Findings Of Fact The facts in this case were generally undisputed. Respondent is a registered real estate broker and was so acting at all times relevant to the complaint filed herein. Respondent and her husband, George L. Mann, are resident managers of an apartment complex known as Ocean Beach Club at Flagler Beach, Florida. Many of these units are owned by individuals and are rented. Sheldon Carlson owned one of these rented apartments which he had listed with Respondent to sell. Sawyer Young, a businessman from Virginia, was interested in purchasing an apartment in this complex as an investment and after Respondent had showed him two unfurnished units expressed a desire to see a furnished apartment. Respondent showed him the apartment owned by Carlson. Young came back the following morning and asked to see this apartment again after which he submitted an offer to purchase the apartment. This offer was similar to the Contract for Sale and Purchase as shown on Exhibits 1 and 3 with one major exception, viz. that "small appliances, pots, pans, dishes, & etc., and sweeper" had not been deleted. This contract dated January 28, 1976 provided for a deposit of $300 and a purchase price of $30,500. At the time the offer was made Respondent was aware that the seller did not desire to sell the small appliances and kitchen articles, however, this was the offer that was made by the buyer. The contract further provided that if the contract was not accepted by the seller prior to 6:00 P.M. on January 29, 1976 the offer was null and void and the deposit would be returned to the buyer. Upon making the offer the buyer departed for Virginia. Respondent contacted seller, who lived in Mount Dora, by telephone and communicated the offer to him. Carlson told Respondent that he would not include the small appliances, etc. at the offering price and asked her to delete those items from the contract. He confirmed this qualified acceptance of the offer in a mailgram dated 9:19 A.M., January 29, 1976. Upon receipt of this information from seller Respondent deleted those items from the contract that had already been executed by the buyer. When the Respondent contacted the buyer a day or so later in Virginia by telephone and communicated the counter offer of the seller to him he gave every indication that he would accept the changes made by the seller. During the ensuing month Respondent was in communication with the buyer several times to arrange for a closing date. The original closing date was changed by the buyer and shortly before the next scheduled closing date the buyer informed Respondent that he would not go through with the sale and demanded return of his deposit. Respondent advised the buyer that the attorney had performed certain work and the buyer authorized her to pay the attorney the $75 for legal services he had performed. One month later Respondent split the $225 remaining of the deposit between herself and the seller upon the assumption that the buyer had breached the contract. Thereafter a complaint was made to the Real Estate Commission and the investigation and the complaint filed herein followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the real estate license of Keith Allen. DONE and ORDERED this 2nd day of September, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 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 Allan M. Parvey, Esquire Goldberg, Rubinstein & Buckley, P.A. Post Office Box 2366 Fort Myers, Florida 33902
The Issue The issues for determination are whether Respondents violated subsections 475.25(1)(b), Florida Statutes by neglecting to inform the agent of a seller that a deposit was not cash; and whether Respondents violated subsection 475.25(1)(e), Florida Statutes, Section 475.22, Florida Statutes and Rule 21V- 10.022, by failing to maintain an office while licensed as an active broker
Findings Of Fact At all times pertinent to the charges, John A. Sirianni was a licensed real estate broker in the State of Florida, having been issued license number 0132568 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, c/o Sirianni Investments, Inc., with a home address of 300 Valley Drive, Longwood, Florida, 32779. Respondent, Sirianni Investments, Inc. was at all times pertinent to the charges a corporation registered as a real estate broker in the State of Florida, having been issued license number 0207206 in accordance with Chapter 475, Florida Statutes. For some undetermined period the corporation license was inactive. At various times, the addresses for the corporation on file at the Division of Real Estate were: 213 West Park Avenue, Winter Park, Florida; 301 Montgomery Road, Suite 301, Altamonte Springs, Florida; and most recently, 147 W. Lyman Avenue, Winter Park, Florida. At all times pertinent to the charges, Respondent John A. Sirianni was licensed and operating as qualifying broker and officer for Respondent Sirianni Investments, Inc. In October, 1986, Ruth Pelegatto, a real estate broker salesman employed by W. W. and Company, had a listing to sell a parcel owned by Xebec, Inc. and located in Apopka, Florida. On October 12, 1986, Respondents submitted to Ruth Pelegatto a written offer to buy from U.S. EquiGrowth Corporation. The offer, reflected on a form contract for sale and purchase, stated a purchase price of $100,000.00; a $1,000.00 deposit to be held in escrow by Sirianni Investments, Inc. "on acceptance"; a $75,000.00 purchase money mortgage; and $24,000.00 balance to close. The offer also included a contingency clause, giving the buyer 60 days from final acceptance to