Findings Of Fact Florida Development and Sales Corporation (FDS) at all times here involved was a registered real estate corporate broker. Lawrence F. Taylor, at all times here involved, was a registered real estate broker and an Active Firm Member for FDS and Universal Realmark, Inc. Michael W. Levine, at all times here involved, was a registered real estate salesman for Universal Realmark, Inc., corporate broker. Florida Development and Sales was a wholly owned subsidiary of Universal Realmark, Inc. The two corporations occupied the same offices, had the same corporate officers, and used the same telephone numbers. Correspondence went out from either corporation on FDS stationery, and all employees of both corporations were paid by check drawn on FDS account. FDS entered into a non-exclusive brokerage agreement on August 2, 1971 (Exhibit 5) with Lake Lucie Estates, Inc., the owner of unimproved land it desired to sell in 1 1/4 acre tracts. Pursuant to said agreement the broker advertised and sold, generally by agreement or contract for deed and generally to out-of-state buyers, these 1 1/4 acre tracts. In 1973 Universal Realmark, Inc. acquired all of the stock of FDS and accepted the obligations of FDS under supplemental agreement dated May 23, 1973 (Exhibit 6). The brokerage agreement above referred to was undisturbed. By order dated May 6, 1974 the Commissioner of Securities, State of Missouri ordered St. Lucie Estates, Inc., and FDS, their representatives, inter alia, to cease and desist the offer and/or sale in Missouri of any agreement for deed securities. Chapter 409, Laws of Missouri, contain the Missouri Uniform Securities Act. Therein security, in 409.401(1), is defined to mean any contract or bond for the sale of any interest in real estate on deferred payments or on installment plans when such real estate is not situated in this state Section 409.201 makes it unlawful for any person to sell or offer for sale securities in Missouri without being registered to do so and Section 409.301 makes it unlawful for any person to offer or sell any security in Missouri unless: (1) The security is registered, or (2) The security or transaction is exempted under Section 409.402. Pursuant to these and other provisions of the securities law the cease and desist order was issued and served by certified mail on Lake Lucie Estates, Inc. and FDS. Section 409.410 of the Missouri Statutes provides that any person who has been personally served with a cease and desist order and thereafter willfully violates same shall, upon conviction, be fined not more than $5,000 or imprisoned not more than three year, or both. The Act further provides for personal service upon an out-of-state violator of the act by serving the commissioner who sends notice of the service to the out-of-state violator. Here the Respondents acknowledged receipt of the cease and desist order. Subsequent to the receipt of the Missouri cease and desist order Levine negotiated agreement for deeds with three purchasers in Missouri of Lake Lucie Estates, Inc. property. On one of these the purchaser's check was made payable to Lake Lucie Estates, Inc. and the checks for the other two were made payable to FDS. During his interrogation by the investigator, Levine acknowledged that he was aware of the cease and desist order at the time he negotiated the three agreements for deed. He obtained his list of people to call from the office, i.e. FDS/Universal Realmark. At the hearing Levine did not remember whether or not he was aware of the cease and desist order at the time he negotiated the Missouri contracts. He did remember receiving a commission on each sale by check drawn by FDS although he was registered as a salesman under Universal Realmark, Inc. As noted above Lake Lucie Estates had a brokerage agreement with FDS and no such agreement was ever negotiated with Universal Realmark. Lake Lucie Estates would have no objection to Universal Realmark selling its property. Respondent Taylor was the Active Firm Member of FDS and Universal Realmark. He was serving in that capacity with Universal Realmark when FDS was acquired. At the same time he operated his own real estate broker's office on Miami Beach, spending part of his time supervising the activities of each office. Taylor's initial statements to the investigator that he learned of the Missouri cease and desist order in June 1974 upon his return to the office from a stay in the hospital was repudiated at the hearing when he stated he learned of the Missouri order only a few hours before he talked to the investigator in October, 1974. Taylor also testified that he never authorized Levine to sell under his brokerage even though Taylor was the Active Firm Member of Universal Realmark and Levine was registered under the corporate broker, Universal Realmark. Taylor's main concern appeared to be to insure that the salesmen for these out-of-state land sales adhered to the script that had been prepared for them and from time to time he monitored their conversations. When he realized that the alleged violations of the real estate license law were being investigated he resigned from FDS and Universal Realmark because "they were violating my trust". When the requests for renewal of the FDS corporate broker's registration was submitted in September, 1974, Taylor signed same a Vice President of FDS and the Active Broker of the corporation.
