145168, respectively, and these individuals are officers of Respondent Freedom of Choice Realty, Inc. In addition, Beatrix Meyer-Burghagen holds a license to operate real estate school named Florida Real Estate Clinics, Inc., which is also a Respondent herein. In support of the allegations in its Administrative Complaint the Petitioner presented testimony and evidence from five witnesses. The first, Stephen E. Thomas, Jr., is an officer of Respondent, Freedom of Choice Realty, Inc., and he is also an officer of Florida Real Estate Council, Inc. Neither Mr. Thomas nor Florida Real Estate Council, Inc., hold any real estate licenses, and they are not parties to this proceeding. Florida Real Estate Council, Inc., was formed to offer licensed salespeople an opportunity to belong to their own association. During the month of April, 1980, this organization sponsored a series of public meetings to which inactive licensees were invited by means of a flier which was mailed to approximately 21,000 of them in South Florida. The purpose of these meetings was to inform inactive real estate salespeople concerning the status of their licenses after June of 1980. Generally, these fliers conveyed the impression that inactive licenses had been placed in jeopardy by a change in the real estate law, and the information conveyed at the public meetings reiterated the existence of an apparent threat to these licenses. Two other witness presented by the petitioner established the content of one of the public meetings held by Florida Real Estate Council, Inc., in April of 1980. The remaining two witnesses were presented to clarify the actual changes that were made in the real estate law on July 1, 1980. There was no truth or substance to the information conveyed to over 21,000 inactive licensees concerning the status of these licenses as a result of statutory changes made in 1980. However, this information was not established to be more than an inaccurate lay interpretation of the Florida Statutes by Stephen E. Thomas, Jr., or by Florida Real Estate Council, Inc. In summary, the Petitioner's evidence fails to prove a conspiracy among the Respondents as alleged in the Administrative Complaint. Except for the fact that Stephen E. Thomas, Jr., is an officer of both Florida Real Estate Council, Inc., and Respondent Freedom of Choice Realty, Inc., insufficient evidence was presented to establish a connection between these corporations. Any false and misleading statements or information disseminated at the public meetings and by flier was the action of Mr. Thomas, individually, and/or Florida Real Estate Council, Inc., neither of whom are subject to the jurisdiction of the Board of Real Estate, and neither of whom are parties to this proceeding. The evidence does not support a finding that any of the Respondents conspired together for the purpose of distributing false information to real estate license holders, as alleged. Nor was there substantial, competent evidence that the Respondents, or any of them received financial benefit either from the flier or the public meetings. Finally, based upon the testimony of Petitioner's witness, Stephen E. Thomas, Jr., and evidence from the only Respondent who testified, Richard S. Testut, Freedom of Choice Realty, Inc., attempted to operate a real estate brokerage business beginning on July 1, 1980. The initiation on July 2, 1980, of the investigation which resulted in the filing of the administrative Complaint under consideration here adversely affected its employees, as well as potential employees, to such an extent that no sales or commissions could be earned. However, this company did have a staff, listings, sales meetings, literature, and advertised to recruit salespeople. Thus, the Petitioner's contention that this corporation neither actively employed any licensees, or performed any brokerage services, was not proven.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed in this case be dismissed. THIS RECOMMENDED ORDER entered on this 18 day of February, 1981. WILLIAM B. THOMAS 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 18 day of February, 1981. COPIES FURNISHED: Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Alan H. Konigsburg, Esquire 1700 East Las Olas Boulevard Suite 202 Fort Lauderdale, Florida 33301 Mr. Richard S. Testut 4180 Coral Springs Drive Coral Springs, Florida 33035
Findings Of Fact Louis W. George has been registered as a real estate broker in Florida for seven years; he holds license No. 0030981. At all pertinent times, he has done business as Apollo Realty of Miami, and has been, in addition, co-owner with Allen Scherer of Karma Properties, Inc. In an effort to sell a house he owned at 1105 Sharazad Boulevard in Opa locka, Florida, John F. German placed a classified advertisement in a newspaper. Seeing the ad, respondent George telephoned Mr. German and offered his services as a real estate broker. As a result, Mr. German eventually signed an agreement listing the house with Apollo Realty of Miami for 90 days, which elapsed without a sale, in late 1978 or early 1979. In June of 1979, Mr. German again visited respondent, telling him he would let the property go for $25,000. The following day respondent telephoned Mr. German to say, "I'll take it," to which Mr. German replied, "That was yesterday." Later in the telephone conversation, however, Messrs. George and German agreed on a price of $25,000. On June 29, 1979, respondent presented Mr. German with a form "Deposit Receipt." Petitioner's Exhibit No. 2. Mr. German lined through $23,500, substituted $25,000, initialled the alteration, and signed the document. Respondent had already signed. Petitioner's Exhibit No. 2 recites: Receipt is hereby acknowledged of the sum of . . .