The Issue The issues in this case are as follow: Did Respondent violate Section 475.25(1)(b), Florida Statutes, by representing to Laverne Hahn that he would rent his house to her if she sold her house, representing to Ms. Hahn that he would deliver certain papers to her attorney, and representing to Ms. Hahn that the closing on her house would not occur until after February 15, 1981? Did Respondent violate Section 475.25(1)(d), Florida Statutes, by failing to deliver survey, abstract and title insurance policy documents to Ms. Hahn or her attorney?
Findings Of Fact At all times relevant hereto, the Respondent, Allan R. Heuton, held real estate salesman license #0313305 Assued by the Board of Real Estate (now Florida Real Estate Commission). At all times relevant hereto, Respondent was registered as a salesman with Hugh Anderson Real Estate, Inc., at 2631 East Oakland Park Boulevard, Fort Lauderdale, Florida 33339. Respondent listed with his employer, Hugh Anderson Real Estate, Inc., Laverne Hahn's offer to sell her residence and advised Ms. Hahn at that time that upon the sale of her residence she could rent his residence for a period of six months at the rate of $300 per month. In reliance on Respondent's statement, Ms. Hahn proceeded to sell her residence and made no other arrangements for a place to live, expecting to move into Respondent's house upon closing as per their agreement. (Petitioner's Exhibit 2, Pages 5 and 8.) Respondent testified to the events surrounding the transaction which gave rise to the Administrative Complaint. The Board presented the deposition of Ms. Hahn taken in Lakeland, Florida. Respondent admitted that he had advised Ms. Hahn it was not unusual to have closings delayed 60 days, and did offer and stood ready to rent his house to Ms. Hahn. Respondent testified that he did not recall picking up any documents from Ms. Hahn, but that had he done so it was his normal business practice to immediately deliver the documents to the attorney handling the closing. Ms. Hahn's deposition reflects that she could not locate the Respondent although she attempted to contact him through his broker's office. This was the reason she could not rent his house. Respondent testified that Ms. Hahn never asked to rent his house. Respondent testified that on January 14, 1981, the day after his birthday, he was suddenly taken ill and had to have emergency surgery in the early morning hours of that day. Respondent's testimony was corroborated by the testimony of Sheilah Kirk, who testified that she visited Respondent in the hospital on January 14 or 15, 1981, and that he was recovering from surgery at that time. Respondent testified that he was hospitalized for more than one week. Respondent testified that he was visited by the manager of the brokerage office for which he worked. It is hardly credible that Ms. Hahn could not find a man who was sick in a hospital for more than one week and whose whereabouts were known to his brokerage office. Wherefore, the Hearing Officer disregards the deponent's testimony and accepts the Respondent's testimony as the more credible concerning the rental of his house Ms. Hahn's deposition reflects that Respondent told her she would not have to move out until February of 1981. Respondent admits he told Ms. Hahn that closings were frequently delayed 60 days or more. The contract for sale originally provided for closing on December 29, 1980, a time which was changed to January 15, 1981, by persons unknown on a date unknown. The contract was signed by Ms. Hahn, who is presumed to have known its terms. Notwithstanding Respondent's statements as to delayed closings, Ms. Hahn had no basis for using such statement as a basis for planning in light of the contract which she signed. Again, Respondent's testimony is deemed to be more credible in light of the closing date provided in the contract for sale. A further conflict exists between Ms. Hahn's deposition and Respondent's testimony regarding the allegation that Respondent picked up certain documents from her but failed to deliver them. Respondent's statement that he had no recollection of the events, but that his regular practice was to deliver such documents immediately, and that since the time in question he has not discovered any such documents in his papers, is deemed credible.
Recommendation Having found that the allegations against the Respondent, Allan R. Heuton, were not proven, it is recommended that the Administrative Complaint against Respondent be dismissed. DONE and ORDERED this 22nd day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1982. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Allan R. Heuton 6891 Forrest Street Hollywood, Florida 33024 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Victor Jesus Monzon (Respondent) committed the violations alleged in the subject Administrative Complaint, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been a state certified residential real estate appraiser, having been issued license RD-4245 on January 3, 2004. Respondent's licensure has not been previously disciplined by Petitioner. Respondent's business is named Heartland Appraisal Group, Inc. Respondent is subject to the regulatory jurisdiction of the Florida Real Estate Appraisal Board (Board) by operation of chapters 455 and 475, Florida Statutes (2010). Petitioner has jurisdiction over disciplinary proceedings for the Board. Petitioner is authorized to prosecute administrative complaints by operation of chapters 455 and 475, Florida Statutes. On April 23, 2007, Respondent developed the Report on the Subject Property, which is a condominium unit located in a condominium complex known as the Jade Residences. Respondent prepared the Report for his client, Infinity Mortgage (Infinity). The Administrative Complaint was prepared in response to a complaint from J. P. Morgan Chase, also known as Chase Home Finance (Chase). No representative of Infinity or Chase testified at the formal hearing, so no finding has been made as to how Chase came to possess or utilize the Report. There is also no finding made as to whether Infinity or Chase was misled by any iteration of the Report. Respondent's work file contains a copy of a contract between "John Michael Pla" as seller and "Jeannette H. Lee Declaration of Trust Dated 9/25/98" as purchaser for the sale of the Subject Property in the amount of $1,307,500 (the contract price). In addition to the iteration of the Report that Petitioner received from Chase, Petitioner introduced four iterations of the Report as part of its Exhibit 1 that were copied from Respondent's work file. What was thought to be a fifth iteration obtained from Respondent's work file was