Findings Of Fact Respondent, Janis K. Hinsch (Hinsch), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license No. 0350063. Hinsch was the vice president and sole qualifying broker of Respondent, Huntco of Marco, Inc., a Florida corporation, licensed as a real estate broker in the State of Florida, license No. 0222987. During all times material hereto Huntco was the owner of the Sea Oats Beach Club, a condominium located in Charlotte County, Florida. Huntco marketed the Sea Oats Beach Club under a time-share plan. The gravamen of the complaint in this case involves the sale of eight time-share units during the period of April 9, 1983 through August 11, 1983. The purchase agreements executed by the eight purchasers in question provided in pertinent part: 8. CLOSING AND TITLE At closing, . . . Seller shall deliver its warranty deed conveying fee title to the Unit Week(s) to Buyer under a plan of Interval Ownership as defined in the Declaration of Condominium . . . . The closing will be . . . not later than one (1) year from the date of this Agreement. Petitioner contends Hinsch and Huntco are guilty of violating Section 475.25(1)(b), Florida Statutes, because the deeds for the eight units were not delivered to the clerk of the court for recording within one year of the date the purchase agreements were executed. Petitioner's assertion is ill-founded. The deeds for each of the units in question were executed within 30 days of the date the purchase agreements were executed. The deeds, together with other pertinent documents, were delivered to a title company for closing and for issuance of an owner's title insurance policy. The title company, subsequent to closing, was to have forwarded the deed to the clerk for recording and, upon return of the recorded deed by the clerk, to have delivered the deed to the purchaser(s). However, the title company, through a clerical error, failed to deliver the deeds for these eight units to the clerk for recording. Respondent, upon receiving notice that purchasers had not received their deeds, immediately inquired of the title company to discern the reason, the error was discovered, and the deeds were promptly recorded. Admittedly, the deeds were not recorded within one year of the date the purchase agreements were executed, but the purchase agreements only required that the closing be held within one year. There is no evidence to suggest that the deeds in question were not delivered to the title company, or that these transactions were not closed, within one year of the date the purchase agreements were executed.
The Issue Whether or not the Petitioner, Barbara A. Story, is eligible to sit for the Florida Real Estate Commission's licensure examination.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, post-hearing memoranda and exhibits, and the entire record compiled herein, the following relevant facts are found. On or about July 26, 1981, Petitioner, Barbara A. Story, filed an application for licensure as a real estate salesperson with the Respondent, Department of Professional Regulation, Board of Real Estate. By letter dated September 28, 1981, Randy Schwartz, Respondent's counsel, advised Petitioner that the Respondent, at its duly noticed meeting of September 23, 1981, denied Petitioner's application for licensure. That letter recited that the specific reason for the Respondent's actions was baked on Petitioner's answer to question six (6) on the licensing application and her criminal record. In this regard, evidence reveals and Petitioner's application reflects that Petitioner was convicted in the Southern District of Florida (West Palm Beach), on September 8, 1978, of embezzlement of monies from a bank, in violation of Title XVIII, United States Code, 656. Petitioner was sentenced by the Honorable C. Clyde Atkins on that date, pursuant to the split-sentence provision of Title XVIII, United States Code, 3651, in that she was to be confined in a jail-type institution for a period of one (1) month, and thereafter, the remainder of the sentence of confinement [one (1) year] was suspended. Upon discharge from incarceration, Petitioner was to be placed on probation for a period of five (5) years under the special condition that she make restitution for the monies embezzled. Jurisdiction of that case was transferred to the Middle District of Florida, and on March 29, 1982, Petitioner was terminated from probation supervision. Robert E. Lee, a chief U.S. probation officer, who supervised petitioner while she was under the supervision of the subject office as a probationer, indicates that Petitioner reflected a favorable attitude toward her probation officer, remained gainfully employed and abided by all the rules of probation. Petitioner has never been arrested since her conviction in 1978, and has received only one (1) traffic citation during December of 1981. Petitioner has been continuously employed since her conviction and is presently a secretary/receptionist where she is in charge of and controls office business for Mobile Craft Wood Products in Ocala, Florida. Petitioner has been in charge of processing cash sales for the past four (4) years. Petitioner is presently making restitution to the savings and loan association that she embezzled. Charles Demenzes, a realtor/broker who owns Demenzes Realty Inc., has known Petitioner approximately one (1) year. Mr. Demenzes spoke highly of Petitioner and was favorably impressed with her desire to become licensed as a real estate salesperson. Mr. Demenzes is hopeful that Petitioner will be afforded an opportunity to sit for the licensure examination such that she can join his sales force, if she successfully passes the examination. Respondent takes the position that Petitioner, having been convicted of the crime of embezzlement, which involves moral turpitude and therefore is ineligible to sit for the Respondent's licensure examination. In this regard, counsel for Respondent admits that the Board, when acting upon Petitioner's application for licensure, did not consider the fact that Petitioner has been released from probation supervision inasmuch as that factor did not exist at the time Petitioner made application for licensure. Character letters offered by Petitioner were highly complimentary of Petitioner's reputation and abilities as an employee. (Petitioner's Composite Exhibit No. 1.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED: That the Respondent enter a final order granting Petitioner's application for licensure as a real estate salesperson. DONE and ENTERED this 13th day of October, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982.