determine the feasibility of developing the site. If the buyer claimed the site conditions were unacceptable, the contract would be null and void. (Petitioner's Exhibit #2) The time for acceptance was October 15, 1986, reflected in paragraph III of the contract. The seller signed the contract on September 22, 1986, after making several changes in its terms. The purchase money mortgage figure was struck through and initialled and the balance to close was changed from $24,000.00 to $99,000.00, and was initialled. The seller, according to Ms. Pelegatto, did not want to "hold any paper." By the time the contract came back, Sirianni had learned that the property was not appropriate for the development. He claims that Ms. Pelegatto knew that, as he had spoken with her prior to her trying to reach him about the counteroffer. Ms. Pelegatto claims that the refusal of the counteroffer was never communicated to her. She does not claim that acceptance was made, and no evidence of such is apparent on the face of the two copies of the contract in the record, one photocopy and one carbon copy. There are initials by the changes, and a date, 9/24/8- (the second digit does not appear on either copy). The initials and date were not explained. The sale to EquiGrowth was not made. Ms. Pelegatto tried unsuccessfully to reach Sirianni on several occasions. He felt she was trying to salvage the deal and did not respond. Sometime in April, 1987, Xebec asked Ruth Pelegatto for the $1,000.00 deposit. She was still unable to reach Sirianni. The deposit, either a check or promissory note according to Sirianni, had previously been returned by him to the prospective buyer. John Sirianni admitted at the hearing and to DPR investigator, Chris Olsen, that the deposit was never placed in trust as the contract was never accepted. Chris Olsen interviewed Sirianni on June 22, 1987, when Sirianni voluntarily responded to his call and came in to the agency office. Sirianni told him he had closed his brokerage office and was working out of his home. The office closed approximately 30 days before Sirianni talked with Olsen.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the administrative complaint against both Respondents be dismissed. Respectfully submitted and entered this 9th day of November, 1988, in Tallahassee, Florida. MARY CLARK 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 November, 1988. COPIES FURNISHED: Steven W. Johnson, Esquire Darlene F. Keller DPR, Division of Real Estate Executive Director Post Office Box 1900 DPR, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 400 West Robinson Street Orlando, Florida 32801 John A. Sirianni 1740 Carlton Street Bruce D. Lamb, Esquire Longwood, Florida 32779 Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Respondent, John A. Nangle, is now and was at all times material to this matter, a licensed real estate salesman having been issued license number 0340127. He was employed in this capacity by Delray Realty, Inc. until January 4, 1982, when such employment terminated. Respondent did not thereafter become employed by another broker, but instead placed his license on inactive status. After heaving Delray Realty, Inc., Respondent negotiated a sales contract for the sale of a condominium unit from Marion Mowday to Anthony J. and Donna C. Amato, which closed on January 13, 1982. Respondent received $1,500.00 in compensation directly from the purchasers for his efforts in arranging this transaction.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's license for a period of three years. DONE and ENTERED this 28th day of June, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 28th day of June, 1983. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. John A. Nangle 860 North West 8th Avenue Delray, Florida 33444 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether respondent's license as a real estate broker should be disciplined for the reasons cited in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Robert Lee Fountain, Jr. (Fountain), is a licensed real estate broker having been issued license number 0214081 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, Fountain's license was in limbo with a home address of 2124 Shady Oaks Drive, Tallahassee, Florida. At one time, respondent also held a license as a certified building contractor issued by the Construction Industry Licensing Board (Board). Certified copies of documents received in evidence establish that on February 14, 1989, the Board issued an administrative complaint charging respondent with various violations of Chapter 489, Florida Statutes (1987), in conjunction with a construction job undertaken by respondent in Leon County, Florida. After an evidentiary hearing was conducted and a Recommended Order entered, the Board issued a Final Order on April 24, 1991, revoking respondent's license for gross negligence, incompetence and misconduct in the practice of contracting and imposing upon him an administrative fine in the amount of $10,750.00. The order also dismissed charges of fraud and deceit. That order is now final and although respondent disputes the findings in the order which resulted in his license being revoked, he does not deny that the order was rendered and the above action being taken by the Board. The record (transcript and exhibits) which underpins the Board's final order was not entered into evidence in this proceeding. Further, there is no evidence of record that respondent intentionally violated any statute or rule governing the use of either his contractor or real estate licenses.