also part of Petitioner's Exhibit 1, but it was later determined to be a duplicate of one of the other iterations. For ease of reference, the five iterations will be referred to by the letter I followed by a hyphen and its assigned number. Pages 18-40 of Petitioner's Exhibit 1 constitute the iteration of the Report Petitioner's investigator obtained from Chase (I-1). Respondent's work file did not have a copy of I-1. Page 20 of I-1 contains a photocopy of Respondent's handwritten notation: "Original 1." The handwritten notation does not appear on any of the other iterations. Pages 211-234 of Petitioner's Exhibit 1 constitute I- 2., pages 236-259 constitute I-3, pages 261-284 constitute I-4, and pages 311-335 constitute I-5. All five iterations of the Report were signed by Respondent. I-1 was signed April 24, 2007; I-2, I-4, and I-5 were signed on April 25, 2007; and I-3 was signed on July 25, 2007. All five iterations were effective as of April 23, 2007. All five iterations of the Report valued the Subject Property at $1,400,000. There was no evidence that the Report overstated the value of the Subject Property. There are two separate pages for I-1 marked "page one." On the I-1 page one with the handwritten notation, the name of the borrower is Jeannette Lee and the name of the owner of public record is John Pla. This same information is found on the page ones of I-2 and I-3. On the page one of I-1 without the handwritten notation, the name of the borrower is "LEE," and the name of the owner of record is "Wells Fargo Bank NA" (Wells Fargo). On the page one of I-4 and I-5, the name of the owner of record is Wells Fargo and the name of the borrower is Jeannette Lee. The contract price listed on all iterations except I-1 is $1,307,500. On both pages marked "one" on I-1, the contract price is listed as being $1,307,500 in one place and $1,370,500 in another place. In the "Comparable Sale" section of the reports, the unit number for comparable sale 3 is not listed for I-1 or I-5. The unit number for comparable sale 3 is listed for the other iterations. Also in the Comparable Sale section of the reports, I- 1 reflects the contract price for the subject property as being $1,370,500. In the same place on the other iterations, the contracted sales price is listed as being $1,307,500. Stating the contracted sales price for the subject property at $63,000 more than the actual contracted sales price was a mistake. There was insufficient evidence to establish that it was a deliberate mistake. There is nothing in the record to suggest that the mistake was anything other than a typographical error that Respondent subsequently caught and corrected. Petitioner failed to prove that the error had any effect on the appraised value Respondent put on the subject property. FARES is a software program which stands for "First American Real Estate Solutions." It is acceptable practice for an appraiser to use FARES in determining the ownership of property. Utilizing FARES, Respondent determined that the owner of the subject property was Wells Fargo. A Multiple Listing Service (MLS) entry reflected an unknown closed sale of the subject property with a sales price of $1,133,000. Respondent advised Infinity of the conflict, and he advised that he was using FARES instead of the MLS listing because he believed that FARES was more reliable. The copy of the sales contract in Respondent's work file reflected that the seller was JJohn (sic) Michael Pla. On March 8, 2007, Wells Fargo deeded the subject property to John Pla. This deed was recorded on April 14, 2007. The FARES search done by Respondent did not reveal the deed. The likely explanation for that failure is the delay in indexing public records in Dade County. After Respondent was able to verify this sale, he changed the name of the owner of the subject property on his Report and reflected the date of sale and the sales price of $1,133,000. I-1 and I-5 do not reflect a sale of the Subject Property in September 2004 for the amount of $860,000. Petitioner's expert agreed that that failure had no effect on the appraised value of the Subject Property in April 2007. I-2 and I-3 reflect that Pla was the owner and they reflected the $860,000 sale of the Subject Property in September 2004 and the sale of the property to Pla in 2007. On July 5, 2007, Infinity requested that Respondent change the name of the owner from Wells Fargo to Pla and provided Respondent with a copy of the deed from Wells Fargo to Pla. I-3, signed by Respondent on July 5, 2005, was prepared in response to that request. The record is unclear how I-2, signed on April 25, 2007, had that updated information. After I-3 was issued, the owner of record, the amount of the contract, and the sales history of the property were correctly stated. Respondent used four comparable sales in determining the value of the subject property. Respondent used a computer program to search for comparable sales that were similar in square footage, distance from the subject property, and time of sale. The use of the computer program and the parameters he used in selecting the comparable sales were reasonable. Petitioner asserted that Respondent erred in using comparable sale 1 because the use of that comparable inflated the price of the subject property. There was insufficient evidence to establish that comparable sale 1 was a fraudulent transaction or that Respondent erroneously relied on comparable sale 1 in determining the value of the subject property. Comparable sale 1 was another unit in the Jades Residences condominium complex that was on a higher floor than the Subject Property. Respondent made an adjustment to the sales price for comparable sale 1 to reflect the differences between the two units. There was insufficient evidence to establish that the adjustment was inappropriate. Further, Respondent used a weighted average which gave less consideration to comparable sale 1 than to the other comparables used. Respondent testified, credibly, that he sent two iterations of the Report to Infinity. The first report listed Wells Fargo as the owner and did not list the September 2004 sale of the property or the sale of the property to Pla in March 2007. That appears to be I-5, which was signed April 25, 2007. The other iteration was I-3, which was signed July 5, 2007. Petitioner's expert agreed that it was reasonable for Respondent to amend his Report in July 2007 after he learned of the September 2004 sale and after he verified the sale from Wells Fargo to Pla. The Jade Residences condominium complex became notorious for mortgage fraud in the latter part of 2007. There was no evidence that Respondent was aware of that mortgage fraud when he