The Issue Whether or not Respondent's registration as a real estate salesman should be revoked for violation of Section 475.25(2), F.S. The Hearing Officer explained to the Respondent the nature of the hearing and his rights under the Administrative Procedure Act, including the right to be represented by counsel at his own expense if he so desired. It was also explained to the Respondent that he could testify in his own behalf, that he is not required to do so, and that if he did so testify, he could be cross-examined by counsel for Petitioner. Respondent acknowledged understanding of these rights and elected not to testify in his own behalf.
Findings Of Fact 1. Counsel for Petitioner introduced into evidence Respondent's application for registration as a real estate salesman (Petitioner's Exhibit 1) and rested his case. No evidence was introduced in support of the allegation against the Respondent.
The Issue Whether Kenneth M. Olson, Jr., is guilty of the allegations alleged in the Administrative Complaint?
Findings Of Fact Kenneth M. Olson, Jr., is a registered real estate broker holding Certificate No. 0065634 issued by the Florida Real Estate Commission. Gary Ater, Pasquale DeLucia, John Ricker, Helen Pendleton, and Fred Snook were all real estate salesmen employed in the Fourth Street Office of Olson & Associates. On or about March 31, 1975, the aforesaid salesmen, to include the office manager, Fred Snook, left the employment of Kenneth M. Olson, Jr., without notice and became salesmen for Citrus Realty. Upon their leaving, only one full time real estate salesman was left in the Fourth Street Office. Kenneth M. Olson learned that the aforesaid real estate salesmen had left his employ when members of the public and other real estate salesmen and brokers called his other office advising that the phones at the Fourth Street Office were not being answered. Blodwen Clayton, a registered real estate salesman with Olson and who as a secretary-receptionist had organized the records and supplies for the Fourth Street Office, was sent to said office to determine what problems existed there. She determined that the aforementioned sales people were gone and the office closed and locked. Also office records, supplies, a cross listing directory which had just been purchased, and an electric typewriter were missing. Subsequent audit of the account of the Fourth Street Office indicated that certain payments had been made to Fred Snook which were inappropriate to include reimbursement for flowers sent clients and a party held in the month of February. A telephone bill for that office indicating a call from Havana, Cuba, had been billed to the telephone of the Fourth Street Office at a time when Fred Snook was manager and responsible for the office. As a result of the personnel loss, Olson chose to close the Fourth Street Office and dispose of the property. The events alleged in Counts 2 through 9 discussed in paragraphs 4 through 11, following, relate to events which occurred between Olson and the aforesaid sales personnel after they left Olson's employ. No evidence was presented by the Florida Real Estate Commission to substantiate its allegations contained in Count 1. The Petitioner argued that the admission by the Respondent in his Answer that the Commission paid to Joseph Boiros was paid by a check drawn on the Olson & Associates Real Estate operating account is sufficient to sustain the alleged violation that Olson did not hold Boiros' commission in a trust account and promptly account and pay the commission to Boiros. Gary Ater was a registered salesman employed by Olson who by virtue of negotiating and obtaining a contract for the sale of property between William and Eleanor Zeisler and Arthur and Simone Clinton earned a commission when this sale closed on or about April 10, 1975. Pursuant to the employment contract between Ater and Olson, the commission was due and payable twenty-four hours after closing period. On May 1, 1975, Gary Ater demanded payment by registered mail from Kenneth M. Olson, Jr. Ater received payment of the commission in December, 1975, after having obtained a judgment in Small Claims Court which was satisfied by Olson prior to being recorded. Pasquale DeLucia, a registered salesman employed by Olson, negotiated and obtained a deposit receipt contract for the purchase and sale of real property between Sherwood and Annie Clrk and Wayne and Theresa Costin on or about February 7, 1975. Upon the closing of said sale on or about March 31, 1975, DeLucia earned a commission due and payable within twenty-four hours under the employment contract between DeLucia and Olson. On or about May 1, 1975, DeLucia demanded payment from Olson by registered mail of said commission. DeLucia subsequently sued Olson in Small Claims Court and obtained a judgment which was satisfied by Olson prior to the judgment being recorded. On or about March 11, 1975, DeLucia negotiated and obtained a deposit receipt contract for the sale of property between Norman and Sally Hassan and Elsworth and Dora Crispin. Said transaction closed on or about June 30, 1975, whereupon DeLucia earned a commission. On or about June 23, 1975, DeLucia demanded payment of the commission. DeLucia subsequently sued Olson for the amount of commission due