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 all charges against respondent. RECOMMENDED this 24th day of June, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1992.
Findings Of Fact At all times relevant hereto, respondent, Alexander Alexander, Jr., held real estate salesman license number 0000747 issued by petitioner, Department of Professional Regulation, Division of Real Estate (Division). He has been licensed by the Division since 1971. He has worked for Earl Hollis, Inc., a Palm Beach realty firm, since 1980. Respondent has never been the subject of disciplinary action prior to the filing of this complaint. The administrative complaint alleges that respondent failed to deposit in his employer's trust account certain funds received from a prospective purchaser in conjunction with a real estate transaction handled by respondent in early 1986, and that respondent made false representations to the listing broker during the course of his dealings. The transaction in question had its origins in late 1985 when Linda O'Connell, a well-to-do housewife from Dallas, Texas, contacted respondent and requested his services in locating a Palm Beach County residential property adjacent to the ocean or intracoastal waterway. After a one month search, respondent located a waterfront property at 2020 South Ocean Boulevard in Manalapan, Florida. The property was a large home fronting the ocean on one side and the intracoastal waterway on the other. The house was then owned by Kudu Shipping Corporation, S.A. (Kudu), an entity with offices in London, England. When the property was first listed, the asking price was $2,300,000. By now, this price had dropped to $1,750,000. Merrill Lynch Realty (MLR), a real estate firm in Palm Beach, had obtained an exclusive one-year listing on the property for calendar year 1985. This meant the property could be shown only in the presence of a sales representative of that firm. MLR's associate manager, Deborah M. Clark, was the firm's contact person for parties interested in inspecting and making offers on the house. Although the exclusive listing expired on January 1, 1986, it was renewed by Clark about thirty days later for another year. On January 14, 1986, Linda O'Connell and her husband, Tom, in the presence of respondent and Clark, inspected the house in question. During the course of the inspection Clark mentioned to the O'Connells that, in light of other offers she had received, she did not think the seller would make any needed repairs or agree to owner financing. However, because the property was in disrepair, Tom O'Connell did not think $1,750,000 was a fair asking price. Linda O'Connell liked the home and requested that respondent prepare an offer in the amount of $1,300,000 with financing and inspection contingencies. She also gave respondent a check in the amount of $10,000 but specifically asked that respondent not deposit the check until she was sure Kudu was serious about accepting her offer. It was her intention that respondent merely hold the check as evidence of "good faith," and if Kudu expressed interest in the offer, she would then use the $10,000 as a part of the ten percent earnest money deposit required by the contract. According to respondent, O'Connell's instructions were not "unusual" and were occasionally made by customers on large transactions. In contrast, checks were never held by MLR, and a contract would not be presented until the check was given to the firm for immediate deposit in its trust account. In any event, when he accepted the check, respondent considered it to be "an earnest money deposit." The offer was prepared on the standard real estate contract form, was dated January 14, 1986, and listed only Linda O'Connell (but not her husband) as buyer. It contained a notation that Earl Hollis, Inc. would hold a ten percent deposit, or $130,000, in escrow, with the following explanation: "$10,000 rec'd 1/14/86; balance of $120,000 payable upon acceptance of contract." It also contained contingency clauses for O'Connell to obtain a $1,040,000 mortgage for a term of fifteen years and for the seller to repair any deficiencies found in the seawall, roof, or electrical and plumbing systems. After preparing the offer, and pursuant to Clark's request, respondent carried the original contract and a copy of O'Connell's check to Clark on January 15. Consistent with O'Connell's instructions, respondent retained the original check in his office file and did not give it to his employer for deposit in the firm's escrow account. Other than advising Clark that he had a $10,000 check from O'Connell, there were no further conversations by the two concerning the deposit. Respondent did not tell Clark that the $10,000 check had not been deposited. Even so, there was no intent on the part of respondent to deceive or trick the seller or to conceal any material matters. Clark mailed Kudu the offer on January 15. On January 24, she received by return mail the contract from Kudu. The contract carried an illegible signature of a Kudu principal, and had been amended by increasing the selling price from $1,300,000 to $1,650,000 and providing that the owner would not authorize any financing on the house or make needed repairs. Because the sellers had increased the