prepared his original Report in April 2007 or when he amended his original Report in July 2007. Respondent signed the Report which included the following representation: I performed this appraisal in accordance with the requirements of the Uniform Standard of Professional Appraisal Practice that were accepted and promulgated by the Appraisal Standards Board of the Appraisal Foundation and that were in place at the time this appraisal report was prepared. Appraisers are not required by state law to comply with USPAP standards, but it is the industry practice to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order finding Respondent not guilty of the violations alleged in the Administrative Complaint. DONE AND ENTERED this 7th day of June, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 7th day of June, 2011. COPIES FURNISHED: Thomas W. O'Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donna Christine Lindamood, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757 Daniel Villazon, Esquire Daniel Villazon, P.A. 1420 Celebration Boulevard, Suite 200 Celebration, Florida 34747
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
The Issue Whether Respondent's license should be revoked as set forth in the Notice of Intent to Revoke License.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating yacht salesmen and brokers. Such authority includes the discipline of yacht salesman as set forth in Chapter 326, Florida Statutes. At all times material to the allegations of this case, Respondent has been licensed as a yacht salesman in the State of Florida. Respondent first applied for licensure in June of 1994. This license request was granted and Respondent was issued a license for the two-year period 1994-1996. In June of 1996, Respondent applied to renew the license. This license request was also granted and Respondent was issued a yacht salesman's license for the period 1996-1998. On or about April 28, 1997, Respondent was convicted of conspiracy to commit wire fraud, a federal violation, and a felony. As a result, Respondent was sentenced and incarcerated. In July of 1998, Respondent applied to the Department to renew the yacht salesman's license. Based upon the information submitted to Petitioner at the time he sought renewal, the Department had no direct information of the felony conviction. In telephone conversations with the Department staff, Respondent did not disclose he had been incarcerated, was living in a halfway house as part of his sentence, and was a convicted felon. In August of 1998, a third party advised the Department that Respondent had the felony conviction. Thereafter, upon such notice, Petitioner took action to seek revocation of Respondent's license. The license renewal for 1998 filed by Respondent was executed on July 7, 1998. Technically, his license expired on June 14, 1998, but he was afforded a grace period within which to process the renewal. To this end the Department attempted to accommodate the renewal applicant. On the license renewal card Respondent submitted conflicting answers. To question (3) which read: Have you been convicted of a crime, found guilty, or entered a plea of nolo contendere, since initial licensure? Respondent answered "Y." To question (4) which read: Has any judgment or decree of a court been entered against you or is there now pending any case in this or any other state, in which you were charged with any fraudulent or dishonest dealing? Respondent answered "N." An undated letter from Respondent accompanied the renewal card which referred to a prior correspondence with the Department of June 6, 1996, as the explanation for question (4). As to question (3), the letter stated: "a conviction was made on 4/28/98 in the U.S. District Court Southern Florida." Respondent's answer to question (4) was false. Moreover, the manner in which Respondent answered the two questions did not disclose that Respondent had been convicted of a felony or conspiracy to commit wire fraud. More telling of Respondent's attempt to mislead the Department, however, is his failure to disclose any of the foregoing circumstances during telephone conversations with staff seeking to assist him to renew the license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order revoking Respondent's license. DONE AND ENTERED this 29th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1999. COPIES FURNISHED: Philip Nowick, Director Florida Land Sales, Condos, Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Scott K. Edmonds, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Tracy J. Sumner, Esquire Tracy J. Sumner, P.A. 1330 Thomasville Road Tallahassee, Florida 32303
Findings Of Fact Respondent, Ralph B. Snyder, Jr. ("Respondent"), is a licensed broker having been issued license No. 0082998. At all times material hereto, Respondent was the qualifying broker for Home Hunters V, Inc., at 2829 Okeechobee Boulevard, West Palm Beach, Florida. At all times material hereto, Respondent had employed Greg Howle as "office manager" at the above-mentioned location. Mr. Howle was at no time licensed as a broker or salesman by the Florida Real Estate Commission. On January 29, 1982, William Konwinski visited Respondent's office looking for an apartment to rent for the month of February, 1982. During his visit, Konwinski spoke with Ilana Frank, an office employee of Respondent who was licensed as a salesperson by the Florida Real Estate Commission. During his conference with Ms. Frank, Konwinski signed a rental agreement and gave Ms. Frank $60 as payment for rental services. That contract contained the following clause: If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of your full fee paid. If you do not obtain a rental you are entitled to receive a return of 75 percent of the fee paid, if you make demand within 30 days of this contract date. The contract also contained the clause which provided that ". . . [n]o refunds are made during 30 day period when vacancies can be provided in the area and price range of tenants as indicated in above agreement." In the rental agreement, Mr. Konwinski indicated that he sought a one- bedroom furnished efficiency apartment that would accept pets. After executing the contract and paying the rental fee, Mr. Konwinski was given the names and addresses of two prospective rentals. Mr. Konwinski took the rental listings and within the next two or three days checked the listings and found that one did not accept pets. Konwinski failed to keep an appointment to meet with the landlord at the second property. Thereafter, Mr. Konwinski returned to Respondent's office and spoke again with Ilama Frank concerning available rentals. Ms. Frank apparently checked