and received judgment in Small Claims Court which Olson paid prior to the recording of the judgment. Fred Snook was a registered real estate salesman and manager of Olson's office referred to as the "Fourth Street Office." In his capacity as a salesman, Snook obtained a listing for the sale of real property upon which David H. Gibson, a registered real estate salesman employed by Olson, negotiated a contract for sale and purchase between Hinsdale W. Woman's Clinic Profit Sharing Fund and Norman and Celia Savoy on or about July 16, 1973. This transaction closed on or about August 31, 1973, whereupon a real estate commission in the amount of $6,000.00 was paid at closing with an additional $12,000.00 in real estate commission being paid in monthly installments to Olson. From the $12,000.00, Snook was to be paid $45.00 per month until his commission was paid in full. Said payments were made until March, 1975, at which time Snook received no further payments. John J. Ricker, employed by Olson as a registered real estate salesman, obtained a listing on real property owned by Arthur and Simone Clinton. This property was subsequently sold by Gary A. Ater, who is also employed by Olson as a registered real estate salesman. By virtue of having obtained a listing, John J. Ricker was entitled to a commission upon closing of the transaction, which occurred on or about April 10, 1975. Said commission was not paid Ricker until September, 1975, when the amount of the commission was paid as settlement of of an action pending between Ricker and Olson. Helen D. Pendleton, who is employed as a registered real estate salesman by Olson, negotiated and obtained a deposit receipt contract for the purchase and sale of real property between Byron Salvin and John and Iva Blake. Said transaction closed on or about May 20, 1975, whereupon Pendleton earned a commission under her employment contract with Olson. Pendleton subsequently requested payment from Olson but was not paid. She thereafter instituted suit in Small Claims Court and obtained a judgment against Olson, which at the time of hearing had not been satisfied. Helen Pendleton also negotiated a real estate purchase agreement between Albert and Bonnie Older and Otto and Eleanor Rodeck. Said transaction closed on or about May 12, 1975, at which time the commission was earned by Pendleton pursuant to her employment agreement with Olson. Pendleton subsequently made demand for said commission. When she did not receive her commission, she instituted suit in Small Claims Court and obtained a judgment against Olson, which at the time of hearing had not bee satisfied. Further, Pendleton negotiated a deposit receipt contract for the purchase and sale of real property between Diane Hammond and Marjorie McCauly on or about March 8, 1975. This transaction closed on or about May 23, 1975, whereupon Pendleton earned a commission, which she did not receive after having made demand for payment on Olson. She sued and obtained judgment for this commission, said judgment not yet having been satisfied as of the date of hearing. On or about February 25, 1975, Helen D. Pendleton entered into an apprenticeship with Kenneth M. Olson, Jr. As a condition precedent to undertaking to be Pendleton's apprenticing broker, Olson required that Pendleton and he execute a noncompetition agreement. The Florida Real Estate Commission presented no evidence with regard to the allegations of Count 11. The Petitioner argued that the Respondent, Olson, had admitted the allegations contained in paragraphs 1, 2, 3, and 4 of Count 11 in his Answer, and that based upon those admissions Olson had violated the provisions of Rule 21V-14.06, Florida Administrative Code, and therefore was in violation of Section 475.25(1)(d), F.S. Donald A. Ehmig was employed as a registered real estate salesman by Olson. In that capacity Ehmig negotiated real estate transactions between Flannagan and Myers, Mendenhall Tsolaks and Caraway and Dickmen. These transactions were closed on January 22, January 15, and April 1, 1975, whereupon Ehmig earned a commission on each transaction pursuant to his employment agreement with Olson. Evidence was received that indicates that Olson, as co- signer of a note with Ehmig, had paid $1,172.36 of a deficiency judgment on December 5, 1974. See Exhibit 29, check to St. Pete Sports Car Center in the amount of $1,172.36 on the account of Olson & Associates. Ehmig candidly admitted that it was his intent that Olson, as co-signer, incur the financial loss upon his (Ehmig's) default of the note. The amount of monies owed Ehmig by Olson and the amount of monies owed Olson by Ehmig were approximately the same. No evidence was presented that Kenneth M. Olson, Jr., knew or had any reason to know that Allain Rimar had tendered an earnest money deposit in the amount of $500.00 on the purchase of certain real property negotiated through his saleswoman, Susan Lee Stuart. Stuart's testimony was that Jack Fulmer was the broker involved in the transaction and that to her knowledge, Olson had no knowledge of the earnest money deposit. Fulmer, who was originally charged in the Complaint, has died since issuance of the Complaint, and the charges against Fulmer and Susan Lee Stuart were dropped by the Florida Real Estate Commission.