$500.00. . .from KARMA PROPERTIES, INC. proceeds to be held in escrow by APOLLO REALTY OF MIAMI subject to the terms hereof. . . This offer is subject to obtaining an FHA commitment of not less than $35,000.00 if commitment is less than-the above $35,000.00 this offer will be null and void . . . [I]n case of default by the purchaser. . .the seller may at his option retain one-half of the deposit herein paid as consideration for the release of the purchaser. . . These written provisions notwithstanding, respondent told Mr. German that he would give the $500 deposit to his attorney, rather than place it in Apollo Realty's escrow account. The deal fell through. On November 19, 1979, Albert I. Caskill, Esquire, wrote Apollo Realty of Miami, on behalf of Mr. German: Demand is herewith made upon you for the $500 deposit being held in your escrow account in relation to the above-referenced transaction. We have been notified by the attorney for the purchasers, Lawrence M. Weiner, that his clients will not be going forward with the purchase, and, accordingly, their failure to complete the transaction pursuant to the contract constitutes a breach of the agreement. Please forward all deposit moneys to this office, same being made payable to the seller, John German. Petitioner's Exhibit No. 4. The house was off the market from June until the end of November. Mr. German never received any money on account of the transaction. (He did not even get the keys back.) Respondent never deposited any money anywhere on account of this transaction, nor did he pay Mr. German any money directly. He testified that he instructed Allen Scherer, the other principal in Karma Properties, Inc., to deposit $500 with Lawrence Weiner, Esquire; that he read Mr. Caskill's letter of November 19, 1979, and passed it on to Mr. Scherer with instructions to "correct" (T. 36) the situation; but only learned that there was no money in escrow when he received the administrative complaint with which these proceedings began. In these particulars, respondent's testimony has not been credited. The parties stipulated that Mr. Weiner would testify, under oath, that he "never held or received any money in connection with the subject transaction." Petitioner filed a proposed recommended order which has been reviewed and considered. The proposed findings of fact have been adopted in substance for the most part. Proposed findings of fact not adopted have been rejected as immaterial or as inconsistent with the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner reprimand respondent. DONE AND ENTERED this 11th day of May, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of May, 1982. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124 Street North Miami, Florida 33161 Adam Kurlander, Esquire 1820 Northeast 163 Street North Miami Beach, Florida 33162 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact While in Puerto Rico, in 1971, the Respondent was charged with violation of Article 29, Drug and Narcotics Law, which charges were brought in the Superior Court of Puerto Rico, Court of Aguadilla. These case numbers were information numbers, G-71-54 and G-71-55. These charges were made on March 9, 1971 for alleged offenses which were committed on February 16, 1971. The information which shows these case numbers can be found in Petitioner's Exhibit "D", admitted into evidence. On March 10, 1971, the Respondent was found guilty of the offenses charged in cases G-71-54 and G-71-55. The record shows that in case no. G-71-54, the Respondent was convicted by a judgement entered on March 10, 1971. On April 14, 1971, in case number G-71-54 and case number G-71-55 the Superior Court, of Puerto Rico, Court of Aguadilla, sentenced the Respondent to a term of five to eight years in prison by confinement at hard labor, which sentences were suspended. By such suspension, the Respondent was committed to the legal custody of the court until the expiration of the maximum term of the sentence under certain general conditions for the Respondent's conduct, and was given a special condition that he contact the Florida Parole and Probation Commission, District Office, at Room 180, Courthouse, Ft. Lauderdale, Florida. The judgement in case number G-71-54 and the conditions of sentence may be found in Petitioner's Exhibit "F", admitted into evidence. The judgement in case number G-71-55 may be found in Petitioner's Exhibit "E" admitted into evidence. On September 16, 1973, the Respondent completed an application for registration as a real estate salesman with the Florida Real Estate Commission, which application was completed under oath. Within that application for registration is found a question number "9". This question reads as follows: "9. Have you ever been arrested for or charged with the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgement has been reversed or set aside or not, or pardon or parole granted?" to which the Respondent replied, "yes". Question nine further stated, "if yes state details in full", to which the Respondent replied, "(see attached statement)". The attachment spoken of is found in the Petitioner's Exhibit "C", and this attachment sets forth the Respondent's explanation of his answer to the initial part of question nine. Subsequent to the completion of the form the Respondent was registered with the Florida Real Estate Commission as a real estate salesman, from February 21, 1974 through March 31, 1975. From May 8, 1975, up to, and including March 31, 1975, the Respondent has been accepted as a registrant, non-active real estate salesman.