for additional listings but could locate none that met with Mr. Konwinski's specifications. However, Ms. Frank penciled in on the agreement between Home Hunters V, Inc., and Mr. Konwinski that he would be returned $30 of his $60 fee should Home Hunters V, Inc., be unable to find an apartment for him by January 31, 1982. Gregory Howle, the office manager, signed this addendum to the contract on behalf of Home Hunters V, Inc. On at least two separate occasions thereafter Mr. Konwinski returned to Respondent's office seeking a refund of his deposit, each time speaking to Mr. Howle, the office manager. Howle first told Konwinski that his refund check was in the mail, but later explained that Respondent had instructed him to make no refund. Konwinski never obtained a rental unit through Respondent, but did ultimately receive a partial refund. There is no credible evidence of record in this proceeding to establish that Respondent at any time shared real estate commissions with Gregory Howle. Although there are checks which were introduced into evidence made payable from Home Hunters V, Inc., to Mr. Howle, the record in this cause is devoid of any showing as to what the salary structure between Respondent and Mr. Howle was, or for specifically what services Mr. Howle was compensated. Further, other than speaking with Mr. Konwinski on his initial visit to Respondent's office and obtaining his signature on the rental agreement, referring him then to a licensed salesperson, and again speaking with Mr. Konwinski concerning a refund of his fee, there is no credible evidence of record to establish any other activities engaged in by Mr. Howle while employed by Respondent.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-certified general real estate appraiser, holding license number RZ 2678 and doing business as Easthill Valuation and Consulting (Easthill). He has been doing real estate appraisal work since 1986. Respondent also holds a Florida real estate broker license. HBK Investments (HBK) is a hedge fund headquartered in Dallas, Texas. On June 23, 2006, HBK entered into a written agreement with Easthill in which Easthill agreed, for a $7,500.00 fee, to appraise for HBK the value of the remaining unsold inventory of an uncompleted high-rise, residential condominium project being developed by WCI Communities, Inc., on a barrier island in Pompano Beach, Florida (Ocean Side Project). The agreement did not specify, nor did HBK indicate at any time during the negotiations leading to the agreement, that time was of the essence in completing the appraisal. The agreement2 read, in pertinent part, as follows: * * * The purpose of this appraisal/consultation is to estimate the market value of the fee simple estate reflecting the unsold inventory in the subject property. The report is intended to be used in making internal management decisions related to potential investment by [HBK] related to specific properties, interests, direct investments and/or securities issued by WCI. The assignment is to be a limited appraisal in a summary report format in conformance with, and subject to, the Standards of Professional Practice and Code of Ethics of the Appraisal Institute and the Uniform Standards of Professional Appraisal Practice (USPAP) developed by the Appraisal Standards Board of the Appraisal Foundation. The scope of [Easthill's] assignment is to evaluate the subject property based upon the estimated remaining inventory as of the date of value for the current development based upon information obtained by the appraiser through market research and analysis. [HBK] hereby acknowledges that the subject property is owned, controlled and in the process of development by WCI. [HBK] understands and agrees that [Easthill] will receive information for the report from third party sources and that [Easthill] bears no responsibility (and shall not be liable) for the accuracy or completeness (or lack thereof) of such information. [HBK] understands that despite [Easthill's] best efforts to obtain accurate direct data pertinent to the analysis, such as but not limited to the number of sold and/or unsold units, actual transaction prices, actual or proposed development costs, current price schedules, documents pertaining to the declaration and proposed operation of the condominium development, may not be available. [Easthill] will incorporate market derived information in an effort to estimate these variables in the analysis. [HBK] acknowledges that market derived estimates may vary considerably from the actual amounts expended by WCI and can therefore reflect diverged value indicators which reflect a higher degree of subjectivity versus an analysis performed had the actual information been made available. * * * [Easthill's] fee for this assignment will be $7,500.00 and requires a 50% retainer payment prior to commencement of work with the balance due upon delivery of the report. [Easthill] will provide one bound hard copy and one electronic copy of the report via email in PDF format. The report will be completed and delivered to [HBK} within approximately four (4) to six (6) weeks from receipt of this fully executed engagement letter, the retainer fee and any additional relevant information provided by [HBK]. In the event the assignment is canceled prior to completion, an invoice will be prepared reflecting the percentage of work completed as of that date. Any credits to [HBK] will be promptly returned or any remaining balances to the appraiser will be indicated on the invoice. * * * HBK made the "50% retainer payment" by check dated July 6, 2006. The check (in the amount of $3,750.00) was deposited in Respondent's account at BankAtlantic on July 11, 2006. Thereafter, Respondent began work on the appraisal. Matthew Luth of HBK attempted to contact Respondent by telephone to inquire about the status of the appraisal after four to six weeks had gone by and he had not heard anything from Respondent. Mr. Luth was unsuccessful in his efforts to speak with Respondent, but he did leave "voice mail" messages. Mr. Luth also sent Respondent three e-mails (on August 8, 2006, August 25, 2006, and September 8, 2006) requesting an update on the appraisal. Respondent received neither Mr. Luth's "voice mail" messages, nor the e-mails Mr. Luth had sent. Jon Mosle, HBK's General Counsel, subsequently sent the following letter, dated September 26, 2006, to Respondent: I am the General Counsel for HBK Investments L.P. On June 23, 2006, HBK engaged your company to perform an appraisal related to the Pompano Beach condominium development to be known as Oceans Side. A copy of our signed engagement letter is attached. Promptly after signing the engagement letter, HBK