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer would recommend that the Florida Real Estate Commission order Kenneth M. Olson, Jr., be directed to pay the judgment(s) obtained by Helen Pendleton, or face suspension for 30 days, and further that Olson receive a letter of official reprimand. DONE AND ORDERED this 16th day of March, 1977, in Tallahassee, Florida. Stephen F. Dean Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Seymour A. Gordon, Esquire 153 Central Avenue Post Office Box 265 St. Petersburg, Florida 33731 =================================================================
The Issue Whether respondent's real estate broker's license should be revoked or otherwise disciplined on the grounds: (1) that he operated as a real estate broker without holding a valid and current license, and (2) that he is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction. Background By administrative complaint dated October 30, 1981, petitioner Department of Professional Regulation, Florida Real Estate Commission 1/ ("Department"), charged respondent William A. Canty ("respondent") with six violations of the Florida Real Estate Law, Chapter 475, Florida Statutes (1979). Respondent disputed the charges and requested a Section 120.57(1) proceeding. On November 30, 1981, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for April 23, 1982. At hearing, the Department voluntarily dismissed Count Nos. Three through Six, inclusive, leaving only Count Nos. One and Two. Count One alleges that respondent's broker's license expired; that he then negotiated a real estate transaction in violation of Sections 475.42(1)(a) and 475.25(1)(a), Florida Statutes (1979). Count Two alleges that in connection with this real estate transaction, respondent signed a sales contract incorrectly acknowledging receipt of a $5,000 earnest money deposit, when, in fact, he had received a demand note; that the seller was led to believe that he held a $5,000 earnest money deposit in escrow; that such actions constituted misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction, all in violation of Section 475.25(1)(b), Florida Statutes (1979). The Department called Robert S. Harrell and Alfred C. Harvey as its witnesses, and offered Petitioner's Exhibit Nos. 1 through 3 into evidence, each of which was received. Respondent testified in his own behalf and Respondent's Exhibit 2/ No. 1 was received in evidence. The transcript of hearing was received on April 27, 1982. Neither party has filed proposed findings of fact and conclusions of law. Based on the evidence presented at hearing, the following facts are determined:
Findings Of Fact As to Count One Respondent is a licensed Florida real estate broker. He holds license No. 0012715 and his business address is 988 Woodcock Road, Orlando, Florida. (Testimony of Canty; P-1.) Since obtaining his broker's license in the early 1970s, respondent has earned a livelihood as a real estate broker. He has been a sole practitioner, having never employed any other person in connection with his practice. (Testimony of Canty.) A real estate broker's license must be renewed every two years. Effective April 1, 1978, respondent paid the requisite fee and renewed his then existing broker's license the new expiration date was March 31, 1980. (P-1.) On March 31, 1980, respondent's broker's license expired for failure to renew. His failure to timely renew was due to simple inadvertence; he admits that it was an oversight on his part. (Testimony of Canty; P-1.) As soon as he realized his omission, he filed a renewal application and paid the requisite $40 fee in addition to a $15 late fee. His license renewal became effective on July 25, 1980. (Testimony of Canty; P-1.) In May, 1980, respondent negotiated, prepared, and assisted in the execution of a written contract for the sale and purchase of 1.6 acres, including a 21,000 square-foot warehouse, located at 315 West Grant Street, Orlando, Florida. The seller was Alfred Harvey, the buyer was Preferred Services, Inc., and the purchase price was $208,000. The contract called for the buyer to pay the sales commission under separate agreement with respondent. The commission agreement never materialized since the sales transaction failed to close. But, the buyer understood that he had an obligation to pay a real estate commission, and respondent fully expected to receive one. (Testimony of Canty, Harrell.) As to Count Two Prior to the parties' execution of the sales agreement mentioned above, respondent and the buyer, Robert Harrell, of Preferred Services, Inc., discussed with Alfred Harvey, the seller, the acceptability of using a demand note as the $5,000 earnest money deposit required by the agreement. (The buyer wished to avoid tying up his funds in escrow during the extensive time required to obtain Small Business Administration approval for assuming the existing mortgage loan.) The seller agreed to the depositing of a $5,000 demand note. 3/ (Testimony of Canty, Harrell.) When the sales contract was executed by the parties, respondent acknowledged on page 2 that he held the specified earnest money deposit in escrow. The deposit was a $5,000 demand note. He did not indicate on the face of the contract that the deposit was in the form of a demand note. But, neither did he indicate that the deposit was in cash or check form. Respondent acknowledges that he was "sloppy" in failing to indicate on the contract that the deposit was a demand note. (Testimony of Canty.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be found guilty of violating Sections 475.42(1) and 475.25(1)(a), F.S., and reprimanded. DONE AND RECOMMENDED this 19th day of May, 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 19th day of May, 1982.