selling price and rejected the contingencies, Clark "guessed" the O'Connells' original offer had been rejected. After respondent was advised by Clark of this counteroffer, he relayed the information to the O'Connells. Because Tom knew his wife wanted the house, he agreed to up the price to $1,500,000. Respondent telephoned this figure to Clark. During the course of their conversation, Clark told respondent she had just received a full price offer with no contingencies from another interested buyer, Omnitek Intertrade Corporation (Omnitek), a Fort Worth, Texas firm. Believing that the house might be sold to another buyer, Linda O'Connell advised respondent around noon on Saturday, January 25, that she would accept Kudu's counteroffer of $1,650,000 with no contingencies. Linda and respondent met at the West Palm Beach airport the same day where she executed the contract and gave respondent a check in the amount of $165,000. However, she asked that he hold it for two or three days so that she could return to Dallas and transfer funds into the bank account on which the check was drawn. At the same time, she asked for and received her original $10,000 check which had been held by respondent but never deposited. Since it was a Saturday when the two met, respondent could not give the second check to his employer until the following Monday, January 27. This was because Gloria More was the only person in Earl Hollis, Inc. who could make deposits and she did not work on weekends. Further, the banks were closed. Respondent held the check until either Monday or early Tuesday morning and then gave it to More who deposited it in the firm's trust account on Tuesday, January 28. This is confirmed by the firm's deposit slip, which reflects the check was deposited in the bank on January 28. That same weekend respondent carried the contract and a copy of the $165,000 check to MLR. Since Clark was not there, respondent simply left the documents at her office. However, on Monday he telephoned Clark and told her he was "holding" a $165,000 check for the transaction. There was no representation by respondent, either express or implied, that Earl Hollis, Inc. had $175,000 in its trust account for this transaction. By now Mr. O'Connell was having second thoughts about paying $1,650,000 for the house and suspected he may have been snookered into raising his offer by Clark's vague reference to another pending full-price contract. These suspicions may have been well-founded since it turned out the Omnitek contract was not for the full price of $1,750,000, but was for $50,000 less, and had some standard contingencies. It also turned out that when the O'Connells inspected the property on January 14, contrary to Clark's representations, she had not yet received any written offers on the house. Mr. O'Connell accordingly requested a copy of the other so-called "full offer" contract from MLR. After having no luck, he wrote the president of Merrill Lynch stating he would not be bound by his wife's offer unless he was given information regarding the so- called "full offer" contract. On Wednesday, January 29, Linda O'Connell directed her bank to stop payment on the $165,000 check. The check was later returned to Earl Hollis, Inc. with a notation of "Insufficient Funds." 1/ For the first time, respondent and his employer learned of O'Connell's stop-payment order. There is no question that, had the O'Connells followed through with the sale, they had sufficient assets to cover the check and buy the house. On February 6, an MLR secretary telephoned the Texas bank on which the $165,000 check had been drawn. The firm learned that a stop-payment order had been placed on the check. Clark then telephoned respondent to give him this information. Clark later filed a complaint against respondent with the Division charging that respondent had failed to deposit the initial $10,000 deposit. This prompted the initiation of this proceeding. The Kudu house was eventually sold to another buyer for $1,315,000.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 475.25(1)(k), Florida Statutes (1985), as alleged in Count I, and that he pay a $500 fine. DONE AND ORDERED this 22nd day of December, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 22nd day of December, 1987.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. During times material herein, Respondent, George May, was a licensed real estate broker (License No. 00056693) whose principal business address is 2300 West Oakland Park Boulevard, Suite 202, Fort Lauderdale, Florida 33311. On April 24, 1980, George Aro, a licensed real estate salesman, was employed by Respondent and entered into an employment agreement whereby salesman Aro, while acting in his capacity as a real estate salesman, would receive a sixty percent (60 percent) share of commission fees paid when salesman Aro was the procuring cause of a realty transaction which resulted in the payment of a commission. (See Petitioner's Exhibit 1). On August 29, 1980, salesman Aro discussed, negotiated, and obtained a contract for purchase whereby Peter Licato agreed to purchase a vacant lot in Palm Beach County, Florida. The transaction closed during September, 1980, with Respondent receiving a commission of approximately $300.00 on the