paid the initial $3,750 payment for your services (via our check #2611, which cleared our bank on July 11, 2006). The engagement letter stated that your appraisal would be completed and delivered within approximately four to six weeks, a time frame now long passed. To date, we have seen no evidence of any work on your part. Matt Luth (the business person at HBK, who is responsible for this project) and myself have now tried to contact you numerous times and you have chosen not to return our calls or to provide any update regarding the project. From this information, I can only conclude that you are attempting to steal our retainer. Please be assured that we will not simply stand by and let this happen. If you do not call Matt Luth in the next three days to discuss this matter, we will immediately file a complaint with the State of Florida Department of Business and Professional Regulation. We will then investigate the process for reporting this as a criminal matter to the appropriate authorities. Respondent received Mr. Mosle's letter on October 14, 2006.3 Within a day or two of receiving the letter, Respondent contacted HBK and spoke with Mr. Luth. Respondent apologetically told Mr. Luth that "the report had been delayed," but he "was finishing the assignment and would have it to [HBK] within about a week." Mr. Luth said "that would be fine." The next day, however, Respondent received a telephone call from Mr. Luth, who told him that HBK was "canceling the assignment" because it "no longer needed the report." At the time of HBK's "cancel[lation of] the assignment," Respondent "had completed just about everything there was to complete except for actually writing the narrative report." He had obtained information about the Ocean Side Project, as well 14 other, comparable projects in the area, through public records reviews, on-site visits, and discussions with project staff. The information gathering process had not proceeded as quickly as Respondent had planned inasmuch as it had turned out that project staff were not always accessible at the times it was convenient for Respondent to meet with them. Respondent spent a total of approximately 60 hours collecting and analyzing data for the appraisal. Although the percentage of work that Respondent had completed was greater than the percentage (50%) of the "consultant's fee" he had been paid, Respondent did not ask HBK to pay him any additional monies (notwithstanding that his agreement with HBK authorized the making of such a request). But for HBK's "cancel[lation of] the assignment," Respondent would have delivered the "limited appraisal in summary report format" that he had agreed to provide to HBK.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order dismissing the Administrative Complaint issued against Respondent in its entirety. DONE AND ENTERED this 20th day of February, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2008.
Findings Of Fact Respondent Donald E. Swagler is now and was at all times material a licensed real estate broker or broker/salesman in the State of Florida, having been issued license number 0139756, in accordance with Chapter 475, Florida Statutes. At all times alleged in the Administrative Complaint, respondent Donald Swagler was licensed and operating as a qualifying broker for and an officer of respondent Swagler Realty, Inc., which is now and was at all times material a corporation licensed as a real estate broker in the State of Florida, having been issued license number 0169035, in accordance with Chapter 475, Florida Statutes. At all times material, Fern Z. Taylor was a licensed real estate broker with an office in Bonita Springs, approximately a twenty-minute drive south from the offices of Swagler Realty Company in Ft. Myers. On April 10, 1980, Andrew W. Kuchmaner was working part-time as a licensed real estate salesman in the employ (as that term is defined in Section 475.01(2), Florida Statutes) of Swagler Realty Company. Kuchmaner was a new salesman and had not yet had occasion to present a buyer's purchase offer to a client seller. During the early months of 1980, Kuchmaner was also working in the employ of, and receiving a salary from, Jim Walter Homes Company. Philip R. and Susan B. Workman first met Kuchmaner in January or February 1980 while visiting a Jim Walter's Homes sales office in Ft. Myers where he was working in his capacity as a Jim Walter Homes salesman. Kuchmaner advised the Workmans to find and purchase a lot for the Jim Walter home they had selected, and then they could purchase the Jim Walter home. Jim Walter Homes Company requires lot ownership prior to building one of their homes. Prior to selecting a lot, the Workmans had already decided on the Jim Walter home they were going to purchase, and Kuchmaner was going to do the paperwork for Jim Walter. Throughout the first quarter of 1980, the Workmans searched for a lot on which to construct their home in the Bonita Springs area of southern Lee County. During their search, the Workmans came upon a vacant lot with a sign saying it was for sale by Fern Z. Taylor. Upon seeing her real estate for sale sign, the Workmans went to Fern Taylor's office to inquire about the property and seek her assistance in their purchase of a lot in the Bonita Springs area. Fern Taylor advised the Workmans that, in addition to the lot they had already seen bearing her sign, she had Dust that morning listed and had for sale another lot in the Bonita Springs area which they would be interested in seeing. Earlier that same morning, Taylor took a long distance telephone call from a Charles A. Bennett, a resident of Arizona. Bennett said he had a lot he wanted to sell and gave Taylor the price ($7,000) and a description--Lot 20, Block E, Rosemary Park No. 2, in Bonita Springs. Bennett had not seen the property in some time and gave no landmarks or street address for Taylor's guidance. Back in 1925, Rosemary Park No. 2 was subdivided into eight blocks of 24 140' x 50' lots each and two larger blocks containing 16 larger 162' x 300' lots each. One of the smaller lots bore the legal description: "Lot 20, Block E of Rosemary Park No. 2 according to the Plat thereof recorded in Plat Book 6 at Page 30, of the Public Records of Lee County. This is the lot Bennett owned and was trying to sell. It is located on First Street. In 1926, Rosemary Park No. 2 was re-subdivided. The two larger blocks of the prior subdivision were re-subdivided into eight blocks of 24 140' x 50' lots each. Unfortunately, in a stroke of singular lack of vision, the new blocks and lots were designated with the same letters and numbers already assigned to the smaller blocks and lots in the original 