The Issue Whether Respondent is guilty of obtaining a license by means of fraud, misrepresentation or concealment, in violation of Section 475.25(1)(m), Florida Statutes (1995).
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is and was at all times material to this proceeding a licensed Florida Real Estate Salesperson. He was issued licensed number 0625149 in accordance with Chapter 475, Florida Statutes. His license is currently inactive. On or about April 6, 1995, Respondent submitted an application for licensure as a Real Estate Salesperson. Question number 9 on the application read as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of any other state, you are responsible for verifying the expungement or sealing prior to answering "NO". If you answered "Yes," attach details including dates and outcome, including sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records, Failure to answer this question accurately could cause denial of licensure. If you do not understand the question, consult with an attorney or the Division of Real Estate. Respondent marked the "NO" box beside question number 9. Respondent then signed the "Affidavit of Applicant" which read above his signature: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and recollection permit, without any evasions or mental reservations whatsoever, that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. On or about July 6, 1989, Respondent, going by the name of Pablo Alfaro, pled no contest to misdemeanor "joyriding" in Case No. 93CM04225, in Santa Ana, California. Respondent admitted to pleading no contest to a "joyriding” charge. By letter dated August 27, 1997, addressed to Petitioner, Respondent's employer at the time, John Maizie, Executive Sales Director of Cypress Pointe Resort, wrote that Respondent was an ethical and valued employee.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's license should be revoked. DONE AND ENTERED this 3rd day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 3rd day of November, 1998. COPIES FURNISHED: Laura McCarthy, Chief Deputy Attorney Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801-1772 Juan Bonitto 2851 Runyon Circle Orlando, Florida 32837-5214 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, Florida Statutes, as set forth in Administrative Complaint, dated December 4, 1981. This proceeding involves allegations by the Florida Board of Real Estate (now Florida Real Estate Commission) that Respondent, James R. Siebert, violated Subsection 475.25(1)(h) Florida Statutes, by sharing a commission with a person not properly licensed under the real estate law, and that he employed a person as a salesman who is not the holder of a valid license, in violation of Subsection 475.42(1)(c) , Florida Statutes, and therefore in violation of Subsection 475.25(1)(a), Florida Statutes. The incident which prompted the Administrative Complaint involved an auction sale of a restaurant in Brooksville, Florida which was conducted by an auctioneer who did not have a license to practice real estate in Florida. Respondent requested an administrative hearing and filed an answer to the Administrative Complaint admitting the occurrence of the auction, but denying that it involved the sale of real estate.