Recommendation It is recommended that the Respondent be released from accountability under the charge found in the subject administrative complaint. DONE and ENTERED this 20th day of July, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann, III, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Charles Lawrence Ross 3789 Southwest 41st Street Hollywood, Florida 33023
The Issue Whether Respondent's real estate broker's license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Fred J. Will was a licensed real estate broker in the state of Florida having been issued license number 0142418, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida 32014. At all times material to this proceeding, Richard P. Pollock was a licensed real estate salesman in the state of Florida having been issued license number 0139861, c/o Fred J. Will, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida, with a last listed home address of Post Office Box 2085, Flagler Beach, Florida 32036. Either in late December 1987 or early January 1988, Pollock approached Will with the idea of opening a real estate office using Will's real estate broker's license wherein Pollock would run the office since Will was currently employed managing the self storage facility of Regency Health Care Centers, Inc. In late January 1988, Will filed a Request For License or Change of Status Form using license number 0142418 wherein he advised the Petitioner that he would be operating under Will Realty located at 326 1/2 South Beach Street, Daytona Beach, Florida. Upon opening the offices at 326 1/2 South Beach Street, Will opened an operating or business bank account and an escrow bank account for the Will Realty at the Commercial National Bank (Commercial) Only Will was authorized to write checks on the excrow account. There was insufficient evidence to show whether any funds were ever deposited in the business or escrow account at Commercial. Once the office and bank accounts were opened, Will left the daily operation of the office to Pollock and was at the office only a couple of times between the time it was opened in late January 1988 and when it was closed around April 23, 1988. The "agreement", as such, between Will and Pollock was a 50/50 "split" once the business "got going". Will did not receive any compensation from Pollock for the "use of his license". Will did not receive any money from Pollock in regard to Will Realty, personally or for deposit in either bank account at Commercial. The "agreement" was that Will would allow Pollock to "work under" his real estate broker's license. Will did not have any knowledge of the advertising being used by Pollock for Will Realty such as newspaper ads or business cards until just before the office closed in April 1988. Will did not have any knowledge of the forms being used by Pollock for Will Realty such as contracts or agreements for advance fee arrangements or receipts evidencing payment of such fee until just before the office closed in April 1988. Additionally, Will did not have any knowledge of the advance fee arrangement which Pollock may have had with prospective tenants as payment for securing rentals until just before the office closed in April 1988. Will did not have any knowledge of Pollock opening the bank accounts at Coast Federal Savings and Loan Association (Coast) in the name of Will Realty until just before the office closed in April 1988. None of the funds received by Pollock from prospective tenants while with Will Realty were deposited in the accounts at Commercial. Nor did any of the funds collected by Pollock from prospective tenants while he was with Will Realty go to Will personally. During the latter part of March 1988, Donna Elliott approached Pollock through Will Realty for the purpose of finding a home to rent. Pollock arranged for Edward R. Brown to show Elliott a home he had for rent. Elliott eventually rented this home and gave Pollock a check in the amount of $100.00 dated March 26, 1988 as a deposit on the home. On March 31, 1988 Elliott mailed Pollock another check in the amount of $1,000.00 as rent for the Brown home. The funds from these two checks were deposited in the account at Coast. Brown experienced some difficulty in getting Pollock to pay the deposit and rent collected from Elliott. However, once Will became aware of the situation he demanded that Pollock pay over the deposit and rent and, as a result of Will's effort Brown received $575.00 from Pollock. After paying Brown the $575.00 Pollock disappeared and Brown demanded the balance from Will since Pollock was working under Will's real estate broker's license. At first, Will agreed but later on advice of counsel declined to pay on the basis that it was not his responsibility. Brown filed suit and was awarded a judgment for the balance which Will paid. Around the middle of April 1988 Diane Smith approached Pollock for the purposes of renting a home. Smith paid Pollock an advance fee of $75.00 for service to be rendered by Pollock in securing her a rental home. However, before Pollock found a rental home for Smith he disappeared without returning Smith's fee. Within a short period after Smith paid the advance fee she went to the office of Will Realty only to find it closed and Pollock gone. There was no evidence that Smith made a demand on Will for the return of the advance fee paid to Pollock. After Will became aware of the situation he called Petitioner's Orlando office and was informed by Judy Smith that he should close the office immediately. Will followed this advice and closed the office sometime around April 23, 1988. As soon as Will began to receive complaints from Pollock's clients he got involved with Pollock and attempted to correct the problems but Pollock disappeared before Will could correct the situation. There was insufficient evidence to show that while Pollock was at Will Realty, any of his prospective tenants, other than Smith, specifically Catherine Vick, failed to receive reimbursement for any advance fee paid to Pollock where rentals were not obtained for the prospective tenant. Will was not directly involved with any of the transactions between Pollock and the prospective tenants and did not have any knowledge of these transactions until shortly before Pollock disappeared and Will Realty was closed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, Fred J. Will guilty of violating Section 475.25(1) (d) and (e), Florida Statutes, and for such violation impose an administrative fine of $500.00 and issue a reprimand. In recommending the reprimand I have taken into consideration the harshness of a suspension or revocation and feel that under the circumstances of this case that a reprimand and a fine is more appropriate. See: Webb v. Florida Real Estate Commission, 351 So.2d 71 (2 DCA Fla. 1977). It is further RECOMMENDED that Counts VI, IX and XIV of the Administrative Complaint be DISMISSED. DONE AND ENTERED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 22nd day of February, 1990. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 James H. Gillis, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Robert W. Elton, Esquire 648 S. Ridgewood Avenue Daytona Beach, Florida 32014 Fred J. Will 2281 Carmen Daytona Beach, Florida 32119
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against respondent Arnold H. Fleishman in this case. RECOMMENDED this 31 day of December, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 31st day of December, 1984.