Licato transaction. (See Petitioner's Exhibit 2). Pursuant to the employment agreement entered between Respondent and salesman Aro, Messr. Aro demanded his pro-rata share of the commission paid, which was received by Respondent. Respondent refuses to account for, or otherwise deliver to salesman Aro any portion of the commission received from the Licato transaction. On August 9, 1980, salesman Aro, while acting in his capacity as salesman with Respondent, negotiated and obtained a contract of the sale of a vacant lot in Palm Beach County, Florida from seller, Mrs. Nicholas Deickmann to purchaser, Hooshang Abid. The transaction closed sometime during September of 1980, and Respondent received a commission of approximately $330.00. Pursuant to the party's employment agreement, salesman Aro demanded his pro-rata share of the commission received, and Respondent refuses to remit or otherwise deliver to salesman Aro his portion of the commission received. In this regard the Respondent does not dispute and stipulated that salesman Aro was the procuring cause of the above-referred-to transactions, and admits that the commissions were received. Respondent's Defense Respondent defended his failure to account for or otherwise deliver to salesman Aro commissions received from the above transactions on the theory that salesman Aro failed to attend the closings of the above transactions, or that salesman Aro obligated his firm to pay certain expenses which were connected with the closing, which were not authorized. Respondent's defense was considered by the undersigned and rejected for lack of proof. Moreover, the undersigned advised Respondent during the hearing herein that the proper procedure to seek redress from salesman Aro for those claims asserted herein, which were not a part of the subject administrative complaint, is through the filing of a written complaint properly executed, with the Board of Real Estate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's real estate broker's license be suspended for a period of two (2) years. RECOMMENDED this 25th day of August, 1981, 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 25th day of August, 1981. COPIES FURNISHED: John R. Huskins, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. George May 2300 West Oakland Park Blvd. Suite 202 Fort Lauderdale, Florida 33311
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges in the Administrative Complaint be DISMISSED. DONE and ENTERED this 1st day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1982.
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 After Respondent Kout was unsuccessful in his judicial review of the Board's Order suspending his real estate salesman's license, the Board confirmed his sixty-day suspension commencing November 20, 1978. The license that was suspended had expired on September 30, 1978, and had not been renewed. During November, 1978, Kout submitted an incomplete application which was returned, corrected and resubmitted; the Hoard received this on January 10, 1978, and subsequently issued a license with an effective date of November 20, 1978. The Board's computer, records notwithstanding, did not know of the suspension until March, 1978, and did not know of the issuance of the license until August, 1978, when the Keyes Company forwarded Kout's affidavit that his Registration Certificate had been stolen. Keyes was informed that the license was suspended as no renewal had been received. Application was made and Kout's license reissued. Until his license was stolen, along with his wallet, Kout carried the license issued in January, 1979, and assumed he had been reinstated on January 19, 1979, at the end of the sixty-day suspension. Conclusions The Board contends that under the above facts, Kout operated without a valid current real estate license between November 20, 1978, and August 21, 1979, and specifically during June, 1979, regarding the Bentkowski sale, discussed under Count I, as required by Section 474.42(1)(a), Florida Statutes (1977 and 1979)(misdemeanor), and therefore contrary to Sections 457.25(1)(a), Florida Statutes (1977), and 474.25(1)(b) Florida Statutes (1979)(revocation/suspension for violating the real estate law). There is no doubt that confusion existed between the Board's records and computer as to what the current status of Kout's license was during the period in question. However, absent rebutting evidence by the Board of the testimony of Kout, the allegations of the Board are not supported by the evidence.
Recommendation It is , therefore, RECOMMENDED: That Count I and Count II of the Petition of the Board of Real Estate be dismissed with prejudice. DONE and ORDERED this 28th day of August, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed this 28th day of August with the Clerk of the Division of Administrative Hearings. COPIES FURNISHED: Ms. Nancy Kelley Wittenberg Secretary, Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mr. C.B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Staff Attorney Department of Professional Regulation Board of Real Estate 2009 Apalachee Parkway Tallahassee, Florida 32301 David M. Rogerio, Esquire Blackwell, Walker, Gray, Powers, Flick and Hoehl 2400 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131