1925 subdivision. As a result, there is another lot in Rosemary Park No. 2 designated as Lot 20, Block E: Lot 20, Block E, Rosemary Park, resubdivision of the East 1/2 of No. 2, according to the plat thereof, as recorded in Plat Book 8, Page 32, in the Public Records of Lee County, Florida. This other Lot 20, Block E, is owned by the Fyfes of Maine and is on Fifth Street. Taylor, who was quite busy, quickly checked a plat book in her office to locate the lot and the tax rolls to attempt far to verify Bennett's ownership and left to put her sign on the lot she thought Bennett owned and was trying to sell. Through a combination of the confusing legal description, the incomplete description and paucity of information Bennett gave Taylor, and Taylor's admitted negligence, Taylor put her for sale sign on the Fyfes' lot on Fifth Street instead of on Bennett's lot on First Street. Taylor had no listing agreement with the Fyfes, and the Fyfes' property was not for sale. Fern Taylor drew a map for the Workmans providing them with directions to this purportedly newly listed lot on which she had placed her "For Sale" sign. In reliance on Fern Taylor's map and representations as to her listing agreement, the Workmans drove to the Fifth Street lot and viewed the property as well as Fern Taylor's "For Sale" sign. Approximately one week after seeing the Fifth Street lot, the Workmans summoned Andrew Kuchmaner to Bonita Springs to view the lot and give them his opinion as to how the Jim Walter home they had previously selected would sit on the lot. The Workmans had their minds pretty well made up that they wanted to purchase the Fifth Street lot before summoning Kuchmaner. Kuchmaner never took the Workmans to any property but, upon their request, traveled to Bonita Springs to meet them and was thereupon shown the Fifth Street lot. While viewing the Fifth Street lot, Kuchmaner advised the Workmans that the Jim Walter's home they had selected would sit nicely on that lot. He also told the Workmans for the first time that he had a real estate license and would be glad to help them out with placing an offer for the lot on their behalf. The Workmans used Kuchmaner to make their $6,000 offer on the lot to save time because it was late in the afternoon and they lived in North Ft. Myers. When Fern Taylor first met Kuchmaner, he had been represented to her by the Workmans as a Jim Walter salesman. Kuchmaner went to Taylor's office and requested she prepare the contract because he would have to go all the way back to Ft. Myers to write it up. Taylor provided Kuchmaner with the legal description "Lot 20, Block E, Rosemary Park #2" and advised him he would have to write his own contract. Kuchmaner also proposed to Taylor that they not tell Swagler or Swagler Realty about the sale so they could divide Swagler's quarter of the 10 percent commission ($150 of the total $600 commission). Taylor refused and told Swagler what had happened. Swagler had an angry confrontation with Kuchmaner and was about to fire him, but Kuchmaner begged for a second chance and promised not to try to cut Swagler out of a commission again. Swagler relented and kept Kuchmaner on as a salesman. Kuchmaner filled out a contract on a Swagler Realty form and brought it to Donald Swagler for his review. He advised Swagler that he had gotten the legal description from Fern Taylor and had been to see the property. Swagler generally does not sell property in the Bonita Springs area and is not familiar with the area. He relied on Taylor to provide an accurate legal description of the property being sold. Kuchmaner hand delivered the contract offering to purchase the Bennett parcel to Taylor. Taylor checked the contract before she sent it to Bennett to see that the legal was the same that she had, and it was. She also checked it again when it was sent back from Bennett. Fern Taylor had received and checked the contract, title insurance binder, seller's closing statement and a copy of the warranty deed from Bennett to Workman prior to the closing The Workmans had the property they thought they were purchasing surveyed by William R. Allen, a registered and licensed land surveyor. He received the request to survey the property from Susan Workman. Over the phone, she advised Mr. Allen she had purchased a lot in Rosemary Park, Specifically lot far 20, block E. Mr. Allen informed Mrs. Workman that there are two Block E's in Rosemary Park and that they should be careful. He inquired as to which street she had purchased property on and was told, "We're on Fifth Street." Allen surveyed the Fifth Street lot and certified his survery, using the actual legal description of the Fifth Street (Fyfes') lot. Allen never saw any document with the legal description of the Bennett lot. Fern Taylor did not know that the Workmans had ordered a survey and did not see a copy of the survey until well after the closing. Although she attended the closing, she saw no discrepancies among the documents cursorily reviewed at the closing. Neither did the Workmans or the closing agent. The evidence was not clear whether there was a copy of the survey among the documents at the closing. The lender (Jim Walter Homes) and the title insurance company got a copy of the survey before closing. Neither of their professionals noticed that the legal description on the survey (the Fyfe lot) did not match the legal description on the deed and other documents (the Bennett lot). When a real estate broker has placed his sign ("For Sale") on a parcel of property, it is a reasonable conclusion that he is authorized to sell that parcel. It is customary for a broker to rely on the listing broker to provide a correct legal description for the property they have listed. At no time before the closing did Swagler or Kuchmaner have reason to suspect that the Workmans were purchasing a parcel of property different from the parcel they believed they were purchasing. Neither Swagler nor Kuchmaner were at the closing of the Workmans' purchase. But their presence would not have made any difference. It is not the real estate broker's or salesman's lob to scrutinize the documents being signed to make sure the legal descriptions on all the documents match (unless he has reason to believe the legal descriptions might be wrong.) He has the right to rely on the other professionals--the listing broker (especially since Fern Taylor was familiar with the Bonita Springs area and Swagler was not), the lender's attorney, the title company, the closing agent and, if any, the surveyor and the buyer's attorney. Fern Taylor and perhaps others were culpably negligent. Swagler and Kuchmaner were not. What happened to the Workmans is not their fault.