Findings Of Fact Respondent, James L. Siebert, is a licensed real estate broker at Orange Lake, Florida, and was so licensed at all times relevant in this proceeding. (Stipulation) On several occasions prior to February 21, 1981, Respondent had gratuitously assisted Albert W. (Billy) Mitchell, an auctioneer, in conducting auctions by serving as a "ring man" and clerk. A "ring man" normally is one of several such individuals at an auction who assists the auctioneer by encouraging bidding and identifying bidders. Mitchell is not licensed under real estate laws of Florida, but operates under a local occupation license. None of the prior auctions in which Respondent assisted Mitchell involved the sale of real estate. (Testimony of Respondent, Mitchell) On January 28, 1981, Mitchell entered into an "auction sale contract" with Welberta Pruitt whereby Mitchell agreed to sell at auction to the highest and best bidder: . . . the following described business and personal property owned by the Party of the First Part: Pruitts Golden Wagon Steak House Restaurant and Contents on attached inventory list and located 1702 Howell Avenue, Brooksville, in Hernando County, State of Florida. The terms of this sale shall be 10 percent of the amount of the purchase price to be paid on day of sale and the balance to be paid as follows: On delivery of title - There is a mortgage on the business of $67,838.20 with interest at 8 3/4 percent on the unpaid balance. The attachment to the contract listed various items of food supplies and restaurant furniture and equipment, plus decorative items of personal property. Pruitt and her husband had purchased the real property on which the restaurant building was located under an agreement for deed in 1979 which provided that the Pruitts would make the payments on a mortgage of about $67,000 from the sellers to the First Federal Savings and Loan Association of Citrus County and, when such mortgage was paid in full, the sellers would convey title to the property by warranty deed. The contract reflected that the total purchase price of the property was $75,000, and that a down payment had been made in the sum of $7,000. Mrs. Pruitt owned furniture, fixtures and equipment which she transported from Tennessee to operate a restaurant on the premises. (Testimony of W. Pruit Kelly, Mitchell, Johnston, Respondent's Exhibits 1,2) It was the understanding of the parties to the auction agreement that only the personal property in and around the restaurant building would be sold to the highest bidder, and it was anticipated that the successful bidder would take up the mortgage payments on the real property. The equity which the Pruitts had acquired by prior mortgage payments was to be "given" to whoever purchased the "business" at the auction. Accordingly, on February 20, 1981, the day preceding the auction, Mrs. Pruitt issued a "notice" that she would sell her "entire Restaurant, business, furnishings, equipment, and Inventory at Public Auction". The notice further stated that she would give her equity in the real estate to the purchaser on which there was an existing mortgage of $67,821.36 "that you may assume". The noticewas placed on the door of the restaurant. In addition, Mitchell issued a brochure advertising the auction wherein it was stated that the "entire business, furnishings, equipment, and stock" would he sold at absolute auction and that the purchaser would have the "privilege of assuming the payments on the existing mortgage." Mitchell had Respondent's name placed at the bottom of the brochure without Respondent's knowledge because he thought it would be a good advertisement for him. (Testimony of Mitchell, W. Pruitt, Petitioner's Exhibit 3, Respondent's Exhibit 3) Mitchell asked Respondent to assist at the Pruitt auction and told him that since Mrs. Pruitt and her attorney were having a disagreement, it might be necessary for Respondent to write the contract resulting from the auction. No fee for Respondent's services was discussed prior to the auction. (Testimony of Mitchell, Respondent) On February 21, 1981, the auction was conducted at the restaurant in Brooksville, and Respondent was present to act as a "ring man". There were only about 3 individuals who entered bids at the auction. Prior to receiving bids, Mitchell announced that he was auctioning the contents of the business and that whoever bought the property would take over the payments on the mortgage. The successful bidder was Robert Shrader, who bid $9,600. He made a 20 percent down payment at the time in the amount of $1,920 which Mitchell retained as a commission on the sale. Mitchell had not described the real estate at the auction, but merely stated that he was auctioning the business and that Mrs. Pruitt would give the successful bidder her equity in the property. After accepting Schrader's bid, Mitchell gave the figures on the sale to Respondent who prepared a standard contract for sale and purchase of the real estate in the total amount of $77,421.36. The contract reflected a deposit of $1,920 to be held in escrow by Billy Mitchell and Associates, that the contract was subject to assumption of a mortgage of $67,821.36, and that there would be a balance of $7,680. Shrader and Mrs. Pruitt signed the agreement on February 21, 1981, which was witnessed by Mitchell and Respondent. Although no brokerage fee was listed, Respondent signed as broker on the contract. He testified at the hearing that he had done this out of habit. A real estate contract was prepared rather than merely a bill of sale of the personal property in order that the parties would have the figures they needed to close which they could take to the closing attorneys. After the auction, Mitchell gave Respondent $200 as a gift for his gasoline and other expenses on the Pruitt and prior auctions. Respondent testified, and Mitchell confirmed, that the latter insisted that he accept that amount as reimbursement for expenses. (Testimony of Mitchell, Respondent, Petitioner's Exhibit 1) On April 6, 1981, Joseph P. Johnston, an attorney in Brooksville, closed the transaction by means of a bill of sale for the furnishings and equipment in Pruitts restaurant, and assignment of the Pruitt interest in the mortgaged real property. The closing statement reflected that a "broker's commission" in the amount of $1,920 was held by the "broker" to apply on commission, In actuality, the sum retained by Mitchell as a commission was based solely upon a percentage of the personal property sold at auction. (Testimony of Johnston, Mitchell, Petitioner's Exhibit 2)
Recommendation That the Florida Real Estate Commission dismiss the charges against Respondent, James R. Siebert. DONE and ENTERED this 3d day of June, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 3d day of June, 1982 COPIES FURNISHED: Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harvey R. Klein, Esquire Klein & Klein 333 North West 3rd Avenue Ocala, Florida 32670 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact At all relevant times, the respondents Russell T. Gorgone and Russ Gorgone, Inc., were registered Florida real estate brokers. On July 11, 1972, an exclusive listing agreement was entered into between Russ Gorgone, Inc., as broker, and Jack Vollhoffer, as owner of the subject property, for the purpose of securing a purchaser for Vollhoffer's duplex located at 4252 and 4254 Armeda Avenue, Ft. Myers. The terms of this agreement included that the buyer would arrange financing, that the property was to be sold for $27,500.00 if conventional financing were used or for $29,500.00 if VA or FHA financing were used; and that Vollhoffer would pay Russ Gorgone, Inc. a fee of six percent of the sales price if a purchaser were procured. (Exhibit 1) Russ Gorgone, Inc. procured a purchaser for the subject property - one Chester Lee Phillips. Russ Gorgone, Inc. prepared a deposit receipt on August 3, 1972, showing a purchase price of $29,100.00, closing costs to be paid by the seller, Mr. Vollhoffer. (Exhibit 3) At first, Mr. Vollhoffer would not accept this offer because he wanted to receive $25,500.00 as his net-net-net proceeds of the sale. Mr. Russell T. Gorgone went to Lee County Title Company and asked for an estimate of the closing costs and was assured by said title company that they would not exceed $3,600.00. He thus made the determination that the property could be purchased for $29,100.00 and Vollhoffer would still receive $25,500.00 as net-net-net proceeds from the sale. On August 4, 1972, Russell T. Gorgone wrote the Vollhoffers a letter on Russ Gorgone, Inc. stationary, stating the offer of $29,100.00, requesting the Vollhoffers to accept it with the agreement that they would receive a total of $25,500.00 as the net-net-net proceeds as the result of the sale. It was further stated that Gorgone's sales fee and other closing expenses would be absorbed out of the $3,600.00 difference between the purchase price and the proceeds to the Vollhoffers. Mr. Vollhoffer accepted the offer of Mr. Phillips, on the basis of this August 4, 1972, letter. (Exhibit 2) Based upon Russell T. Gorgone's conversations with a Mr. Cohen of the Lee County Title Company, he (Mr. Gorgone) did not believe that the closing costs would exceed $3,600.00 and believed, in fact, that they would be less than that amount. He fully intended, at the time of executing the August 4th letter, that the Vollhoffers would receive $25,500.00 as a result of the sale. At the time of the closing on September 8, 1972, there was much discussion, primarily between Gorgone and the title agent, Cohen, regarding the closing statement. (Exhibits 4 and A) Mr. Gorgone testified that he was upset with Cohen over some of the figures charged to Vollhoffer and that he (Gorgone) still intended and felt that Vollhoffer should receive net-net-net proceeds of $25,500.00. He further stated that Cohen explained the changes in the closing costs to Vollhoffer. Vollhoffer testified that nobody explained the discrepancies to him and that he did not pay much attention to these discussions because it was not his business what the closing costs were and he was not concerned with them. His only concern was receiving his $25,500.00. While Vollhoffer testified that Gorgone did not tell him he did not have to close at the price discussed, he stated that he understood that he did not have to sell. Mr. Gorgone testified that he gave Vollhoffer the option of not signing the contract. Vollhoffer did sign the closing statement, which gave him net-net-net proceeds of $24,943.49. Mr. Vollhoffer testified that he signed because Mr. Gorgone had become hostile with him and because Gorgone had other property to sell for him and he therefore did not wish to antagonize him. Mr. Gorgone testified that he did not become hostile or abusive toward Vollhoffer at the closing and Mr. Phillips, the purchaser, testified that he did not observe Gorgone becoming hostile toward anyone. Phillips also testified that Vollhoffer did not, at the time of the closing, appear to be unhappy with the transaction. Some time after the closing, Mr. Vollhoffer made demand upon Mr. Gorgone for the difference between $25,500.00 and $24,943.49. Mr. Gorgone denied owing Vollhoffer anything.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the information against the respondents be dismissed. Respectfully submitted and entered this 7th day of November, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick W. Jones, Esquire 299 Lee Road Winter Park, Florida 32789 Allan M. Parvey, Esquire GOLDBERG, RUBINSTEIN & BUCKLEY, P.A. Post Office Box 2366 Fort Myers, Florida 33902 ===============================================================