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 respondents, Donald E. Swagler and Swagler Realty Company, in this case. RECOMMENDED this 9th day of February, 1987 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 9th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3502 These rulings on proposed findings of fact are made in compliance with Section 120.59(2), Florida Statutes (1985). Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. 5. Rejected as contrary to facts found. (Kuchmaner did not "solicit" or "obtain" them.) 6.-14. Accepted and incorporated. 15. Rejected as contrary to facts found. (Taylor's "investigation" or "attempt" to ascertain the legal description was deficiently and negligently performed.) 16.-17. Accepted and incorporated. First sentence, rejected as incomplete ("compare the deed" with what?); second sentence, rejected because it was not proved Taylor had access to a copy of the survey before the closing. Rejected as unnecessary and potentially misleading. (A Final Judgment was entered; Taylor paid the portion against her; the other defendants have not paid the portions against them.) Rejected. Swagler Realty Company was a defendant in the case; Donald E. Swagler was not. 21.-24. Accepted and incorporated. Rejected as not proved whether they "failed," "refused" or "neglected." (The fact is that neither has paid the Workmans any money in satisfaction of the portion of the Final Judgment against Swagler Realty Company.) Accepted but unnecessary. B. Respondents' Proposed Findings Of Fact. 1. Accepted but unnecessary. 2.-10. Accepted and incorporated. 11. Accepted but unnecessary. 12.-23. Accepted and incorporated. 24.-28. Accepted and incorporated. 29. Accepted but unnecessary. 30.-36. Accepted but cumulative. 37.-42. Accepted and incorporated, along with additional findings. 43. Accepted but unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Fl 32802 J. Michael Hussey, Esquire 3443 Hancock Bridge Parkway Suite 501 North Ft. Myers, Fl 33903 Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32301 Harold Huff Executive Director Division of Real Estate Post Office Box 1900 Orlando, Fl 32802
Findings Of Fact Frederick Hodgdon (Hodgdon) has held Florida real estate broker license 0206805 at all times pertinent to this case. Hodgdon is owner and qualifying broker for Pelican Realty of Marco Island, Inc., (Pelican Realty), through which Hodgdon conducts business and which also is named as a respondent. At all times pertinent, Pelican Realty has held Florida corporate real estate broker license 0223934. July 24 through August 6, 1984, respondents placed the following newspaper advertisement in the Sun-Daze: DO YOU KNOW ... that all Florida real estate brokers are agents for the seller and CANNOT legally propose any lower than listed prices or better terms for the benefit of the buyer? UNLESS ... the broker legally qualifies himself as an agent for the buyer. As a Buyer's Broker Pelican Realty CAN and DOES exactly this and a lot more! Buyers pay no fees or commissions. Call or send for our informative brochure, you will be glad you did. The real estate buyer's best bet for the best price is to have a Buyer's Broker. On February 19, 1986, respondents placed the following newspaper advertisement in the Marco Island Eagle: 1/ BUYER BEWARE! DON'T BUY REAL ESTATE ON MARCO ISLAND. ... before consulting an attorney or carefully reading Paragraph 5) and 7) of the 1985 Revision of the Sales Contract as approved by the Naples Area Board of Realtors and the Marco Island Area Board of Realtors and the Collier County Bar Association contract Revision Committee. The Contract states quote: "The Buyer has inspected the property sold by the Contract and there are no other inspections permitted or required. The property is acceptable in its AS IS condition as of date of this offer. INCREDIBLE! ... What happens to the unwitting Buyer who intends to have termite, structural and seawall inspections AFTER his offer is accepted? He just may have to buy a termite ridden house that needs a new roof and a seawall that is on the verge of collapse. Thats what! ... Taken at face value the Sales contract calls for the buyer to spend several hundred dollars for inspections BEFORE making an offer that may well be turned down. INCREDIBLE! .... Paragraph 7) states quote: "Buyer's decision to buy was based on Buyer's own investigation of the property and not upon any representation, warranty, statement or conduct of the Seller, or broker, or any of Seller's or broker's agents" (Excluding those rare occasions when the seller and his agents remain silent.) INCREDIBLE! ... The above subject sections of Paragraphs 5) and 7) of the 1985 Sales Contract in our opinion may well violate the Realtor's Code of Ethics Article 7) "to treat fairly all parties to the transaction." There is nothing Pelican Realty could say or do to better emphasize the Buyer's need to have an advocate on his side. ... As a Buyer's Broker we recommend striking out any and all terms and conditions of the Sales Contract that are prejudicial to the Buyer's best interests. ... Pelican Realty would appreciate the opportunity to discuss with any interested parties the many advantages of working with a Buyer Broker. Our services are at NO additional expense to the buyer. CALL US FOR FURTHER DETAILS. NOW!! On March 11, 1986, respondents placed the following newspaper advertisement in the Sun-News: CASH BACK FOR THE REAL ESTATE BUYER. THAT'S INCREDIBLE! Pelican Realty GUARANTEES CASH BACK to every buyer on every sale. The bigger the sale, the bigger the cash gift to the buyer. On top of this Pelican Realty (a Buyer's Broker) goes all out to get the lowest possible price for the buyer at NO additional cost to the buyer. Other realtors must get the highest price for the seller. The thousands you SAVE already belong to you. THINK ABOUT IT! Call us for further details NOW! "WE PAY OUR BUYERS TO DO BUSINESS WITH US" There is nothing false or fraudulent about the three advertisements. However, the following statements in the advertisements are deceptive or misleading in form or content: The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that buyers pay no fees or commissions. In form, the buyer perhaps does not pay brokerage fees or commissions. But in substance, the buyer does indirectly pay his broker a brokerage fee or commission when the seller pays fees and commissions out of the proceeds of the sale. The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that a buyer's broker "legally qualifies himself as an agent for the buyer." Although perhaps technically correct, this representation implies separate state regulation and qualification procedures for licensure as a buyer's broker. In fact and in law, any licensed real estate broker can become a buyer's broker simply by entering into an agreement with a buyer to be the buyer's broker. The representation in the March 11, 1986, News-Sun advertisement: "Other realtors must get the highest price for the seller." Read carefully in context, this representation is true--realtors other than those representing a buyer must try to get the highest price for the seller he represents (while being open, honest and fair to the buyer). But, as written, the representation could lead one to believe that the respondents have an ability no other realtors have when, in fact and in law, any realtor or other licensed real estate broker who represents a buyer can try to get the best price for the buyer. Although respondents have offered cash rebates, no client has seen the offer or asked for a rebate. Although respondents have maintained their innocence, they changed the ads to meet the criticism of the Department of Professional Regulation.
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 (1) reprimanding respondents, Frederick Hodgdon and Pelican Realty of Marco Island, Inc., and (2) fining them $500 each for violations of Section 475.25(1)(c), Florida Statutes (1985). RECOMMENDED this 21st day of July, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of July, 1987.
Findings Of Fact At all times material hereto, Respondent Philip Marzo was a real estate broker licensed under the laws of the State of Florida, holding license No. 0217167; and Respondent All Cities Realty, Inc., was a real estate brokerage corporation licensed under the laws of the State of Florida, holding license No. 0217166. At all times material hereto, Respondent Marzo was the qualifying broker for Respondent All Cities Realty, Inc. On May 9, 1981, Gladstone Keith Russell entered into a Service Agreement with All Cities Realty, Inc. Pursuant to the terms of that Agreement, Russell paid $75 in cash to Respondent All Cities Realty, Inc., as an advance rental information fee in exchange for which All Cities Realty, Inc., agreed to provide Russell with listings of available rentals. On or about May 13, 1981, Respondents provided to Russell one listing, which listing was not suitable to Russell. No other listing information was ever provided by Respondents to Russell. Russell obtained his own rental within thirty days from the date of the Service Agreement. This rental was not obtained pursuant to any information supplied to him by Respondents. Within thirty days of the date that All Cities Realty, Inc., contracted to perform real estate services for Russell, Russell telephoned Respondent All Cities Realty, Inc., to demand a return of his $75 deposit. The salesman who took Russell's advance fee was no longer employed at All Cities Realty, Inc., and Russell spoke with Respondent Marzo. Although Russell demanded a refund of his money, Respondent Marzo did not make a refund to Russell. When Russell spoke with Marzo on the telephone, Marzo, instead of returning Russell's money, used delaying tactics and attempts to keep from making the refund. Since his telephone calls proved unsuccessful, Russell returned to the All Cities Realty, Inc., office to obtain a refund from Marzo. Upon arriving at the office, Russell found that All Cities Realty, Inc., had gone out of business, and he was unable to locate Respondent Marzo. Russell has never received a refund of his $75 advance fee paid to the Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Default be entered against Respondents, Philip Marzo and All Cities Realty, Inc., and that a final order be entered finding Respondents, Philip Marzo and All Cities Realty, Inc., guilty of the violations charged in the Administrative Complaints and revoking their real estate licenses. RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 24th day of August, 1982. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Philip Marzo 2920 Missionwood Avenue, West Miramar, Florida 33025 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
